Law On Election Cases

G.R. No.
181613
Republic of the Philippines

SUPREME COURT
Manila
2. The petition for disqualification failed to submit convincing and

substantial evidence against Penera for violation of Section 80 of the
Omnibus Election Code.
EN BANC
3. Penera never admitted the allegations of the petition for

disqualification and has consistently disputed the charge of
premature campaigning.
November 25, 2009
4. The admission that Penera participated in a motorcade is not the

same as admitting she engaged in premature election campaigning.
ROSALINDA A. PENERA, Petitioner,

vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR,
Respondents.
Section 79(a) of the Omnibus Election Code defines a "candidate"

as "any person aspiring for or seeking an elective public office, who
has filed a certificate of candidacy x x x." The second sentence, third
paragraph, Section 15 of RA 8436, as amended by Section 13 of RA
9369, provides that "[a]ny person who files his certificate of
candidacy within [the period for filing] shall only be considered as a
candidate at the start of the campaign period for which he filed his
certificate of candidacy." The immediately succeeding proviso in the
same third paragraph states that "unlawful acts or omissions
applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period." These two provisions determine the
resolution of this case.
RE S O LUTI ON
CARPIO, J.:
We grant Rosalinda A. Peneras (Penera) motion for reconsideration
of this Courts Decision of 11 September 2009 (Decision).
The assailed Decision dismissed Peneras petition and affirmed the
Resolution dated 30 July 2008 of the COMELEC En Banc as well as
the Resolution dated 24 July 2007 of the COMELEC Second
Division. The Decision disqualified Penera from running for the
office of Mayor in Sta. Monica, Surigao del Norte and declared that
the Vice-Mayor should succeed Penera.
The Decision states that "[w]hen the campaign period starts and [the
person who filed his certificate of candidacy] proceeds with his/her
candidacy, his/her intent turning into actuality, we can already
consider his/her acts, after the filing of his/her COC and prior to the
campaign period, as the promotion of his/her election as a candidate,
hence, constituting premature campaigning, for which he/she may
be disqualified."1
In support of her motion for reconsideration, Penera submits the

following arguments:
1. Penera was not yet a candidate at the time of the incident under
Section 11 of RA 8436 as amended by Section 13 of RA 9369.
LAW ON ELECTION
Under the Decision, a candidate may already be liable for premature
campaigning after the filing of the certificate of candidacy but even

before the start of the campaign period. From the filing of the
certificate of candidacy, even long before the start of the campaign
period, the Decision considers the partisan political acts of a person
so filing a certificate of candidacy "as the promotion of his/her
election as a candidate." Thus, such person can be disqualified for
premature campaigning for acts done before the start of the
campaign period. In short, the Decision considers a person who files
a certificate of candidacy already a "candidate" even before the start
of the campaign period. lawphil
of candidacy on the last day, which under Section 75 of the Omnibus

Election Code is the day before the start of the campaign period,
then no one can be prosecuted for violation of Section 80 for acts
done prior to such last day. Before such last day, there is no
"particular candidate or candidates" to campaign for or against. On
the day immediately after the last day of filing, the campaign period
starts and Section 80 ceases to apply since Section 80 covers only
acts done "outside" the campaign period.
Thus, if all candidates file their certificates of candidacy on the last
day, Section 80 may only apply to acts done on such last day, which
is before the start of the campaign period and after at least one
candidate has filed his certificate of candidacy. This is perhaps the
reason why those running for elective public office usually file their
certificates of candidacy on the last day or close to the last day.
The assailed Decision is contrary to the clear intent and letter of the
law.
The Decision reverses Lanot v. COMELEC, 2 which held that a
person who files a certificate of candidacy is not a candidate
until the start of the campaign period. In Lanot, this Court
explained:
There is no dispute that Eusebios acts of election campaigning or

partisan political activities were committed outside of the campaign
period. The only question is whether Eusebio, who filed his
certificate of candidacy on 29 December 2003, was a "candidate"
when he committed those acts before the start of the campaign
period on 24 March 2004.
Thus, the essential elements for violation of Section 80 of the

Omnibus Election Code are: (1) a person engages in an election
campaign or partisan political activity; (2) the act is designed to
promote the election or defeat of a particular candidate or
candidates; (3) the act is done outside the campaign period.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the

deadline for the filing of certificates of candidacy to 120 days before
election day. Thus, the original deadline was moved from 23 March
2004 to 2 January 2004, or 81 days earlier. The crucial question is:
did this change in the deadline for filing the certificate of candidacy
make one who filed his certificate of candidacy before 2 January
2004 immediately liable for violation of Section 80 if he engaged in
election campaign or partisan political activities prior to the start of
the campaign period on 24 March 2004?
The second element requires the existence of a "candidate." Under

Section 79(a), a candidate is one who "has filed a certificate of
candidacy" to an elective public office. Unless one has filed his
certificate of candidacy, he is not a "candidate." The third element
requires that the campaign period has not started when the election
campaign or partisan political activity is committed.
Assuming that all candidates to a public office file their certificates
LAW ON ELECTION
Section 11 of RA 8436 provides:
and/or the Bangko Sentral ng Pilipinas at the price comparable with

that of private printers under proper security measures which the
Commission shall adopt. The Commission may contract the services
of private printers upon certification by the National Printing
Office/Bangko Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and deputized citizens
arms of the Commission may assign watchers in the printing,
storage and distribution of official ballots.
SECTION 11. Official Ballot. The Commission shall prescribe the

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

Committee shall ensure that the serial number on the ballot stub
shall be printed in magnetic ink that shall be easily detectable by
inexpensive hardware and shall be impossible to reproduce on a
photocopying machine, and that identification marks, magnetic
strips, bar codes and other technical and security markings, are
provided on the ballot.
Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/ manifestation to participate in
the election shall not be later than one hundred twenty (120) days
before the elections: Provided, That, any elective official, whether
national or local, running for any office other than the one which
he/she is holding in a permanent capacity, except for president and
vice-president, shall be deemed resigned only upon the start of the
campaign period corresponding to the position for which he/she is
running: Provided, further, That, unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the
aforesaid campaign period: Provided, finally, That, for purposes of
the May 11, 1998 elections, the deadline for filing of the certificate
of candidacy for the positions of President, Vice-President, Senators
and candidates under the party-list system as well as petitions for
registration and/or manifestation to participate in the party-list
system shall be on February 9, 1998 while the deadline for the filing
of certificate of candidacy for other positions shall be on March 27,
1998.
The official ballots shall be printed and distributed to each

city/municipality at the rate of one (1) ballot for every registered
voter with a provision of additional four (4) ballots per precinct.
Under Section 11 of RA 8436, the only purpose for the early filing
of certificates of candidacy is to give ample time for the printing of
official ballots. This is clear from the following deliberations of the
Bicameral Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign
period, would it be the same[,] uniform for local and national
officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree
to retaining it at the present periods.
The official ballots shall be printed by the National Printing Office
LAW ON ELECTION
SENATOR GONZALES. But the moment one files a certificate of

candidacy, hes already a candidate, and there are many prohibited
acts on the part of candidate.
SENATOR GONZALES. How about prohibition against

campaigning or doing partisan acts which apply immediately upon
being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention

of this provision is just to afford the Comelec enough time to print
the ballots, this provision does not intend to change the campaign
periods as presently, or rather election periods as presently fixed by
existing law.
SENATOR GONZALES. And you cannot say that the campaign

period has not yet began (sic).
THE CHAIRMAN (REP. TANJUATCO). If we dont provide that
the filing of the certificate will not bring about ones being a
candidate.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be

subject to the other prohibition.
THE CHAIRMAN (REP. TANJUATCO). Thats right.
SENATOR GONZALES. If thats a fact, the law cannot change a

fact.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

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

there would be no conflict anymore because we are talking about the
120-day period before election as the last day of filing a certificate
of candidacy, election period starts 120 days also. So that is election
period already. But he will still not be considered as a candidate.
Thus, because of the early deadline of 2 January 2004 for purposes
of printing of official ballots, Eusebio filed his certificate of
candidacy on 29 December 2003. Congress, however, never
intended the filing of a certificate of candidacy before 2 January
2004 to make the person filing to become immediately a "candidate"
for purposes other than the printing of ballots. This legislative intent
prevents the immediate application of Section 80 of the Omnibus
Election Code to those filing to meet the early deadline. The clear
intention of Congress was to preserve the "election periods as x x x
fixed by existing law" prior to RA 8436 and that one who files to
So, with the manifestations from the Commission on Elections, Mr.

Chairman, the House Panel will withdraw its proposal and will
agree to the 120-day period provided in the Senate version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr.
Chairman.
xxxx
LAW ON ELECTION
meet the early deadline "will still not be considered as a candidate." 3

(Emphasis in the original)
participate in the election. Any person who files his certificate of

candidacy within this period shall only be considered as a candidate
at the start of the campaign period for which he filed his certificate
of candidacy: Provided, That, unlawful acts or omissions applicable
to a candidate shall take effect only upon the start of the aforesaid
campaign period: Provided, finally, That any person holding a public
appointive office or position, including active members of the armed
forces, and officers and employees in government-owned or
-controlled corporations, shall be considered ipso facto resigned
from his/her office and must vacate the same at the start of the day
of the filing of his/her certificate of candidacy. (Boldfacing and
underlining supplied)
Lanot was decided on the ground that one who files a certificate of
candidacy is not a candidate until the start of the campaign period.
This ground was based on the deliberations of the legislators who
explained the intent of the provisions of RA 8436, which laid the
legal framework for an automated election system. There was no
express provision in the original RA 8436 stating that one who files
a certificate of candidacy is not a candidate until the start of the
campaign period.
When Congress amended RA 8436, Congress decided to expressly
incorporate the Lanot doctrine into law, realizing that Lanot merely
relied on the deliberations of Congress in holding that
Congress elevated the Lanot doctrine into a statute by specifically

inserting it as the second sentence of the third paragraph of the
amended Section 15 of RA 8436, which cannot be annulled by this
Court except on the sole ground of its unconstitutionality. The
Decision cannot reverse Lanot without repealing this second
sentence, because to reverse Lanot would mean repealing this
second sentence.
The clear intention of Congress was to preserve the "election periods

as x x x fixed by existing law" prior to RA 8436 and that one who
files to meet the early deadline "will still not be considered as a
candidate."4 (Emphasis supplied)
xxx
The assailed Decision, however, in reversing Lanot does not claim

that this second sentence or any portion of Section 15 of RA 8436,
as amended by RA 9369, is unconstitutional. In fact, the Decision
considers the entire Section 15 good law. Thus, the Decision is selfcontradictory reversing Lanot but maintaining the
constitutionality of the second sentence, which embodies the Lanot
doctrine. In so doing, the Decision is irreconcilably in conflict with
the clear intent and letter of the second sentence, third paragraph,
Section 15 of RA 8436, as amended by RA 9369.
For this purpose, the Commission shall set the deadline for the filing
of certificate of candidacy/petition for registration/manifestation to
In enacting RA 9369, Congress even further clarified the first

proviso in the third paragraph of Section 15 of RA 8436. The
Congress wanted to insure that no person filing a certificate of

candidacy under the early deadline required by the automated
election system would be disqualified or penalized for any partisan
political act done before the start of the campaign period. Thus, in
enacting RA 9369, Congress expressly wrote the Lanot doctrine into
the second sentence, third paragraph of the amended Section 15 of
RA 8436, thus:
LAW ON ELECTION
original provision in RA 8436 states
aggroupment or coalition of parties." However, it is no longer

enough to merely file a certificate of candidacy for a person to be
considered a candidate because "any person who files his certificate
of candidacy within [the filing] period shall only be considered a
certificate of candidacy." Any person may thus file a certificate of
candidacy on any day within the prescribed period for filing a
certificate of candidacy yet that person shall be considered a
candidate, for purposes of determining ones possible violations of
election laws, only during the campaign period. Indeed, there is no
"election campaign" or "partisan political activity" designed to
promote the election or defeat of a particular candidate or candidates
to public office simply because there is no "candidate" to speak of
prior to the start of the campaign period. Therefore, despite the filing
of her certificate of candidacy, the law does not consider Penera a
candidate at the time of the questioned motorcade which was
conducted a day before the start of the campaign period. x x x
x x x Provided, further, That, unlawful acts or omissions applicable

to a candidate shall take effect upon the start of the aforesaid
campaign period, x x x.
In RA 9369, Congress inserted the word "only" so that the first
proviso now reads
x x x Provided, That, unlawful acts or omissions applicable to a
candidate shall take effect only upon the start of the aforesaid
campaign period x x x. (Emphasis supplied)
Thus, Congress not only reiterated but also strengthened its
mandatory directive that election offenses can be committed by a
candidate "only" upon the start of the campaign period. This clearly
means that before the start of the campaign period, such election
offenses cannot be so committed.
The campaign period for local officials began on 30 March 2007 and
ended on 12 May 2007. Penera filed her certificate of candidacy on
29 March 2007. Penera was thus a candidate on 29 March 2009 only
for purposes of printing the ballots. On 29 March 2007, the law still
did not consider Penera a candidate for purposes other than the
printing of ballots. Acts committed by Penera prior to 30 March
2007, the date when she became a "candidate," even if constituting
election campaigning or partisan political activities, are not
punishable under Section 80 of the Omnibus Election Code. Such
acts are within the realm of a citizens protected freedom of
expression. Acts committed by Penera within the campaign period
are not covered by Section 80 as Section 80 punishes only acts
outside the campaign period.5
When the applicable provisions of RA 8436, as amended by RA

9369, are read together, these provisions of law do not consider
Penera a candidate for purposes other than the printing of ballots,
until the start of the campaign period. There is absolutely no room
for any other interpretation.
We quote with approval the Dissenting Opinion of Justice Antonio
T. Carpio:
x x x The definition of a "candidate" in Section 79(a) of the
Omnibus Election Code should be read together with the amended
Section 15 of RA 8436. A "candidate refers to any person aspiring
for or seeking an elective public office, who has filed a certificate of
candidacy by himself or through an accredited political party,
LAW ON ELECTION
The assailed Decision gives a specious reason in explaining away
the first proviso in the third paragraph, the amended Section 15 of

RA 8436 that election offenses applicable to candidates take effect
only upon the start of the campaign period. The Decision states that:
It is a basic principle of law that any act is lawful unless expressly

declared unlawful by law. This is specially true to expression or
speech, which Congress cannot outlaw except on very narrow
grounds involving clear, present and imminent danger to the State.
The mere fact that the law does not declare an act unlawful ipso
facto means that the act is lawful. Thus, there is no need for
Congress to declare in Section 15 of RA 8436, as amended by RA
9369, that political partisan activities before the start of the
campaign period are lawful. It is sufficient for Congress to state that
"any unlawful act or omission applicable to a candidate shall take
effect only upon the start of the campaign period." The only
inescapable and logical result is that the same acts, if done before
the start of the campaign period, are lawful.
x x x [T]he line in Section 15 of Republic Act No. 8436, as

amended, which provides that "any unlawful act or omission
applicable to a candidate shall take effect only upon the start of the
campaign period," does not mean that the acts constituting
premature campaigning can only be committed, for which the
offender may be disqualified, during the campaign period. Contrary
to the pronouncement in the dissent, nowhere in said proviso was it
stated that campaigning before the start of the campaign period is
lawful, such that the offender may freely carry out the same with
impunity.
In laymans language, this means that a candidate is liable for an

election offense only for acts done during the campaign period, not
before. The law is clear as daylight any election offense that may
be committed by a candidate under any election law cannot be
committed before the start of the campaign period. In ruling that
Penera is liable for premature campaigning for partisan political acts
before the start of the campaigning, the assailed Decision ignores
the clear and express provision of the law.
As previously established, a person, after filing his/her COC but

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

campaigning can be disqualified or prosecuted only after the start of
the campaign period. This is not what the law says. What the law
says is "any unlawful act or omission applicable to a candidate shall
take effect only upon the start of the campaign period." The plain
meaning of this provision is that the effective date when partisan
political acts become unlawful as to a candidate is when the
campaign period starts. Before the start of the campaign period, the
same partisan political acts are lawful.
The law does not state, as the assailed Decision asserts, that partisan
political acts done by a candidate before the campaign period are
unlawful, but may be prosecuted only upon the start of the campaign
period. Neither does the law state that partisan political acts done by
a candidate before the campaign period are temporarily lawful, but
becomes unlawful upon the start of the campaign period. This is
clearly not the language of the law. Besides, such a law as
envisioned in the Decision, which defines a criminal act and curtails
freedom of expression and speech, would be void for vagueness.
respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue

as Mayor of Sta. Monica, Surigao del Norte.
Congress has laid down the law a candidate is liable for election
offenses only upon the start of the campaign period. This Court has
no power to ignore the clear and express mandate of the law that
"any person who files his certificate of candidacy within [the filing]
period shall only be considered a candidate at the start of the
campaign period for which he filed his certificate of candidacy."
Neither can this Court turn a blind eye to the express and clear
language of the law that "any unlawful act or omission applicable to
a candidate shall take effect only upon the start of the campaign
period."
DISSENTING OPINION
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
CHICO-NAZARIO, J.:
On 11 September 2009, the Court rendered a Decision in the instant
case disqualifying Rosalinda A. Penera from running as Mayor of
Sta. Monica, Surigao Del Norte for engaging in the prohibited act of
premature campaigning.
Penera forthwith filed a Motion for Reconsideration 1 of the above
Decision, invoking the following arguments, to wit:
The forum for examining the wisdom of the law, and enacting
remedial measures, is not this Court but the Legislature. This Court
has no recourse but to apply a law that is as clear, concise and
express as the second sentence, and its immediately succeeding
proviso, as written in the third paragraph of Section 15 of RA 8436,
as amended by RA 9369.
1) Penera was not yet a candidate at the time of the incident under
Section 11 of Republic Act No. 8436, as amended by Section 13 of
Republic Act No. 9369.2
2) Section 80 of the Omnibus Election Code was expressly repealed
by Republic Act No. 9369.3
WHEREFORE, we GRANT petitioner Rosalinda A. Peneras

Motion for Reconsideration. We SET ASIDE the Decision of this
Court in G.R. No. 181613 promulgated on 11 September 2009, as
well as the Resolutions dated 24 July 2007 and 30 January 2008 of
the COMELEC Second Division and the COMELEC En Banc,
LAW ON ELECTION
3) The petition for disqualification failed to submit convincing and

substantial evidence against Penera for violation of Section 80 of the
Omnibus Election Code.4
4) Penera never admitted the allegations of the petition for

disqualification and has consistently disputed the charge of
premature campaigning.5
criminal liability for premature campaigning would have been

preemptive and nothing more than obiter dictum.
With respect to the assertion that Penera never admitted the
allegations of the petition for disqualification and has consistently
disputed the charge of premature campaigning, the same is utterly
without merit. Penera admitted participating in the motorcade after
filing her COC. What she merely denied and/or refuted were the
minor details concerning the conduct of said motorcade.
5) The admission that Penera participated in a motorcade is not the

same as admitting she engaged in premature election campaigning.6
I vote to deny the Motion for Reconsideration.
Peneras Motion for Reconsideration
Likewise, Peneras contention that her admission of participating in

the motorcade in this case is not the same as admitting that she
engaged in premature campaigning deserves scant consideration.
Logically, to admit to the elements constituting the offense of
premature campaigning is to admit to the commission of the said
offense. Precisely, it is the act of participating in the motorcade after
the filing of her COC that constituted the prohibited act of
premature campaigning in the instant case.
The basic issues in the Motion for Reconsideration were already

passed upon in the Decision dated 11 September 2009 and no
substantial arguments were raised.
The grounds that: (1) Penera was not yet a candidate at the time of
the incident under Section 11 of Republic Act No. 8436, as amended
by Section 13 of Republic Act No. 9369; (2) Section 80 of the
Omnibus Election Code was expressly repealed by Republic Act No.
9369; and (3) the petition for disqualification failed to submit
convincing and substantial evidence against Penera for violation of
Section 80 of the Omnibus Election Code are all reiterations of her
previous arguments before the Court and the same had already been
adequately addressed in the Decision dated 11 September 2009.
Finally, the claim of Penera that not all motorcades are designed to
promote the election of a candidate is unimpressive. Clearly, the
context of the discussion on motorcades in the Decision dated 11
September 2009 was disregarded. The discussion pertained to
motorcades conducted during election periods by candidates and
their supporters. In such an instance, a motorcade assumes an
entirely different significance and that is to promote a candidate.
Incidentally, Penera herself disclosed in her Motion for

Reconsideration that she is the respondent in a criminal case filed by
Edgar T. Andanar for the commission of election offenses in
violation of the Omnibus Election Code, which is docketed as EO
Case No. 08-99.7 Thus, the pronouncement in the Decision dated 11
September 2009 that the instant case should concern only the
electoral aspect of the disqualification case finds more reason. As
noted in the Decision, any discussion on the matter of Peneras
LAW ON ELECTION
As held in the Decision dated 11 September 2009, the conduct of a

motorcade during election periods is a form of election campaign or
partisan political activity, falling squarely within the ambit of
Section 79(b)(2) of the Omnibus Election Code, on "[h]olding
political caucuses, conferences, meetings, rallies, parades, or other
similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a

candidate[.]" The obvious purpose of the conduct of motorcades
during election periods is to introduce the candidates and the
positions to which they seek to be elected to the voting public; or to
make them more visible so as to facilitate the recognition and
recollection of their names in the minds of the voters come election
time.
Under Section 79(a) of the Omnibus Election Code, a candidate is

"any person aspiring for or seeking an elective public office, who
has filed a certificate of candidacy by himself or through an
accredited political party, aggroupment, or coalition of parties." On
the other hand, the second sentence in the third paragraph of Section
15 of Republic Act No. 8436, as amended by Republic Act No.
9369, states that "[a]ny person who files his certificate of candidacy
within this period shall only be considered as a candidate at the start
of the campaign period for which he filed his certificate of
candidacy." The first proviso in the same paragraph provides that
"unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period."
The pretense that the motorcade was only a convoy of vehicles,

which was entirely an unplanned event that dispersed eventually,
does not hold water. After filing their certificates of candidacy,
Rosalinda Penera and the other members of her political party
conducted a motorcade and went around the different barangays in
the municipality of Sta. Monica, Surigao Del Norte. The motorcade
consisted of two (2) jeepneys and ten (10) motorcycles, which were
all festooned with multi-colored balloons. There was marching
music being played on the background and the individuals onboard
the vehicles threw candies to the people they passed by along the
streets. With the number of vehicles, the balloons, the background
marching music, the candies on hand and the route that took them to
the different barangays, the motorcade could hardly be considered as
spontaneous and unplanned.
The majority opinion goes on to quote a paragraph in the Decision

dated 11 September 2009, underscoring a portion of the same as
follows:
When the campaign period starts and said person proceeds with
his/her candidacy, his/her intent turning into actuality, we can
already consider his/her acts, after the filing of his/her [certificate of
candidacy (COC)] and prior to the campaign period, as the
promotion of his/her election as a candidate, hence, constituting
premature campaigning, for which he/she may be disqualified.
Majority Opinion
According to the interpretation of the majority of the above
pronouncement, the Decision dated 11 September 2009 already
considers a person who filed a COC a "candidate" even before the
start of the campaign period. From the filing of the COC, even
before the start of the campaign period, the ponente allegedly
considers the partisan political acts of a person filing a COC "as the
promotion of his/her election as a candidate."
Although the majority opinion initially mentions the above-stated

grounds of Peneras Motion for Reconsideration, the same were not
at all discussed. The Resolution of the majority purely involves an
exposition of the grounds set forth in the Dissenting Opinion of
Justice Antonio T. Carpio to the Decision dated 11 September 2009.
At the outset, the majority opinion highlights the relevant provisions
of law defining the meaning of a candidate.
LAW ON ELECTION
The majority clearly mistook the import of the above-quoted portion
10
and read the same out of context. Absolutely nowhere in the

Decision dated 11 September 2009 was it stated that a person who
filed a COC is already deemed a candidate even before the start of
the campaign period.
campaign period[.]
To recall, the Court held in its Decision that Section 80 of the

Omnibus Election Code, which defines the prohibited act of
premature campaigning, was not repealed, expressly or impliedly, by
Section 15 of Republic Act No. 8436, as amended.
The following points are explanatory:
The Court harmonized and reconciled the above provisions in this

wise:
First, Section 80 of the Omnibus Election Code, on premature

campaigning, explicitly provides that "[i]t shall be unlawful for any
person, whether or not a voter or candidate, or for any party, or
association of persons, to engage in an election campaign or partisan
political activity, except during the campaign period." Very simply,
premature campaigning may be committed even by a person who is
not a candidate.
Section 80 of the Omnibus Election Code reads:

SECTION 80. Election campaign or partisan political activity
outside campaign period. It shall be unlawful for any person,
whether or not a voter or candidate, or for any party, or
association of persons, to engage in an election campaign or
partisan political activity except during the campaign period: x
x x.
For this reason, the plain declaration in Lanot that "[w]hat Section
80 of the Omnibus Election Code prohibits is an election campaign
or partisan political activity by a candidate outside of the
campaign period," is clearly erroneous.
While relevant portions of Section 15 of Republic Act No. 8436, as

amended by Republic Act No. 9369, provide:
SECTION.15. Official Ballot. x x x
Second, Section 79(b) of the Omnibus Election Code defines

election campaign or partisan political activity in the following
manner:
xxxx
SECTION 79. Definitions. - As used in this Code:
For this purpose, the Commission shall set the deadline for the filing
of certificate of candidacy/petition of registration/manifestation to
participate in the election. Any person who files his certificate of
candidacy within this period shall only be considered as a candidate
at the start of the campaign period for which he filed his certificate
of candidacy: Provided, That, unlawful acts or omissions applicable
xxxx
LAW ON ELECTION
(b) The term "election campaign" or "partisan political activity"

refers to an act designed to promote the election or defeat of a
particular candidate or candidates to a public office which shall
include:
11
(1) Forming organizations, associations, clubs, committees or other

groups of persons for the purpose of soliciting votes and/or
undertaking any campaign for or against a candidate;
prior to the campaign period, asthe promotion of his/her election as

a candidate, hence, constituting premature campaigning, for which
he/she may be disqualified. x x x (Underscoring supplied.)
(2) Holding political caucuses, conferences, meetings, rallies,

parades, or other similar assemblies, for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or against
a candidate;
The last paragraph of the aforequoted portion of the Decision dated

11 September 2009 should be read together with, and qualified by,
the paragraph immediately preceding it. Clearly, the ponente was
quite explicit in stating that, after the filing of the COC but before
the start of the campaign period, a person is not yet considered a
candidate. After filing the COC, however, the commission by such
person of the acts enumerated under Section 79(b) of the Omnibus
Election Code can already be construed as being for the purpose of
promoting his/her intended candidacy.
(3) Making speeches, announcements or commentaries, or holding

interviews for or against the election of any candidate for public
office;
(4) Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate; or
Thereafter, it is only at the start of the campaign period, when said

person is already a formal candidate, that the partisan political acts
that he/she committed after the filing of the COC can already be
considered as being for the promotion of his/her election as a
candidate; hence, constituting premature campaigning.
(5) Directly or indirectly soliciting votes, pledges or support for or

against a candidate.
True, that pursuant to Section 15 of Republic Act No. 8436, as
amended, even after the filing of the COC but before the start of the
campaign period, a person is not yet officially considered a
candidate. Nevertheless, a person, upon the filing of his/her COC,
already explicitly declares his/her intention to run as a candidate in
the coming elections. The commission by such a person of any of
the acts enumerated under Section 79(b) of the Omnibus Election
Code (i.e., holding rallies or parades, making speeches, etc.) can,
thus, be logically and reasonably construed as for the purpose of
promoting his/her intended candidacy.
Reversal of Lanot v. Commission on Elections

The majority likewise ascribes error on the part of the ponente for
reversing Lanot, which held that a person should be a candidate
before premature campaigning may be committed. Resolved under
the auspices of Republic Act No. 8436,8 the previous automation
law, Lanot was allegedly decided on the ground that one who files a
COC is not a candidate until the start of the campaign period.
Supposably, Congress wanted to ensure that any person filing a
COC under the early deadline required by the automated election
system would not be disqualified for any partisan political act done
prior to the start of the campaign period. In enacting Republic Act
When the campaign period starts and said person proceeds with
his/her candidacy, his/her intent turning into actuality, we can
already consider his/her acts, after the filing of his/her COC and
LAW ON ELECTION
12
No. 9369, Congress expressly wrote the Lanot doctrine into the
second sentence, third paragraph, Sec. 15 of Republic Act No. 8436,
which states that "[a]ny person who files his certificate of candidacy
within [the period for filing COCs] shall only be considered as a
certificate of candidacy."
recommended the disqualification of Eusebio for violation of

Section 80 of the Omnibus Election Code, which recommendation
was approved by the COMELEC First Division. The COMELEC en
banc referred the case back to the COMELEC Law Department to
determine whether Eusebio actually committed the acts subject of
the petition for disqualification.
The majority, therefore, concludes that the ponente cannot reverse

Lanot without repealing the above sentence, since to reverse Lanot
would mean repealing the said sentence. The ponente, however, in
reversing Lanot does not claim that the second sentence or any
portion of Section 15 of RA 8436, as amended by RA 9369, is
unconstitutional. Thus, the Decision dated 11 September 2009 is
supposedly self-contradictory reversing Lanot but maintaining the
constitutionality of the second sentence, which embodies the Lanot
doctrine. In so doing, the majority avers that the majority decision is
irreconcilably in conflict with the clear intent and letter of the
second sentence, third paragraph of Section 15 of Republic Act No.
8436, as amended by Republic Act No. 9369.
The Court, speaking through Justice Carpio, adjudged that Eusebio

was not liable for premature campaigning given that the latter
committed partisan political acts before he became a candidate. The
Court construed the application of Section 11 of Republic Act No.
8463 vis--vis the provisions of Sections 80 and 79(a) of the
Omnibus Election Code. Section 11 of Republic Act No. 8436
moved the deadline for the filing of certificates of candidacy to 120
days before election day. The Court ruled that the only purpose for
the early filing of COCs was to give ample time for the printing of
official ballots. Congress, however, never intended the early filing of
a COC to make the person filing to become immediately a
"candidate" for purposes other than the printing of ballots. This
legislative intent prevented the immediate application of Section 80
of the Omnibus Election Code to those filing to meet the early
deadline. The clear intention of Congress was to preserve the
"election periods as x x x fixed by existing law" prior to Republic
Act No. 8436 and that one who files to meet the early deadline "will
still not be considered as a candidate."10
The majority opinion arrives at an erroneous conclusion based on a

faulty premise.
Lanot was decided on the basis of the requirement therein that there
must be first a candidate before the prohibited act of premature
campaigning may be committed.
Simply stated, the Court adjudged in Lanot that when Eusebio filed
his COC to meet the early deadline set by COMELEC, he did not
thereby immediately become a candidate. Thus, there was no
premature campaigning since there was no candidate to begin with.
It is on this ground that the majority reversed Lanot.
In Lanot v. Commission on Elections, Lanot, et al., filed a petition

for disqualification against the then Pasig City mayoralty candidate
Vicente P. Eusebio for engaging in various forms of election
campaign on different occasions outside of the designated campaign
period after he filed his COC during the 2004 local elections. The
Commission on Elections (COMELEC) Law Department
LAW ON ELECTION
The ponente reiterates that the existence of a candidate is not
13
necessary before premature campaigning may be committed.

Section 80 of the Omnibus Election Code unequivocally provides
that "[i]t shall be unlawful for any person, whether or not a voter or
candidate, or for any party, or association of persons, to engage in an
election campaign or partisan political activity, except during the
campaign period." Very specific are the wordings of the law that the
individual who may be held liable to commit the unlawful act of
premature campaigning can be any person: a voter or non-voter, a
candidate or a non-candidate.
Provided, That, unlawful acts or omissions applicable to a candidate

shall take effect only upon the start of the aforesaid campaign
period.
Thus, Congress even strengthened its mandatory directive that
election offenses can be committed by a candidate "only" upon the
start of the campaign period. Accusing the ponente of giving a
specious reasoning in explaining the above proviso, the majority
points out to the basic principle of law that any act is lawful, unless
expressly declared as unlawful. Therefore, the majority claims that
there was no need for Congress to declare in Section 15 of Republic
Act No. 8436, as amended, that partisan political activities before
the start of the campaign period are lawful. The logical conclusion is
that partisan political acts, if done before the start of the campaign
period, are lawful. According to the majority, any election offense
that may be committed by a candidate under any election law cannot
be committed before the start of the campaign period.
Furthermore, as already previously discussed, Section 80 of the

Omnibus Election Code was not repealed by Section 15 of RA 8436,
as amended by RA 9369. In construing the said provisions, as well
as that of Section 79(a) of the Omnibus Election Code, which
defines the meaning of the term candidate, the majority has settled
that, after the filing of the COC but before the start of the campaign
period, a person is yet to be considered a formal candidate.
Nonetheless, by filing the COC, the person categorically and
explicitly declares his/her intention to run as a candidate. Thereafter,
if such person commits the acts enumerated under Section 79(b) of
the Omnibus Election Code, said acts can already be construed as
for the purpose of promoting his/her intended candidacy.1avvphi1
The ponente takes exception to the above sweeping and unwarranted

reasoning. Not all election offenses are required to be committed by
a candidate and, like the prohibited act of premature campaigning,
not all election offenses are required to be committed after the start
of the campaign period. To reiterate, Section 80 of the Omnibus
Election Code, which defines the prohibited act of premature
campaigning is still good law despite the passage of Section 15 of
Republic Act No. 8436, as amended. Precisely, the conduct of
election campaign or partisan political activity before the campaign
period is the very evil that Section 80 seeks to prevent.
Thus, contrary to the majority opinion, the Decision dated 11

September 2009 is not self-contradictory. The ponente can reverse
Lanot and still uphold the second sentence, third paragraph of
Section 15 of Republic Act No. 8436, as amended.
The majority also stresses that in the enactment of Republic Act No.
9369, Congress inserted the word "only" to the first proviso in the
third paragraph of Section 11 of Republic Act No. 8436 so that the
same now reads:
LAW ON ELECTION
The majority opinion maintains its objection to the allegedly

strained construction and/or interpretation of the ponente of the
particular provisions involved in this case. With equal vehemence,
however, the ponente adamantly rejects the majoritys absurd and
14
unwarranted theory of repeal of Section 80 of the Omnibus Election

Code put forth in both the Dissenting Opinion to the Decision dated
11 September 2009 and the Resolution of the majority.
even ten years prior to the day of the elections, a person aspiring for
public office may now engage in election campaign or partisan
political activities to promote his candidacy, with impunity. All he
needs to have is a very deep campaign war chest to be able to carry
out this shrewd activity.
As the majority repeatedly pointed out, Section 15 of Republic Act

No. 8436, as amended by Republic Act No. 9369, was enacted
merely to give the COMELEC ample time for the printing of ballots.
Section 80 of the Omnibus Election Code, on the other hand, is a
substantive law which defines the prohibited act of premature
campaigning, an election offense punishable with the gravest of
penalties that can be imposed on a candidate, i.e., disqualification or,
if elected, removal from office. If the majority opinion indignantly
rejects the attempts of the ponente to reconcile the provisions of
Section 80 of the Omnibus Election Code and Section 15 of
Republic Act No. 8436, as amended, then why should they insist on
repealing the former provision and not the latter?
Indeed, while fair elections has been dealt a fatal blow by the
Resolution of the majority, it is fervently hoped that the writing of
the Decision dated 11 September 2009 and this Dissenting Opinion
will not be viewed as an effort made in vain if in the future the said
Resolution can be revisited and somehow rectified.
Premises considered, there is no reason to reverse and set aside the
earlier ruling of the Court rendered in this case.
I, therefore, vote to DENY WITH FINALITY the Motion for
Reconsideration filed by Rosalinda A. Penera on the Decision dated
11 September 2009.
The ponente emphasizes that whether the election would be held

under the manual or the automated system, the need for prohibiting
premature campaigning to level the playing field between the
popular or rich candidates, on one hand, and the lesser-known or
poorer candidates, on the other, by allowing them to campaign only
within the same limited period remains. Again, the choice as to
who among the candidates will the voting public bestow the
privilege of holding public office should not be swayed by the
shrewd conduct, verging on bad faith, of some individuals who are
able to spend resources to promote their candidacies in advance of
the period slated for campaign activities.
MINITA V. CHICO-NAZARIO
Associate Justice
DISSENTING OPINION
ABAD, J.:
The Facts and the Case
Petitioner Rosalinda Penera and respondent Edgar Andanar ran for
mayor of Sta. Monica, Surigao Del Norte, during the May 14, 2007
elections.
However, by virtue of the Resolution of the majority, premature

campaigning will now be officially decriminalized and, as a
consequence, the value and significance of having a campaign
period will now be utterly negated. Thus, one year, five years or
LAW ON ELECTION
15
On March 29, 2007 a motorcade by petitioner Peneras political

party preceded the filing of her certificate of candidacy before the
Municipal Election Officer of Sta. Monica. Because of this, on April
2, 2007 Andanar filed with the Regional Election Director for
Region 13 in SPA 07-224 a petition to disqualify1 Penera, among
others,2for engaging in election campaign before the start of the
campaign period.
and numerous motorcycles laden with balloons, banners, and posters

that showed the names of their candidates and the positions they
sought. One of the trucks had a public speaker that announced
Peneras candidacy for mayor.
Petitioner Penera filed before the COMELEC en banc a motion for
reconsideration4 of the Second Divisions July 24, 2007 resolution.
The En Banc denied her motion on January 30, 2008.5 Still
undeterred, Penera came up to this Court. On September 11, 2009 an
almost evenly divided Court affirmed the ruling of the COMELEC.
On motion for reconsideration, however, the number of votes shifted
in favor of granting the petition and reversing the ruling of the
COMELEC.
Andanar claimed that Penera and her partymates went around Sta.
Monica on March 29, announcing their candidacies and asking the
people to vote for them in the coming elections. Answering the
petition, Penera claimed that although a motorcade preceded the
filing of her certificate of candidacy, she merely observed the usual
practice of holding a motorcade on such momentous occasion, but
which celebration ended soon after she filed her certificate. Penera
claimed that no one made a speech during the event. All they had
were lively background music and "a grand standing for the purpose
of raising the hands of the candidates in the motorcade."
The Issue
The core issue that divided the Court is whether or not petitioner
Peneras act of campaigning for votes immediately preceding the
filing of her certificate of candidacy on March 29, 2007 violates the
prohibition in Section 80 of the Omnibus Election Code against
premature campaigning, with the result that she is disqualified from
holding office in accordance with Section 68 of the Code.
The parties presented their position papers and other evidence in the
case.3 Afterwards, the regional office forwarded its record to the
Commission on Elections (COMELEC) in Manila where the case
was raffled to the Second Division for resolution. But the elections
of May 14, 2007 overtook it, with petitioner Penera winning the
election for Mayor of Sta. Monica. She assumed office on July 2,
2007.
Discussion
Section 80 of the Omnibus Election Code prohibits any person,
whether a candidate or not, from engaging in election campaign or
partisan political activity except during the campaign period fixed
by law.
On July 24, 2007 the COMELECs Second Division issued a

resolution, disqualifying petitioner Penera from continuing as a
mayoralty candidate in Sta. Monica on the ground that she engaged
in premature campaigning in violation of Sections 80 and 68 of the
Omnibus Election Code. The Second Division found that she, her
partymates, and a bevy of supporters held a motorcade of two trucks
LAW ON ELECTION
Apart from its penal consequence, the law disqualifies any candidate
who engages in premature campaigning from holding the office to
which he was elected. Section 68 of the Code reads:
16
SECTION. 68. Disqualifications. - Any candidate who, in an

action or protest in which he is a party is declared by final
decision of a competent court guilty of, or found by the
Commission of having x x x (e) violated any of Sections 80, 83,
85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6,
shall be disqualified from continuing as a candidate, or if he has
been elected, from holding the office; x x x.(Underscoring
supplied.)
c. One of these responsibilities is the duty not to commit acts that

are forbidden a candidate such as campaigning for votes before the
start of the prescribed period for election campaigns. Premature
campaigning is a crime and constitutes a ground for disqualification
from the office that the candidate seeks.
d. But, with the amendment of Section 15 of R.A. 8436 by Section
13 of R.A. 9369, a persons filing of a certificate of candidacy does
not now automatically mark him as a "candidate." He shall be
regarded a "candidate," says Section 15, only at the start of the
campaign period. Further, the "unlawful acts or omissions applicable
campaign period."
Since the COMELEC found petitioner Penera guilty of having led

on March 29, 2007 a colorful and noisy motorcade that openly
publicized her candidacy for mayor of Sta. Monica, this Court held
in its original decision that the COMELEC correctly disqualified her
from holding the office to which she was elected.
It is significant that before the passage of R.A. 9369 a candidate for

a local office had up to the day before the start of the campaign
period (which in the case of a local election consists of 45 days
before the eve of election day) within which to file his certificate of
candidacy and, thus, be regarded as a "candidate." But the need for
time to print the ballots with the names of the candidates on them
under the automated election system prompted Congress to
authorize the COMELEC to set a deadline for the filing of the
certificates of candidacy long before the start of the campaign
period. Thus, the pertinent portion of Section 15 of R.A. 8436, as
amended, provides:
The current majority of the Court claims, however, that with the
passage of Republic Act (R.A.) 9369, a candidate who campaigns
before the official campaign period may no longer be regarded as
having committed an unlawful act that constitutes ground for
disqualification. The majoritys reasoning is as follows:
a. Section 79 (a) of the Omnibus Election Code states that a
candidate is "any person aspiring for or seeking an elective public
office, who has filed a certificate of candidacy by himself or through
an accredited political party, aggroupment, or coalition of parties."
SECTION 15. Official ballot.
b. It is a persons filing of a certificate of candidacy, therefore, that

marks the beginning of his being a candidate. It is also such filing
that marks his assumption of the responsibilities that goes with
being a candidate. Before Penera filed her certificate of candidacy
on March 29, 2007, she could not be regarded as having assumed
the responsibilities of a "candidate."
LAW ON ELECTION
xxxx
For this purpose [the printing of ballots], the Commission shall set
the deadline for the filing of certificate of candidacy/ petition for
registration/ manifestation to participate in the election. x x x
17
xxxx
campaigning.
Evidently, while Congress was willing to provide for advance filing

of certificates of candidacy, it did not want to impose on those who
file early certificates the responsibilities of being already regarded
as "candidates" even before the start of the campaign period. Thus,
the same Section 15 provides further on:
But the fact that Penera was not yet a candidate before she actually
handed in her certificate of candidacy to the designated COMELEC
official does not exempt her from the prohibition against engaging
in premature election campaign. Section 80 which imposes the ban
ensnares "any person," even a non-candidate. Thus:
Any person who files his certificate of candidacy within this period
shall only be considered as a candidate at the start of the campaign
period for which he filed his certificate of candidacy; x x x.

outside campaign period. It shall be unlawful forany person,
whether or not a voter or candidate, or for any party, or association
of persons, to engage in an election campaign or partisan political
activity except during the campaign period: x x x (Emphasis ours.)
In Peneras case, she filed her certificate of candidacy on March 29,

2007. Section 15 does not yet treat her as "candidate" then. Only at
the start of the official campaign period on March 30, 2007 was she
to be considered as such "candidate." To emphasize this, Congress
provided further on in Section 15 that an early filers responsibility
as a candidate begins only when the campaign period begins. Thus
Essentially, the law makes the prohibition against premature

campaigning apply to "any person" and "any party, or association of
persons." This means that no one is exempt from the ban. The
mention of the word "candidate" in the first grouping, i.e., "any
person, whether or not a voter or candidate," merely stresses the
point that even those with direct interest in a political campaign are
not exempt from the ban. Consequently, even if Penera had not yet
filed her certificate of candidacy, Section 80 covered her because
she fell in the category of "any person."

period; x x x.
The current majority concludes from the above that from the time
R.A. 9369 took effect on February 10, 2007 a person like petitioner
Penera cannot be held liable as a "candidate" for engaging in
premature election campaign before she filed her certificate of
candidacy or even after she filed one since she may be regarded as a
"candidate" only at the start of the campaign period on March 30,
2007. Consequently, since she was not yet a "candidate" on March
29, 2007 when she went around Sta. Monica campaigning for votes
on her way to appearing before the election registrar to file her
certificate of candidacy, she cannot be held liable for premature
LAW ON ELECTION
The provision of Section 15 of R.A. 8436, as amended, that regards

Penera as a "candidate" only at the start of the campaign period on
March 30, 2007 did not, therefore, exempt her from liability as a
non-candidate engaging in premature election campaign.
Here, candidate Penera has been found by the COMELEC to have
violated Section 80 when, even before she was a candidate, she
prematurely campaigned for votes for herself. The ground for her
consequent disqualificationpremature campaigningalready
18
accrued by the time she filed her certificate of candidacy or when

the official campaign period began. Consequently, she is
disqualified under Section 68 from continuing as a candidate or,
since she has been elected, from holding on to that office. Thus:
aspiring for or seeking an elective public office, who has filed a

certificate of candidacy" and since Penera held her vote-solicitation
motorcade before she filed her certificate of candidacy, she did not
engage during the town motorcade in a campaign for the election of
any "particular candidate."
SECTION 68. Disqualifications. - Any candidate who, in an

action or protest in which he is a party is declared by final
decision of a competent court guilty of, or found by the
Commission of having x x x (e) violated any of Sections 80, 83,
85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6,
shall be disqualified from continuing as a candidate, or if he has
been elected, from holding the office; x x x(Underscoring
supplied.)
But this is being too literal. It is like saying that a woman cannot be
held liable for parricide since the penal code uses the male pronoun
in ascribing to the offender the acts that constitute the crime. Thus,
the penal code says:
Art. 246. Parricide. Any person who shall kill his father,
mother, or child, whether legitimate or illegitimate, or any of his
ascendants, or descendants, or his spouse, shall be guilty of
parricide and shall be punished by the penalty of reclusion
perpetua to death.
Does this position contravene Section 15 of R.A. 8436, as amended,

that regards Penera as a "candidate" only at the start of the campaign
period on March 30, 2007? It does not because Section 80, which
the Court seeks to enforce, is essentially intended as a ground for
sanctioning "any person," not necessarily a candidate, who
engages in premature election campaign.
Yet, parricide, as everyone knows, can also be committed by a

woman who shall kill her father, mother, or child, or her spouse. The
spirit of the law intends to punish any person, male or female, who
kills his or her ascendants, descendants, or spouse. Literalness must
yield to evident legislative intent.
The real challenge to the current minority position, however, is the

meaning that the Omnibus Election Code places on the term
"election campaign." "The term election campaign or partisan
political activity, says Section 79, "refers to an act designed to
candidates to a public office." The object of the election campaign
activity must be the "election or defeat of a particular candidate."
Here, did Congress in enacting R.A. 9369 intend to abolish or repeal

Section 80 of the Omnibus Election Code that prohibits election
campaigns before the start of the campaign period? It did not.
Section 80 remains in the statute books and R.A. 9369 did not,
directly or indirectly, touch it.
When petitioner Penera practically said "vote for me" during the
March 29 motorcade that she led around Sta. Monica, did she solicit
votes for a "particular candidate?" The current majority holds that
since, according to Section 79, a "candidate refers to any person
LAW ON ELECTION
The current majority of course claims, citing Section 15 of R.A.

8436, as amended, that "the effective date when partisan political
acts become unlawful as to a candidate is when the campaign period
starts. The pertinent portion of Section 15 says:
19

period; x x x.
3. The person whose election or defeat the offender seeks has filed a
certificate of candidacy for the office.
The first two elements could take place when the offender engages
in premature election campaign for the person whose election or
defeat he seeks to promote but who has not as yet filed his
certificate of candidacy. Whereas, the third elementconsisting in
the latter persons filing his certificate of candidacycould take
place later, close to the campaign period.
If we were to abide by the view of the current majority, Congress

ordained when it passed the above provision that it is only for
unlawful acts or omissions committed during the campaign period
that candidates could be punished. Consequently, if candidates take
campaign funds from a foreign government6 or conspire with others
to bribe voters7 just one day before the start of the campaign period,
they cannot be prosecuted. A candidate under the theory of the
current majority can freely commit a litany of other crimes relating
to the election so long as he commits them before the start of the
campaign period. Surely, R.A. 9369 did not intend to grant him
immunity from prosecution for these crimes.
The elements of a crime need not be present on a single occasion. In

B.P. 22 cases, the issuer of the check may have knowingly issued a
perfectly worthless check to apply on account. But, until the check
is dishonoured by the drawee bank, the crime of issuing a bouncing
check is not deemed committed. The analogy is far from perfect but
the point is that the offender under Section 80 knew fully when she
shouted on the top of her voice, "vote for me as your mayor!" before
she filed her certificate of candidacy that she was running for mayor.
If she says she is not liable because she is technically not yet a
candidate, the people should say, "Let us not kid each other!"
The more reasonable reading of the provisionthat unlawful acts or

omissions applicable to a candidate shall take effect only upon the
start of the campaign periodis that Congress referred only to
unlawful acts or omissions that could essentially be committed only
during the campaign period. For how could a candidate commit
unlawful "pre-campaign" acts during the campaign period?
Congress could not be presumed to have written a ridiculous rule. It

is safe to assume that, in enacting R.A. 9369, Congress did not
intend to decriminalize illegal acts that candidates and noncandidates alike could commit prior to the campaign period.
The unlawful act of engaging in premature election campaign under

Section 80, in relation to Section 79 which defines the terms
"candidate" and "election campaign," may be regarded as consisting
of three elements:
Further, current majoritys view may doom the next generations.

Congress enacted Section 80 because, historically, premature
election campaigns begun even years before the election saps the
resources of the candidates and their financial backers, ensuring
considerable pay-back activities when the candidates are elected.
Such lengthy campaigns also precipitate violence, corrupt the
electorate, and divert public attention from the more vital needs of
1. A person acts to promote the election or defeat of another to a

public office;
2. He commits the act before the start of the campaign period; and
LAW ON ELECTION
20
the country.8
Penera vs. Commission on Elections, et al.

G.R. No. 181613 25 November 2009
(motion for reconsideration)
Actually, practically all the principal stakeholders in the election,

namely, the voters, the candidates, and the COMELEC, have since
1969 assumed that premature election campaign is not allowed.
People generally wait for the campaign period to start before
engaging in election campaign. Even today, after the passage of
R.A. 9369, those aspiring to national offices have resorted to the socalled "infomercials" that attempt to enhance their popularities by
showing their philosophies in life, what they have accomplished,
and the affection with which ordinary people hold them. No one has
really come out with ads soliciting votes for any particular candidate
or person aspiring for a particular public office. They are all aware
of Section 80.
Facts:
On 11 September 2009, the Supreme Court affirmed the
COMELECs decision to disqualify petitioner Rosalinda Penera
(Penera) as mayoralty candidate in Sta. Monica, Surigao del Norte,
for engaging in election campaign outside the campaign period, in
violation of Section 80 of Batas Pambansa Blg. 881 (the Omnibus
Election Code).
Penera moved for reconsideration, arguing that she was not yet a
candidate at the time of the supposed premature campaigning, since
under Section 15 of Republic Act No. 8436 (the law authorizing the
COMELEC to use an automated election system for the process of
voting, counting of votes, and canvassing/consolidating the results
of the national and local elections), as amended by Republic Act No.
9369, one is not officially a candidate until the start of the campaign
period.
Parenthetically, the Supreme Court declared the law banning

premature election campaign constitutional in Gonzales v.
Commission on Elections9 only because the majority in the Court
were unable to muster two-thirds votes to declare it unconstitutional.
The freedom of expression has always loomed large in the mind of
the Court. It would not be likely, therefore, for the Court to hastily
declare every expression tending to promote a persons chances in
the elections as prohibited election campaigning.
Issue:
I vote to deny the motion for reconsideration.
Whether or not Peneras disqualification for engaging in premature

campaigning should be reconsidered.
ROBERTO A. ABAD
Associate Justice
Holding:
Granting Peneras motion for reconsideration, the Supreme Court En
Banc held that Penera did not engage in premature campaigning and
should, thus, not be disqualified as a mayoralty candidate. The Court
said
LAW ON ELECTION
21
upon the start of the campaign period. Besides, such a law as

envisioned in the Decision, which defines a criminal act and curtails
freedom of expression and speech, would be void for vagueness.
(A) The Courts 11 September 2009 Decision (or the assailed

Decision) considered a person who files a certificate of candidacy
already a candidate even before the start of the campaign period.
This is contrary to the clear intent and letter of Section 15 of
Republic Act 8436, as amended, which states that a person who files
his certificate of candidacy will only be considered a candidate at
the start of the campaign period, and unlawful acts or omissions
applicable to a candidate shall take effect only upon the start of such
campaign period.
(C) That Section 15 of R.A. 8436 does not expressly state that
campaigning before the start of the campaign period is lawful, as the
assailed Decision asserted, is of no moment. It is a basic principle of
law that any act is lawful unless expressly declared unlawful by law.
The mere fact that the law does not declare an act unlawful ipso
facto means that the act is lawful. Thus, there is no need for
Congress to declare in Section 15 of R.A. 8436 that partisan
political activities before the start of the campaign period are lawful.
It is sufficient for Congress to state that any unlawful act or
omission applicable to a candidate shall take effect only upon the
start of the campaign period. The only inescapable and logical
result is that the same acts, if done before the start of the campaign
period, are lawful.
Thus, applying said law:

(1) The effective date when partisan political acts become unlawful
as to a
candidate is when the campaign period starts. Before the start of the
campaign period, the same partisan political acts are lawful.
(2) Accordingly, a candidate is liable for an election offense only for
acts done during the campaign period, not before. In other words,
election offenses can be committed by a candidate only upon the
start of the campaign period. Before the start of the campaign
period, such election offenses cannot be so committed. Since the law
is clear, the Court has no recourse but to apply it. The forum for
examining the wisdom of the law, and enacting remedial measures,
is not the Court but the Legislature.
(D) The Courts 11 September 2009 Decision also reversed Lanot

vs. COMELEC (G.R.
No. 164858; 16 November 2006). Lanot was decided on the ground
that one who files a certificate of candidacy is not a candidate until
the start of the campaign period. This ground was based on the
deliberations of the legislators who explained that the early deadline
for filing certificates of candidacy under R.A. 8436 was set only to
afford time to prepare the machine-readable ballots, and they
intended to preserve the existing election periods, such that one who
files his certificate of candidacy to meet the early deadline will still
not be considered as a candidate.
(B) Contrary to the assailed Decision, Section 15 of R.A. 8436, as

amended, does not provide that partisan political acts done by a
candidate before the campaign period are unlawful, but may be
prosecuted only upon the start of the campaign period. Neither does
the law state that partisan political acts done by a candidate before
the campaign period are temporarily lawful, but becomes unlawful
LAW ON ELECTION
When Congress amended R.A. 8436, Congress decided to expressly

incorporate the Lanot doctrine into law, thus, the provision in
22
Section 15 of R.A. 8436 that a person who files his certificate of

candidacy shall be considered a candidate only at the start of the
campaign period. Congress wanted to insure that no person filing a
certificate of candidacy under the early deadline required by the
automated election system would be disqualified or penalized for
any partisan political act done before the start of the campaign
period. This provision cannot be annulled by the Court except on the
sole ground of its unconstitutionality.
2009) has effectively voided a section of the Omnibus Election

Code (OEC) on premature campaigning.
The Supreme Court reinstated Rosalinda Penera as mayor of the
municipality of Sta. Monica, Surigao del Norte as it granted her
motion for reconsideration and set aside its earlier decision
affirming her disqualification by the Comelec for premature
campaigning. Peneras disqualification stemmed from her alleged
premature campaigning when she and her supporters had a
motorcade a day before the start of the authorized campaign period
for the 2007 elections.
The assailed Decision, however, did not claim that this provision is
unconstitutional. In fact, the assailed Decision considered the entire
Section 15 good law. Thus, the Decision was self-contradictory
reversing Lanot but maintaining the constitutionality of the said
provision.
For one to commit a violation of premature campaigning under

Section 80 of the OEC, the following elements must exist:
(1) a person engages in an election campaign or partisan political
activity;
(2) the act is designed to promote the election or defeat of a
particular candidate;
(3) the act is done outside the campaign period.[2]
Clearly, the second element requires the existence of a candidate.
Under Section 79(a) of the OEC, a candidate is one who has filed a
certificate of candidacy to an elective public office. This is further
qualified by Section 15 of R.A. 8436, which provides that the person
who filed a CoC shall only be considered as a candidate at the start
of the campaign period for which he filed his certificate of
candidacy.
Its fiesta time, its open season

Comelec Commissioner Rene Sarmiento[1]
In other words, a candidate is liable for an election offense only for

acts done during the campaign period, not before. According to the
Supreme Court, the law is clear as daylight any election offense
The case of Penera vs. Comelec (G.R. No. 181613, November 25,
LAW ON ELECTION
23
that may be committed by a candidate under any election law cannot

be committed before the start of the campaign period.

I believe that Penera vs. Comelec has made partisan political

activities, in whatever form, lawful before the start of the official
campaign period. Since the Supreme Court has declared that a
candidate is liable for an election offense only for acts done during
the campaign period, premature campaigning is effectively
decriminalized.

Thus, because partisan political activities done before the campaign
period are now lawful, the acts enumerated above are also lawful.
The effect is that candidates could be punished only for unlawful
acts or omissions committed during the campaign period.
Consequently, if candidates take campaign funds from a foreign
government or bribe voters outside campaign period, they cannot be
prosecuted. A candidate can freely commit election offenses so long
as he commits them before the start of the campaign period.[4]
Thus, any partisan political activity, provided they are lawful (i.e.
not violative of any other law), done by a person who has already
filed his COC before the official campaign period, is legal.
The term partisan political activity is defined by the OEC[3] as an
act designed to promote the election or defeat of a particular
candidate or candidates to a public office which shall include:
The ruling has in a sense extended the campaign period. Under the
law, the campaign period for candidates running for national posts
starts three months before May 10, or election day. The campaign
period for local posts is even shorter. But because premature
campaigning is now an impossible offense, one can campaign
even before the start of this period.

votes and/or undertaking any campaign or propaganda for or
against a candidate;
The effect is that you have two periods wherein partisan political
activities are legal: (1) from the filing of COCs to the start of the
official campaign period, wherein one is still not a candidate, and
therefore cannot be liable for premature campaigning; (2) the
official campaign period where a candidate can now engage in
actual campaigning.

office;
This means that airing of infomercials, posting of tarpaulins and

streamers, and even conducting gatherings of all sorts are lawful.
LAW ON ELECTION
24
Even saying vote for me should be considered lawful. After all, if

you are still not a candidate, then directly or indirectly soliciting
votes, which does not promote any particular candidate, is
perfectly legal.
CARPIO, J.:
The Case
This is a petition for certiorari1 assailing the Resolution dated 20
August 2004,2 the Resolution dated 21 May 20043 of the
Commission on Elections (COMELEC) En Banc, and the Advisory
dated 10 May 20044 of COMELEC Chairman Benjamin S. Abalos
("Chairman Abalos") in SPA No. 04-288.
The 10 May 2004 Advisory of Chairman Abalos enjoined Acting
National Capital Region (NCR) Regional Director Esmeralda
Amora-Ladra ("Director Ladra") from implementing the
COMELEC First Divisions 5 May 2004 Resolution. 5 The 5 May
2004 Resolution ordered (1) the disqualification of respondent
Vicente P. Eusebio ("Eusebio") as a candidate for Pasig City Mayor
in the 10 May 2004 elections, (2) the deletion of Eusebios name
from the certified list of candidates for Pasig City Mayor, (3) the
consideration of votes for Eusebio as stray, (4) the non-inclusion of
votes for Eusebio in the canvass, and (5) the filing of the necessary
information against Eusebio by the COMELEC Law Department.

SUPREME COURT
Manila
EN BANC
G.R. No. 164858
The 21 May 2004 Order of the COMELEC En Banc set aside the 11
May 2004 Order of the COMELEC En Banc 6and directed the Pasig
City Board of Canvassers to proclaim the winning candidate for
Pasig City Mayor without prejudice to the final outcome of
Eusebios disqualification case. The 11 May 2004 Order suspended
the proclamation of Eusebio in the event that he would receive the
winning number of votes.
November 16, 2006
HENRY P. LANOT, substituted by MARIO S. RAYMUNDO,

Petitioner,
CHARMIE Q. BENAVIDES, Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO,
Respondents.
Finally, the 20 August 2004 COMELEC En Banc resolution set

aside the 5 May 2004 Resolution of the COMELEC First Division 7
and nullified the corresponding order. The COMELEC En Banc
DECISION
LAW ON ELECTION
25
Eusebio submitted his memorandum11 on 16 April 2004.
referred the case to the COMELEC Law Department to determine

whether Eusebio actually committed the acts subject of the petition
for disqualification.
The Ruling of the Regional Director
The Facts
On 4 May 2004, Director Ladra submitted her findings and

recommendations to the COMELEC. Director Ladra recommended
that:
On 19 March 2004, Henry P. Lanot ("Lanot"), Vener Obispo

("Obispo"), Roberto Peralta ("Peralta"), Reynaldo dela Paz ("dela
Paz"), Edilberto Yamat ("Yamat"), and Ram Alan Cruz ("Cruz")
(collectively, "petitioners"), filed a petition for disqualification8
under Sections 68 and 80 of the Omnibus Election Code against
Eusebio before the COMELEC. Lanot, Obispo, and Eusebio were
candidates for Pasig City Mayor, while Peralta, dela Paz, Yamat, and
Cruz were candidates for Pasig City Councilor in the 10 May 2004
elections. The case was docketed as SPA (NCR-RED) No. C04-008.
WHEREFORE, in view of the foregoing, undersigned respectfully

recommends that the instant petition beGRANTED. Consequently,
pursuant to Section 68 (a) and (e) of the Omnibus Election Code,
respondentVICENTE P. EUSEBIO shall be DISQUALIFIED to
run for the position of Mayor, Pasig City for violation of Section 80
of the Omnibus Election Code.
Further, undersigned respectfully recommends that the instant case
be referred to the Law Department for it to conduct a preliminary
investigation on the possible violation by the respondent of Sec. 261
(a) of the Omnibus Election Code.12
Petitioners alleged that Eusebio engaged in an election campaign in

various forms on various occasions outside of the designated
campaign period, such as (1) addressing a large group of people
during a medical mission sponsored by the Pasig City government;
(2) uttering defamatory statements against Lanot; (3) causing the
publication of a press release predicting his victory; (4) installing
billboards, streamers, posters, and stickers printed with his surname
across Pasig City; and (5) distributing shoes to schoolchildren in
Pasig public schools to induce their parents to vote for him.
The Ruling of the COMELEC

In a resolution dated 5 May 2004, or five days before the elections,
the COMELEC First Division adopted the findings and
recommendation of Director Ladra. The dispositive portion of the
resolution read:
In his Answer filed on 29 March 2004,9 Eusebio denied petitioners

allegations and branded the petition as a harassment case. Eusebio
further stated that petitioners evidence are merely fabricated.
WHEREFORE, in view of the foregoing, the Commission (FIRST

DIVISION) RESOLVED as it hereby RESOLVESto ORDER:
Director Ladra conducted hearings on 2, 5 and 7 April 2004 where

she received the parties documentary and testimonial evidence.
Petitioners submitted their memorandum10 on 15 April 2004, while
LAW ON ELECTION
1. the disqualification of respondent VICENTE P. EUSEBIO from

being a candidate for mayor of Pasig City in the May 10, 2004
26
elections;
of the Board of Election Inspectors and City Board of Canvassers of

Pasig City (collectively, "pertinent election officers"). Director
Ladra repeated the dispositive portion of the 5 May 2004 resolution
in a Memorandum15 which she issued the next day. On 9 May 2004,
Eusebio filed a motion for reconsideration16 of the resolution of the
COMELEC First Division.
2. the Election Officers of District I and District II of Pasig City to

DELETE and CANCEL the name of respondent VICENTE P.
EUSEBIO from the certified list of candidates for the City Offices
of Pasig City for the May 10, 2004 elections;
On election day itself, Chairman Abalos issued the first of the three
questioned COMELEC issuances. In a memorandum, Chairman
Abalos enjoined Director Ladra from implementing the COMELEC
First Divisions 5 May 2004 resolution due to Eusebios motion for
reconsideration. The 10 May 2004 memorandum stated:
3. the Board of Election Inspectors of all the precincts comprising

the City of Pasig not to count the votes cast for respondent
VICENTE EUSEBIO, the same being cast for a disqualified
candidate and therefore must be considered stray;
4. the City Board of Canvassers of Pasig City not to canvass the
votes erroneously cast for the disqualified candidate respondent
VICENTE P. EUSEBIO, in the event that such votes were recorded
in the election returns[;]
Considering the pendency of a Motion for Reconsideration timely

filed by Respondent, Vicente P. Eusebio[,] with the Commission En
Banc, you are hereby ENJOINED from implementing the
Resolution promulgated on May 5, 2004, in the x x x case until
further orders from the Commission En Banc.17 (Emphasis in the
original)
5. the Regional Director of NCR, and the Election Officers of Pasig

City to immediately implement the foregoing directives[;]
On 11 May 2004, the day after the elections, petitioners Lanot,

Peralta, dela Paz, Yamat, and Cruz filed before the COMELEC En
Banc a motion to suspend the counting and canvassing of votes and
the proclamation of the winning mayoral candidate for Pasig City.18
Without waiting for Eusebios opposition, the COMELEC En Banc
partially denied the motion on the same day. The dispositive portion
of the Order declared:
6. the Law Department through its Director IV, Atty. ALIODEN

DALAIG to file the necessary information against Vicente P.
Eusebio before the appropriate court.
This Resolution is immediately executory unless restrained by the
Commission En Banc.13 (Emphasis in the original)
In a Very Urgent Advisory14 dated 8 May 2004, or two days before
the elections, Chairman Abalos informed the following election
officers of the resolution of the COMELEC First Division: Director
Ladra; Atty. Romeo Alcazar, Acting Election Officer of the First
District of Pasig City; Ms. Marina Gerona, Acting Election Officer
of the Second District of Pasig City; and all Chairmen and Members
LAW ON ELECTION
WHEREFORE, in view of the foregoing, the Commission En Banc

DENIES the motion for suspension of the counting of votes and the
canvassing of votes. However, in order not to render moot and
academic the issues for final disposition by the En Banc and
considering that on the basis of the Resolution of the FIRST
27
DIVISION, the evidence of respondents guilt is strong, the

Commission En Banc hereby ORDERS to SUSPEND, UNTIL
FURTHER ORDERS OF THE COMMISSION, the proclamation of
respondent in the event he receives the winning number of votes. 19
Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based

on the 21 May 2004 Order.1wphi1 On 25 June and 6 July 2004, the
COMELEC En Banc conducted hearings on Eusebios motion for
reconsideration of the 5 May 2004 COMELEC First Division
resolution. On 6 August 2004, Lanot filed a motion to annul
Eusebios proclamation and to order his proclamation instead.22
On 12 May 2004, Eusebio filed his opposition to petitioners

motion.
On 20 August 2004, the COMELEC En Banc promulgated the third

questioned issuance. The COMELEC En Banc invoked Section 1 of
COMELEC Resolution No. 2050 ("Resolution 2050") and this
Courts rulings in Albaa v. COMELEC,23 Lonzanida v.
COMELEC,24 and Sunga v. COMELEC25 in justifying the annulment
of the order to disqualify Eusebio and the referral of the case to the
Law Department for preliminary investigation. The dispositive
portion stated:
On 21 May 2004, the COMELEC En Banc issued the second

questioned issuance. The order quoted from the motion for advisory
opinion of the Pasig City Board of Canvassers which reported that
98% of the total returns of Pasig City had been canvassed and that
there were only 32 uncanvassed returns involving 6,225 registered
voters. Eusebio had 119,693 votes while Lanot had 108,941 votes.
Thus, the remaining returns would not affect Eusebios lead over
Lanot. The COMELEC En Banc stated its "established policy" to
"expedite the canvass of votes and proclamation of winning
candidates to ease the post election tension and without prejudice to
[its] action in [the] x x x case" 20 and resolved to declare Eusebio as
Pasig City Mayor. The dispositive portion of the 21 May 2004 Order
read:
WHEREFORE, PREMISES CONSIDERED, the resolution

promulgated by the First Division dated 8 May 2004 on the abovecaptioned case, affirming the recommendation of the Regional
Director (NCR) to disqualify herein respondent, is hereby SET
ASIDE, and the corresponding ORDER issued thereunder,
ANNULLED. Accordingly, this case is referred to the Law
Department for investigation to finally determine [whether] the acts
complained of were in fact committed by respondent Eusebio. 26
WHEREFORE, this Commission RESOLVED, as it hereby

RESOLVES, to LIFT AND SET ASIDE the order suspending the
proclamation of the respondent.
Hence, this petition.

FURTHER, the City Board of Canvassers is DIRECTED to
complete [the] canvass and immediately proceed with the
proclamation of the winning candidate for Mayor of Pasig City
without prejudice to the final outcome of the case entitled,
"Henry P. Lanot, et al., vs. Vicente Eusebio[, "] docketed as SPA
No. 04-288.21 (Emphasis in the original)
LAW ON ELECTION
The Issues
Lanot alleged that as the COMELECs issuances are not supported
by substantial evidence and are contrary to law and settled
jurisprudence, the COMELEC committed grave abuse of discretion
28
amounting to lack of or excess of jurisdiction. Lanot raised the

following issues before this Court:
petitioner as the winning party.

B. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE
ABUSE OF DISCRETION OR IN EXCESS OR LACK OF
JURISDICTION IN ISSUING ITS RESOLUTION DATED MAY
21, 2004
A. WHETHER PUBLIC RESPONDENT COMELEC, IN ISSUING

[ITS] RESOLUTION DATED AUGUST 20, 2004, ACTED WITH
GRAVE ABUSE OF DISCRETION OR LACK OR IN EXCESS
OF JURISDICTION
1. by lifting and setting aside the Order of suspension of

proclamation by winning candidate issued on May 11, 2004, it
erroneously and intentionally and whimsically DISREGARDED the
strong evidence of guilt of Respondent to warrant the suspension of
his proclamation and erroneously and capriciously VIOLATED
Resolution of May 11, 2004.
1. by setting aside the Resolution of Disqualification promulgated

by its First Division on May 5, 2004 affirming the recommendation
of the Regional Election Director (NCR) to disqualify Respondent,
and by annulling the order issued thereunder,
a) erroneously, whimsically and maliciously ADOPTED and
APPLIED Sections 1 and 2 of Rule 2050 to this case,
C. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE

COMELEC ACTED WITH GRAVE ABUSE OF POWER,
AUTHORITY OR DISCRETION OR LACK OR IN EXCESS OF
JURISDICTION
b) capriciously VIOLATED COMELEC Resolution 6452 and Sec.

6, R.A. 6646,
1. by unilaterally enjoining the implementation of the Order of

Respondents disqualification despite the condition therein that it
could only be restrained by the Commission En Banc, and whether
or not he illegally, erroneously and blatantly whimsically grabbed
the exclusive adjudicatory power of the Commission En Banc.
c) erroneously, whimsically and capriciously ARROGATED unto

themselves a quasi-judicial legislation, and
d) erroneously and maliciously MISAPPLIED the Albaa and Sunga
cases to the case at bar;
D. WHETHER RESPONDENT COMELEC COMMITTED

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS
OF
JURISDICTION
IN
CAPRICIOUSLY
DISREGARDING THE RESOLUTION OF MAY 5, 2004 AS
ALREADY FINAL AND EXECUTED AND IN FAILING TO
ORDER THE PROCLAMATION OF PETITIONER.
2. by referring the case to the Law Department for investigation, it

illegally, erroneously and maliciously DISMISSED the electoral
aspect of the case and whimsically VIOLATED Resolution 6452 and
Section 6 of RA 6646;
3. by disregarding the Order of disqualification, it erroneously and
whimsically IGNORED and DISREGARDED the inchoate right of
LAW ON ELECTION
E. a) WHETHER THERE ARE PREPONDERANT EVIDENCE

29
TO
WARRANT
DISQUALIFICATION.
RESPONDENT
EUSEBIOS
("Raymundo"), a registered voter and former Mayor of Pasig City, is

Lanots substitute in this case. Also, on 25 August 2005, Charmie Q.
Benavides ("Benavides"), a Pasig City mayoral candidate and the
third placer in the 10 May 2004 elections, filed a petition-inintervention. Benavides asked whether she could be proclaimed
Pasig City Mayor because she is the surviving qualified candidate
with the highest number of votes among the remaining candidates.
b) WHETHER RESPONDENT EUSEBIO SHOULD BE DEEMED

DISQUALIFIED WITH FOUR (4) AFFIRMATIVE VOTES OF
COMMISSIONERS, TWO (2) VOTES FROM COMMISSIONERS
BORRA AND GARCILLANO WHO VOTED FOR THE
DISQUALIFICATION IN THE MAY 5, 2004
The law and the COMELEC rules have clear pronouncements that
the electoral aspect of a disqualification case is not rendered inutile
by the death of petitioner, provided that there is a proper substitution
or intervention of parties while there is a pending case. On
Raymundos substitution, any citizen of voting age is competent to
continue the action in Lanots stead.28 On Benavides intervention,
Section 6 of Republic Act No. 6646, or the Electoral Reforms Law
of 1987 ("Electoral Reforms Law of 1987"), allows intervention in
proceedings for disqualification even after elections if no final
judgment has been rendered. Although Eusebio was already
proclaimed as Pasig City Mayor, Benavides could still intervene, as
there was still no final judgment in the proceedings for
disqualification.29
RESOLUTION (ANNEX "B") AND TWO (2) VOTES FROM

COMMISSIONERS TUAZON, JR. AND SADAIN WHO VOTED
TO DISQUALIFY HIM IN THEIR DISSENTING OPINION
(ANNEX "A-1") SHOULD REFERRAL OF THE CASE TO THE
LAW DEPARTMENT BY RESPONDENT COMELEC BE
DECLARED A PATENT NULLITY.
F. IN CASE OF DISQUALIFICATION OF RESPONDENT
EUSEBIO, WHETHER PETITIONER LANOT CAN BE
PROCLAIMED AND ALLOWED TO SIT AS MAYOR-ELECT,
AND WHETHER THE DOCTRINES IN TOPACIO, CODILLA,
JR., LABO AND OTHERS APPLY IN THIS CASE.27
The case for disqualification exists, and survives, the election and
proclamation of the winning candidate because an outright dismissal
will unduly reward the challenged candidate and may even
encourage him to employ delaying tactics to impede the resolution
of the disqualification case until after he has been proclaimed.30 The
exception to the rule of retention of jurisdiction after proclamation
applies when the challenged candidate becomes a member of the
House of Representatives or of the Senate, where the appropriate
electoral tribunal would have jurisdiction. There is no law or
jurisprudence which says that intervention or substitution may only
be done prior to the proclamation of the winning candidate. A
The Ruling of the Court

The petition has no merit.
Parties to the Present Petition
On 13 April 2005, during the pendency of this case, an unidentified
person shot and killed Lanot in Pasig City. It seemed that, like an
endangered specie, the disqualification case would be extinguished
by Lanots death. However, on 27 April 2005, Lanots counsel
manifested, over Eusebios objections, that Mario S. Raymundo
LAW ON ELECTION
30
substitution is not barred by prescription because the action was

filed on time by the person who died and who is being substituted.
The same rationale applies to a petition-in-intervention.
Resolution of the COMELEC En Banc. The COMELEC En Bancs

explanation is apt:
Suspension of these proceedings is tantamount to an implementation
of the Resolution of the FIRST DIVISION which had not yet
become final and executory by reason of the timely filing of a
Motion for Reconsideration thereof. A disposition that has not yet
attained finality cannot be implemented even through indirect
means.31
COMELECs Grave Abuse of Discretion

Propriety of Including Eusebios Name in the Pasig City Mayoral
Candidates and of the Counting of Votes and Canvassing of Election
Returns
Moreover, Chairman Abalos 10 May 2004 memorandum is merely

an advisory required by the circumstances at the time. Eusebio filed
a motion for reconsideration on 9 May 2004, and there was not
enough time to resolve the motion for reconsideration before the
elections. Therefore, Eusebio was not yet disqualified by final
judgment at the time of the elections. Section 6 of the Electoral
Reforms Law of 1987 provides that "[a] candidate who has been
declared by final judgment to be disqualified shall not be voted for,
and
In its 5 May 2004 resolution, the COMELEC First Division ordered

the pertinent election officials to delete and cancel Eusebios name
from the certified list of Pasig City mayoral candidates, not to count
votes cast in Eusebios favor, and not to include votes cast in
Eusebios favor in the canvass of election returns. Eusebio filed a
motion for reconsideration of the resolution on 9 May 2004. Hence,
COMELEC Chairman Abalos issued a memorandum on 10 May
2004 which enjoined the pertinent election officials from
implementing the 5 May 2004 resolution. In a Resolution dated 11
May 2004, the COMELEC En Banc subsequently ratified and
adopted Chairman Abalos 10 May 2004 memorandum when it
denied Lanots motion to suspend the counting of votes and
canvassing of election returns.
the votes cast for him shall not be counted." Under Section 13 of the
COMELEC Rules of Procedure, a decision or resolution of a
Division in a special action becomes final and executory after the
lapse of fifteen days following its promulgation while a decision or
resolution of the COMELEC En Banc becomes final and executory
after five days from its promulgation unless restrained by this Court.
Lanot claims that Chairman Abalos whimsically grabbed the

adjudicatory power of the COMELEC En Banc when he issued the
10 May 2004 memorandum. Lanot asserts that the last sentence in
the dispositive portion of the COMELEC First Divisions 5 May
2004 Resolution, "[t]his Resolution is immediately executory unless
restrained by the Commission En Banc," should have prevented
Chairman Abalos from acting on his own.
Propriety of the Lifting of the Suspension of Eusebios Proclamation

In the same 11 May 2004 Resolution, the COMELEC En Banc
ordered the suspension of Eusebios proclamation in the event he
would receive the winning number of votes. Ten days later, the
COMELEC En Banc set aside the 11 May 2004 order and directed
Lanots claim has no basis, especially in light of the 11 May 2004
LAW ON ELECTION
31
the Pasig City Board of Canvassers to proclaim Eusebio as the

winning candidate for Pasig City Mayor. The COMELEC relied on
Resolutions 7128 and 712932 to justify the counting of Eusebios
votes and quoted from the Resolutions as follows:
proclamations by the Board of Canvassers and other pleadings with

similar purpose unless they are grounded on compelling reasons,
supported by convincing evidence and/or violative of the canvassing
procedure outlined in Resolution No. 6669.
Resolution No. 7128 -
We agree with Eusebio that the COMELEC En Banc did not commit
grave abuse of discretion in issuing its 21 May 2004 order. The
COMELEC has the discretion to suspend the proclamation of the
winning candidate during the pendency of a disqualification case
when evidence of his guilt is strong.33 However, an order suspending
the proclamation of a winning candidate against whom a
disqualification case is filed is merely provisional in nature and can
be lifted when warranted by the evidence.34
xxxx
NOW THEREFORE, the Commission RESOLVED, as it hereby
RESOLVES, to adopt certain policies and to direct all Board of
Canvassers, as follows:
1. to speed up its canvass and proclamation of all winning
candidates except under the following circumstances:
Propriety of the Dismissal of the

Disqualification Case and of the
Referral to the COMELEC
Law Department
a. issuance of an order or resolution suspending the proclamation;

b. valid appeal[s] from the rulings of the board in cases where
appeal is allowed and the subject appeal will affect the results of the
elections;
Lanot filed the petition for disqualification on 19 March 2004, a

little less than two months before the 10 May 2004 elections.
Director Ladra conducted hearings on the petition for
disqualification on 2, 5 and 7 April 2004. Director Ladra submitted
her findings and recommendations to the COMELEC on 4 May
2004. The COMELEC First Division issued a resolution adopting
Director Ladras recommendations on 5 May 2004. Chairman
Abalos informed the pertinent election officers of the COMELEC
First Divisions resolution through an Advisory dated 8 May 2004.
Eusebio filed a Motion for Reconsideration on 9 May 2004.
Chairman Abalos issued a memorandum to Director Ladra on
election day, 10 May 2004, and enjoined her from implementing the
5 May 2004 COMELEC First Division resolution. The petition for
disqualification was not yet finally resolved at the time of the
x x x x.
Resolution No. 7129
xxxx
NOW THEREFORE, the Commission on Elections, by virtue of the
powers vested in it by the Constitution, the Omnibus Election Code
and other elections laws, has RESOLVED, as it hereby RESOLVES,
to refrain from granting motions and petitions seeking to postpone
LAW ON ELECTION
32
elections. Eusebios votes were counted and canvassed, after which

Eusebio was proclaimed as the winning candidate for Pasig City
Mayor. On 20 August 2004, the COMELEC En Banc set aside the
COMELEC First Divisions order and referred the case to the
COMELEC Law Department.
referral of the disqualification case to its Law Department.

x x x We discern nothing in COMELEC Resolution No. 2050
declaring, ordering or directing the dismissal of a disqualification
case filed before the election but which remained unresolved after
the election. What the Resolution mandates in such a case is for the
Commission to refer the complaint to its Law Department for
investigation to determine whether the acts complained of have in
fact been committed by the candidate sought to be disqualified. The
findings of the Law Department then become the basis for
disqualifying the erring candidate. This is totally different from the
other two situations contemplated by Resolution No. 2050, i.e., a
disqualification case filed after the election but before the
proclamation of winners and that filed after the election and the
proclamation of winners, wherein it was specifically directed by the
same Resolution to be dismissed as a disqualification case.35
In its 20 August 2004 resolution, the COMELEC En Banc relied

heavily on the timing of the filing of the petition. The COMELEC
En Banc invoked Section 1 of Resolution No. 2050, which states:
1. Any complaint for the disqualification of a duly registered
candidate based upon any of the grounds specifically enumerated
under Section 68 of the Omnibus Election Code, filed directly with
the Commission before an election in which the respondent is a
candidate, shall be inquired into by the Commission for the purpose
of determining whether the acts complained of have in fact been
committed. Where the inquiry by the Commission results in a
finding before election, that the respondent candidate did in fact
commit the acts complained, the Commission shall order the
disqualification of the respondent candidate from continuing as such
candidate.
For his part, Eusebio asserts that the COMELEC has the prerogative
to refer the disqualification case to its Law Department. Thus, no
grave abuse of discretion can be imputed to the COMELEC.
Moreover, the pendency of a case before the Law Department for
purposes of preliminary investigation should be considered as
continuation of the COMELECs deliberations.
In case such complaint was not resolved before the election, the
Commission may motu proprio, or on motion of any of the
parties, refer the complaint to the Law Department of the
Commission as the instrument of the latter in the exercise of its
exclusive power to conduct a preliminary investigation of all
cases involving criminal infractions of the election laws. Such
recourse may be availed of irrespective of whether the
respondent has been elected or has lost in the election. (Emphasis
added)
However, contrary to the COMELEC En Bancs reliance on

Resolution No. 2050 in its 20 August 2004 resolution, the prevailing
law on the matter is Section 6 of the Electoral Reforms Law of
1987. Any rule or action by the COMELEC should be in accordance
with the prevailing law. Section 6 of the Electoral Reforms Law of
1987 provides:
Section 6. Effect of Disqualification Case. Any candidate who
has been declared by final judgment to be disqualified shall not be
The COMELEC also quoted from Sunga v. COMELEC to justify its
LAW ON ELECTION
33
voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or
any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong. (Emphasis added)
grounds for disqualification also constitute a criminal offense or

offenses, referral of the case to the Law Department is proper.
xxxx
It bears stressing that the Court in Sunga recognized the difference
between a disqualification case filed before and after an election
when, as earlier mentioned, it stated that the referral of the
complaint for disqualification where the case is filed before election
"is totally different from the other two situations contemplated by
Resolution No. 2050, i.e., a disqualification case filed after the
election but before the proclamation of winners and that filed after
the election and the proclamation of winners, wherein it was
specifically directed by the same Resolution to be dismissed as a
disqualification case."
Moreover, this Courts ruling in Sunga was further explained in

Bagatsing v. COMELEC,36 thus:
The COMELEC in Sunga obviously misapplied Resolution No.
2050 in dismissing the disqualification case therein simply because
it remained unresolved before the election and, in lieu thereof,
referring it to its Law Department for possible criminal prosecution
of the respondent for violation of the election laws. Notably, there is
nothing in paragraph 1 of Resolution No. 2050 which directs the
dismissal of the disqualification case not resolved before the
election. It says the COMELEC "may motu prop[r]io or on motion
of any of the parties, refer the complaint to the Law Department of
the Commission as an instrument of the latter in the exercise of its
exclusive power to conduct a preliminary investigation of all cases
involving criminal infractions of the election laws." The referral to
the Law Department is discretionary on the part of the COMELEC
and in no way may it be interpreted that the COMELEC will dismiss
the disqualification case or will no longer continue with the hearing
of the same. The reason for this is that a disqualification case may
have two (2) aspects, the administrative, which requires only a
preponderance of evidence to prove disqualification, and the
criminal, which necessitates proof beyond reasonable doubt to
convict. Where in the opinion of the COMELEC, the acts which are
LAW ON ELECTION
Indeed, the 20 August 2004 resolution of the COMELEC En Banc

betrayed its misunderstanding of the two aspects of a
disqualification case. The electoral aspect of a disqualification case
determines whether the offender should be disqualified from being a
candidate or from holding office. Proceedings are summary in
character and require only clear preponderance of evidence. An
erring candidate may be disqualified even without prior
determination of probable cause in a preliminary investigation. The
electoral aspect may proceed independently of the criminal aspect,
and vice-versa.
The criminal aspect of a disqualification case determines whether
there is probable cause to charge a candidate for an election offense.
The prosecutor is the COMELEC, through its Law Department,
which determines whether probable cause exists.37 If there is
probable cause, the COMELEC, through its Law Department, files
the criminal information before the proper court. Proceedings before
34
the proper court demand a full-blown hearing and require proof

beyond reasonable doubt to convict.38 A criminal conviction shall
result in the disqualification of the offender, which may even
include disqualification from holding a future public office.39
c. Petition to disqualify a candidate pursuant to Sec. 68 of the

Omnibus Election Code and disqualify a candidate for lack of
qualifications or possessing same grounds for disqualification;
xxx
The two aspects account for the variance of the rules on disposition
and resolution of disqualification cases filed before or after an
election. When the disqualification case is filed before the elections,
the question of disqualification is raised before the voting public. If
the candidate is disqualified after the election, those who voted for
him assume the risk that their votes may be declared stray or invalid.
There is no such risk if the petition is filed after the elections. 40 The
COMELEC En Banc erred when it ignored the electoral aspect of
the disqualification case by setting aside the COMELEC First
Divisions resolution and referring the entire case to the COMELEC
Law Department for the criminal aspect.
Sec. 2. Suspension of the Comelec Rules of Procedure. In the

interest of justice and in order to attain speedy disposition of cases,
the Comelec Rules of Procedure or any portion thereof inconsistent
herewith is hereby suspended.
Sec. 3. Where to file petitions. The petitions shall be filed with
the following offices of the Commission:
xxx
b. For x x x local positions including highly-urbanized cities, in the
National Capital Region, with the Regional Election Director of said
region;
Moreover, the COMELEC En Bancs act and Eusebios assertions

lose sight of the provisions of Resolution No. 6452 ("Resolution
6452"), "Rules Delegating to COMELEC Field Officials the
Hearing and Reception of Evidence of Disqualification Cases Filed
in Connection with the May 10, 2004 National and Local Elections;
Motu ProprioActions and Disposition of Disqualification Cases,"
promulgated on 10 December 2003. The pertinent portions of
Resolution 6452 provide:
xxx
PROVIDED, in cases of highly-urbanized cities the filing of
petitions for disqualification shall be with the Office of the Regional
Election Directors. x x x
Section 1. Delegation of reception of evidence. The Commission

hereby designates its field officials who are members of the
Philippine Bar to hear and receive evidence in the following
petitions:
xxxx
The Regional Election Directors concerned shall hear and receive
evidence strictly in accordance with the procedure and timeliness
herein provided.
xxx
LAW ON ELECTION
35
Sec. 5. Procedure in filing petitions. For purposes of the

preceding section, the following procedure shall be observed:
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.
xxxx
xxxx
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
Indeed, what the COMELEC did in its 20 August 2004 resolution

was contrary to "the interest of justice and x x x speedy disposition
of cases." Resolution No. 2050 referring the electoral aspect to the
Law Department is procedurally inconsistent with Resolution 6452
delegating reception of evidence of the electoral aspect to the
Regional Election Director. The investigation by the Law
Department under Resolution No. 2050 produces the same result as
the investigation under Resolution 6452 by the Regional Election
Director. Commissioner Tuasons dissent underscored the
inconsistency between the avowed purpose of Resolution 6452 and
the COMELEC En Bancs 20 August 2004 resolution:
1. The verified petition to disqualify a candidate pursuant to Sec. 68

of the Omnibus Election Code x x x may be filed any day after the
last day [of] 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 with
the concerned office mentioned in Sec. 3 personally or through a
duly authorized representative 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:
x x x [T]he preliminary investigation for purposes of finding

sufficient ground for [Eusebios] disqualification, has already been
accomplished by the RED-NCR prior to the election. There also
appears no doubt in my mind, that such recommendation of the
investigating officer, RED-NCR, was substantive and legally sound.
The First Division agreed with the result of the
investigation/recommendation, with the facts of the case clearly
distilled in the assailed resolution. This, I likewise found to be in
accord with our very own rules and the jurisprudential doctrines
aforestated. There could be no rhyme and reason then to dismiss the
electoral aspect of the case (i.e., disqualification) and refer the same
to the Law Department for preliminary investigation. As held in
Sunga, clearly, the legislative intent is that the COMELEC should
continue the trial and hearing of the disqualification case to its
2.a having given money or other material consideration to influence,

induce or corrupt the voters or public officials performing electoral
functions; or
xxx
2.d having solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104 of the Omnibus Elections
Code; or
LAW ON ELECTION
36
conclusion, i.e., until judgment is rendered thereon. The criminal

aspect of the case is an altogether different issue.
dubbed as "Lingap sa Barangay" in Barangay San Miguel,

Pasig City wherein [Eusebio] allegedly asked the people to vote
for him and solicited for their support x x x:
Sunga said the reason is obvious: A candidate guilty of election

offenses would be undeservedly rewarded, instead of punished, by
the dismissal of the disqualification case against him simply because
the investigating body was unable, for any reason caused upon it, to
determine before the election if the offenses were indeed committed
by the candidate sought to be disqualified. All that the erring
aspirant would need to do is to employ delaying tactics so that the
disqualification case based on the commission of election offenses
would not be decided before the election. This scenario is productive
of more fraud which certainly is not the main intent and purpose of
the law.41
xxxx
2) Another speech given on March 17, 2004 in ROTC St.,
Rosario, Pasig City wherein [Eusebio] again allegedly uttered
defamatory statements against co-[candidate] Lanot and
campaigned for his (respondents) and his groups candidacy.
xxxx
3) He caused to be published in leading newspapers about a
survey allegedly done by Survey Specialist, Inc. showing him to
be leading in the mayoralty race in Pasig City.
We agree with Lanot that the COMELEC committed grave abuse of

discretion when it ordered the dismissal of the disqualification case
pending preliminary investigation of the COMELEC Law
Department. A review of the COMELEC First Divisions 5 May
2004 resolution on Eusebios disqualification is in order, in view of
the grave abuse of discretion committed by the COMELEC En Banc
in its 20 August 2004 resolution.
xxxx
4) He paid a political advertisement in the Philippine Free Press
in the amount of P193,660.00 as published in its issue dated
February 7, 2004.
Rightful Pasig City Mayor
xxxx
Eusebios Questioned Acts
5) The display of billboards containing the words "Serbisyo

Eusebio" and "ST" which means "Serbisyong Totoo" before the
start of the campaign period.
We quote the findings and recommendations of Director Ladra as

adopted by the COMELEC First Division:
xxxx
The questioned acts of [Eusebio] are as follows:
6) Posters showing the respondent and his running mate Yoyong
1) The speech uttered on February 14, 2004 during the meeting

LAW ON ELECTION
37
Martirez as well those showing the name "KA ENTENG

EUSEBIO" and "BOBBY EUSEBIO" in connection with the
dengue project were posted everywhere even before the start of
may proceed independently of the other.

Eusebio is correct when he asserts that this Court is not a trier of
facts. What he overlooks, however, is that this Court may review the
factual findings of the COMELEC when there is grave abuse of
discretion and a showing of arbitrariness in the COMELECs
decision, order or resolution.43 We find that the COMELEC
committed grave abuse of discretion in issuing its 20 August 2004
resolution.
xxxx
7) Streamers bearing the words "Pasig City is for PEACE" were
likewise displayed with the two letters "E" prominently written.
Our review of the factual findings of the COMELEC, as well as the

law applicable to this case, shows that there is no basis to disqualify
Eusebio. Director Ladra recommended the disqualification of
Eusebio "for violation of Section 80 of the Omnibus Election Code."
The COMELEC First Division approved Director Ladras
recommendation and disqualified Eusebio. Section 80 of the
Omnibus Election Code provides:
xxxx
8) Stickers of [Eusebio] were likewise pasted all over the city
before the start of the campaign period.
xxxx
9) [Eusebio] engaged in vote-buying by distributing shoes to the
students while telling the parents that by way of gratitude, they
should vote for him.

outside campaign period. It shall be unlawful for any person,
whether or not a voter or candidate, or for any party, or association
of persons, to engage in an election campaign or partisan political
activity except during the campaign period: Provided, That political
parties may hold political conventions or meetings to nominate their
official candidates within thirty days before the commencement of
the campaign period and forty-five days for Presidential and VicePresidential election. (Emphasis supplied)
x x x x (Emphasis in the original)42

Eusebio argues that: (1) Lanot is in estoppel for participating in the
proceedings before the COMELEC Law Department; (2) Lanot
abandoned the present petition also because of his participation in
the proceedings before the COMELEC Law Department; and (3)
Lanot is guilty of forum-shopping. These arguments fail for lack of
understanding of the two aspects of disqualification cases. The
proceedings before the COMELEC Law Department concern the
criminal aspect, while the proceedings before this Court concern the
electoral aspect, of disqualification cases. The proceedings in one
LAW ON ELECTION
What Section 80 of the Omnibus Election Code prohibits is "an

election campaign or partisan political activity" by a "candidate"
"outside" of the campaign period. Section 79 of the same Code
defines "candidate," "election campaign" and "partisan political
activity" as follows:
38
SECTION 79. Definitions. As used in this Code:
enhancing the chances of aspirants for nomination for candidacy to a

public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan
election activity.
(a) The term "candidate" refers to any person aspiring for or seeking
an elective public office, who has filed a certificate of candidacy by
himself or through an accredited political party, aggroupment, or
coalition of parties;
Public expressions or opinions or discussions of probable issues in a

forthcoming election or on attributes of or criticisms against
probable candidates proposed to be nominated in a forthcoming
political party convention shall not be construed as part of any
election campaign or partisan political activity contemplated under
this Article.
(b) The term "election campaign" or "partisan political activity"

refers to an act designed to promote the election or defeat of a
particular candidate or candidates to a public office which shall
include:
Thus, the essential elements for violation of Section 80 of the

Omnibus Election Code are: (1) a person engages in an election
campaign or partisan political activity; (2) the act is designed to
candidates; (3) the act is done outside the campaign period.

votes and/or undertaking any campaign or propaganda for or against
a candidate;
The second element requires the existence of a "candidate." Under

Section 79(a), a candidate is one who "has filed a certificate of
candidacy" to an elective public office. Unless one has filed his
certificate of candidacy, he is not a "candidate." The third element
requires that the campaign period has not started when the election
campaign or partisan political activity is committed.

office;
Assuming that all candidates to a public office file their certificates

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

The foregoing enumerated acts if performed for the purpose of
LAW ON ELECTION
39
acts done "outside" the campaign period.
and uniformly printed using the same type size. A fixed space where
the chairman of the Board of Election Inspectors shall affix his/her
signature to authenticate the official ballot shall be provided.
Thus, if all candidates file their certificates of candidacy on the last

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

For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate
in the election shall not be later than one hundred twenty (120)
days before the elections: Provided, That, any elective official,
whether national or local, running for any office other than the one
which he/she is holding in a permanent capacity, except for
president and vice-president, shall be deemed resigned only upon
the start of the campaign period corresponding to the position for
which he/she is running: Provided, further, That, unlawful acts or
omissions applicable to a candidate shall take effect upon the start of
the aforesaid campaign period: Provided, finally, That, for purposes
of the May 11, 1998 elections, the deadline for filing of the
certificate of candidacy for the positions of President, VicePresident, Senators and candidates under the party-list system as
well as petitions for registration and/or manifestation to participate
in the party-list system shall be on February 9, 1998 while the
deadline for the filing of certificate of candidacy for other positions
shall be on March 27, 1998.
There is no dispute that Eusebios acts of election campaigning or

partisan political activities were committed outside of the campaign
period. The only question is whether Eusebio, who filed his
certificate of candidacy on 29 December 2003, was a "candidate"
when he committed those acts before the start of the campaign
period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the
deadline for the filing of certificates of candidacy to 120 days before
election day. Thus, the original deadline was moved from 23 March
2004 to 2 January 2004, or 81 days earlier. The crucial question is:
did this change in the deadline for filing the certificate of candidacy
make one who filed his certificate of candidacy before 2 January
2004 immediately liable for violation of Section 80 if he engaged in
election campaign or partisan political activities prior to the start of
the campaign period on 24 March 2004?
The official ballots shall be printed by the National Printing Office

and/or the Bangko Sentral ng Pilipinas at the price comparable with
that of private printers under proper security measures which the
Commission shall adopt. The Commission may contract the services
of private printers upon certification by the National Printing
Office/Bangko Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and deputized citizens
arms of the Commission may assign watchers in the printing,
Section 11 of RA 8436 provides:

SECTION 11. Official Ballot. The Commission shall prescribe the
size and form of the official ballot which shall contain the titles of
the positions to be filled and/or the propositions to be voted upon in
an initiative, referendum or plebiscite. Under each position, the
names of candidates shall be arranged alphabetically by surname
LAW ON ELECTION
40
storage and distribution of official ballots.
SENATOR GONZALES. And you cannot say that the campaign

period has not yet began [sic].
To prevent the use of fake ballots, the Commission through the

Committee shall ensure that the serial number on the ballot stub
shall be printed in magnetic ink that shall be easily detectable by
inexpensive hardware and shall be impossible to reproduce on a
photocopying machine, and that identification marks, magnetic
strips, bar codes and other technical and security markings, are
provided on the ballot.
THE CHAIRMAN (REP. TANJUATCO). If we dont provide that

the filing of the certificate will not bring about ones being a
candidate.
SENATOR GONZALES. If thats a fact, the law cannot change a
fact.
The official ballots shall be printed and distributed to each

city/municipality at the rate of one (1) ballot for every registered
voter with a provision of additional four (4) ballots per precinct. 44
(Emphasis added)
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide

that the filing of the certificate of candidacy will not result in that
official vacating his position, we can also provide that insofar he is
concerned, election period or his being a candidate will not yet
commence. Because here, the reason why we are doing an early
filing is to afford enough time to prepare this machine readable
ballots.
Under Section 11 of RA 8436, the only purpose for the early filing
of certificates of candidacy is to give ample time for the printing of
official ballots. This is clear from the following deliberations of the
Bicameral Conference Committee:
So, with the manifestations from the Commission on Elections, Mr.

Chairman, the House Panel will withdraw its proposal and will
agree to the 120-day period provided in the Senate version.
SENATOR GONZALES. Okay. Then, how about the campaign

period, would it be the same[,] uniform for local and national
officials?
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr.

Chairman.
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree

to retaining it at the present periods.
xxxx
SENATOR GONZALES. But the moment one files a certificate of

candidacy, hes already a candidate, and there are many prohibited
acts on the part of candidate.
SENATOR GONZALES. How about prohibition against

campaigning or doing partisan acts which apply immediately upon
being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention
LAW ON ELECTION
41
of this provision is just to afford the Comelec enough time to print

the ballots, this provision does not intend to change the campaign
law prior to RA 8436, the campaign period for local officials

commences 45 days before election day. For the 2004 local
elections, this puts the start of the campaign period on 24 March
2004. This also puts the last day for the filing of certificate of
candidacy, under the law prior to RA 8436, on 23 March 2004.
Eusebio is deemed to have filed his certificate of candidacy on
periods as presently, or rather election periods as presently fixed by

existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be
subject to the other prohibition.
this date for purposes other than the printing of ballots because this
is the interpretation of Section 80 of the Omnibus Election Code
most favorable to one charged of its violation. Since Section 80
defines a criminal offense,46 its provisions must be construed
liberally in favor of one charged of its violation. Thus, Eusebio
became a "candidate" only on 23 March 2004 for purposes other
than the printing of ballots.
THE CHAIRMAN (REP. TANJUATCO). Thats right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually,
there would be no conflict anymore because we are talking about the
120-day period before election as the last day of filing a certificate
of candidacy, election period starts 120 days also. So that is election
period already. But he will still not be considered as a
candidate.45(Emphasis added)
Acts committed by Eusebio prior to his being a "candidate" on 23

March 2004, even if constituting election campaigning or partisan
political activities, are not punishable under Section 80 of the
Omnibus Election Code. Such acts are protected as part of freedom
of expression of a citizen before he becomes a candidate for elective
public office. Acts committed by Eusebio on or after 24 March
2004, or during the campaign period, are not covered by Section 80
which punishes only acts outside the campaign period.
Thus, because of the early deadline of 2 January 2004 for purposes

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

they violate Section 80 of the Omnibus Election Code.
We begin with the 14 February 2004 and the 17 March 2004
speeches of Eusebio:
1) The speech uttered on February 14, 2004 during the meeting
dubbed as "Lingap sa Barangay" in Barangay San Miguel,
Pasig City wherein [Eusebio] allegedly asked the people to vote
Under Section 3(b) of the Omnibus Election Code, the applicable

LAW ON ELECTION
42
for him and solicited for their support x x x:
The political advertisement in the Philippine Free Press issue of 7

February 2004 was also made before Eusebio became a candidate on
23 March 2004. Thus:
2) Another speech given on March 17, 2004 in ROTC St.,

Rosario, Pasig City wherein [Eusebio] again allegedly uttered
defamatory statements against co-[candidate] Lanot and
campaigned for his (respondents) and his groups candidacy.47
4) He paid a political advertisement in the Philippine Free Press

in the amount of P193,660.00 as published in its issue dated
February 7, 2004.49 (Emphasis in the original)
The 14 February 2004 and 17 March 2004 speeches happened

before the date Eusebio is deemed to have filed his certificate of
candidacy on 23 March 2004 for purposes other than the printing of
ballots. Eusebio, not being a candidate then, is not liable for
speeches on 14 February 2004 and 17 March 2004 asking the people
to vote for him.
The display of Eusebios billboards, posters, stickers, and streamers,

as well as his distribution of free shoes, all happened also before
Eusebio became a candidate on 23 March 2004. Thus:
5) The display of billboards containing the words "Serbisyo
Eusebio" and "ST" which means "Serbisyong Totoo" before the
start of the campaign period.
The survey showing Eusebio leading in the mayoralty race was

published before Eusebio was deemed to have filed his certificate of
candidacy on 23 March 2004. Thus:
xxxx
3) He caused to be published in leading newspapers about a

survey allegedly done by Survey Specialist, Inc. showing him to
be leading in the mayoralty race in Pasig City.
6) Posters showing the respondent and his running mate Yoyong

Martinez as well those showing the name "KA ENTENG
EUSEBIO" and "BOBBY EUSEBIO" in connection with the
dengue project were posted everywhere even before the start of
xxxx
xxxx
They also presented Certification issued by Mr. Diego Cagahastian,
News Editor of Manila Bulletin dated 10 March 2004 and Mr. Isaac
G. Belmonte, Editor-in-Chief of Philippine Star dated March 2,
2004 to the effect that the articles in question came from the camp of
[Eusebio].48 (Emphasis in the original)
Petitioners witnesses Alfonso Cordova and Alfredo Lacsamana as

well as Hermogenes Garcia stated in their respective affidavits
marked as Exhs. "L" and "L-1" that the pictures were taken on
March 3, 7 & 8, 2004.
Eusebio is not liable for this publication which was made before he
became a candidate on 23 March 2004.
LAW ON ELECTION
xxxx
43
7) Streamers bearing the words "Pasig City is for PEACE" were

likewise displayed with the two letters "E" prominently written.
However, Director Ladra erroneously assumed that Eusebio became

a "candidate," for purposes of Section 80, when Eusebio filed his
certificate of candidacy on 29 December 2003.
xxxx
xxxx
Under Section 11 of RA 8436, Eusebio became a "candidate," for

purposes of Section 80 of the Omnibus Election Code, only on 23
March 2004, the last day for filing certificates of candidacy.
Applying the facts - as found by Director Ladra and affirmed by the
COMELEC First Division - to Section 11 of RA 8436, Eusebio
clearly did not violate Section 80 of the Omnibus Election Code
which requires the existence of a "candidate," one who has filed his
certificate of candidacy, during the commission of the questioned
acts.
9) [Eusebio] engaged in vote-buying by distributing shoes to the

students while telling the parents that by way of gratitude, they
should vote for him.
Eusebio asserts that Section 11 of RA 8436 exculpates him from any

liability for the questioned acts.1wphi1 Eusebio points out that
Section 11 contains the following proviso:
The affidavits of Ceferino Tantay marked as Exh. "M" and Flor

Montefalcon, Norie Altiche and Myrna Verdillo marked as Exh. "O"
are uncontroverted. Their statement that free shoes were given to the
students of Rizal High School was corroborated by the Manila
Bulletin issue of February 6, 2004 which showed the picture of the
respondent delivering his speech before a group of students.
Provided, further, That, unlawful acts or omissions applicable to a

candidate shall take effect upon the start of the aforesaid campaign
period: x x x
Said streamers were among those captured by the camera of the

petitioners witnesses Hermogenes Garcia and Nelia Sarmiento
8) Stickers of [Eusebio] were likewise pasted all over the city
Eusebio theorizes that since the questioned acts admittedly took

place before the start of the campaign period, such acts are not
"unlawful acts or omissions applicable to a candidate."
x x x x50 (Emphasis in the original)
We find no necessity to apply in the present case this proviso in

Section 11 of RA 8436. Eusebios theory legalizes election
campaigning or partisan political activities before the campaign
period even if a person has already filed his certificate of candidacy
based on the election periods under existing laws prior to RA 8436.
Under Eusebios theory, Section 11 of RA 8436 punishes unlawful
acts applicable to a candidate only if committed during the
Based on the findings of Director Ladra, the questioned acts

attributed to Eusebio all occurred before the start of the campaign
period on 24 March 2004. Indeed, Director Ladra applied Section 80
of the Omnibus Election Code against Eusebio precisely because
Eusebio committed these acts "outside" of the campaign period.
LAW ON ELECTION
44
campaign period.
disqualification to bring such awareness within the realm of

notoriety but nonetheless the voters still cast their votes in favor of
the ineligible candidate.53 Lanot and Benavides failed to prove that
the exception applies in the present case. Thus, assuming for the
sake of argument that Eusebio is disqualified, the rule on succession
provides that the duly elected Vice-Mayor of Pasig City shall
succeed in Eusebios place.54
By definition, the election offense in Section 80 of the Omnibus

Election Code cannot be committed during the campaign period. On
the other hand, under Eusebios theory, unlawful acts applicable to a
candidate cannot be committed outside of the campaign period. The
net result is to make the election offense in Section 80 physically
impossible to commit at any time. We shall leave this issue for some
other case in the future since the present case can be resolved
without applying the proviso in Section 11 of RA 8436.
WHEREFORE, we DISMISS the petition. We find no grave abuse

of discretion in the 10 May 2004 Advisory of Chairman Benjamin S.
Abalos and in the 21 May 2004 Order of the Commission on
Elections En Banc. We SET ASIDE the 20 August 2004 Resolution
of the Commission En Banc since respondent Vicente P. Eusebio did
not commit any act which would disqualify him as a candidate in the
10 May 2004 elections.
Effect of Eusebios Possible

Disqualification
As second placer, Lanot prayed that he be proclaimed as the rightful
Pasig City Mayor in the event of Eusebios disqualification. As third
placer, Benavides, on the other hand, prays that she be proclaimed as
the rightful Pasig City Mayor in the event of Eusebios
disqualification and in view of Lanots death. Even if we assume
Eusebios disqualification as fact, we cannot grant either prayer.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
The disqualification of the elected candidate does not entitle the

candidate who obtained the second highest number of votes to
occupy the office vacated because of the disqualification.51 Votes
cast in favor of a candidate who obtained the highest number of
votes, against whom a petition for disqualification was filed before
the election, are presumed to have been cast in the belief that he was
qualified. For this reason, the second placer cannot be declared
elected.52
SEPARATE OPINION
PANGANIBAN, CJ:
While I agree "in the result" of the ponencia, which recommends
that the Petition be dismissed, I have some reservations with regard
to the discussion of the issue of whether Eusebio violated Section 80
The exception to this rule rests on two assumptions. First, the one
who obtained the highest number of votes is disqualified. Second,
the voters are so fully aware in fact and in law of a candidates
LAW ON ELECTION
45
of the Omnibus Election Code.
"accused."
The ponencia states that "[u]nder Section 11 of RA 8436, Eusebio

became a candidate, for purposes of Section 80 of the Omnibus
Election Code (OEC), only on 23 March 2004, the last day for filing
certificates of candidacy." Pursuant to this statement, Eusebio,
despite having filed a Certificate of Candidacy on December 29,
2003, was still not deemed a candidate until the last day for filing
certificates of candidacy. This proposition seems to disregard the
definition of a "candidate" as stated in Section 79 (a). 1 The bases
given in the ponencia2 for this action are (1) the law prior to RA
8436; and (2) liberal construction, in favor of the accused.
Indeed, the deliberations on Republic Act 8436 show that the

lawmakers initially thought that the filing of a certificate of
candidacy to meet the deadline for purposes of the ballot will not
deem the filer a candidate for other purposes, particularly in
connection with a candidates prohibited acts. This idea, however,
did not appear in the final approved version of the law. As it is, there
appears no basis or necessity for distinguishing when a person is
considered a candidate for the purposes of printing the ballots, on
the one hand; and for other purposes, on the other.
To stress, what came out in the final approved law was the Section
11 proviso, which reads as follows: "Provided, further, That,
unlawful acts or omissions applicable to a candidate shall take effect
upon the start of the aforesaid campaign period." The ponencia finds
"no necessity to apply in the present case this proviso . . . since the
present case can be resolved without applying the proviso in Section
11 of RA 8436." I believe, though, that the application of the proviso
has to be addressed in the present case if the merits are to be
resolved squarely.
In my view, these grounds are insufficient. First, being the more

current law, Republic Act 8436 now conveys the legislative will.
Hence, the prior law, if inconsistent with it, can no longer be
applied. Therefore, the earlier law, which set the deadline of the
filing of the certificate of candidacy on the day before the beginning
of the campaign period,3 can no longer be followed because the
present law has reset the deadline at 120 days before election day.
Candidates thus need to file only one certificate of candidacy. To
encourage, or to deem as proper, the filing of two certificates (the
first for purposes of the ballot and the second for all other purposes)
-- whether actual or in principle -- will merely promote unnecessary
waste and confusion.
It is my position that Director Ladra was correct in considering

Eusebio to have become a candidate even for purposes of Section
80, when he filed his certificate of candidacy on December 29,
2003. This inference is very clear from Section 79, which has not
been repealed -- expressly or impliedly -- by Republic Act 8436.
Eusebio thus violated Section 80.
Second, the present case concerns only the electoral and not the
criminal aspect, as very well differentiated in the ponencia. Hence, a
liberal interpretation of Section 80 is not called for. More important,
the determination of who is a candidate in relation to the filing of a
certificate of candidacy involves Section 79 of the OEC and
Republic Act 8436, not Section 80 of the OEC. Not being penal,
these provisions should not be construed liberally in favor of the
LAW ON ELECTION
Be that as it may, the net result is that the acts mentioned in Section
80 cannot be deemed unlawful at any time because of the clause in
Section 11 of Republic Act 8436 -- that "unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the
46
aforesaid campaign period"; and the fact that by definition the

unlawful acts in Section 80 of the OEC cannot be committed during
the campaign period. In other words, the foregoing proviso has been
impliedly repealed. Hence, there is no effective basis for
disqualifying Eusebio.
The petition for disqualification against respondent Vicente Eusebio

was originally filed by petitioner based on two provisions of the
Omnibus Election Code (Code), namely Sections 68 and 80. Section
80 declares as unlawful forany person to engage in an election
campaign or partisan political activity except during the campaign
period, while Section 68 authorizes the disqualification of any
candidate who violates Section 80. Moreover, Section 262 of the
Code provides that violation of Section 80 constitutes an election
offense, which in turn engenders criminal liability.
WHEREFORE, I vote to DISMISS the Petition.

ARTEMIO V. PANGANIBAN
Chief Justice
In the case at bar, petitioner, along with four other candidates in the
2004 Pasig City elections, timely filed the petition for
disqualification against respondent Mayor Vicente Eusebio
(Eusebio) well before the 2004 elections. The case had still been
pending before the COMELEC by the time Eusebio was proclaimed
as the winner in the mayoralty elections of that year. After the
COMELEC finally dismissed the petition for disqualification, Lanot
elevated such decision to the Court for review under Rule 64 of the
Rules of Civil Procedure, as was his right. However, none of the
four co-petitioners joined Lanot in his petition before this Court.
Then, Lanot was tragically assassinated on 13 April 2005.
SEPARATE OPINION
TINGA, J.:
In legal contemplation, petitions for disqualification of election
candidates are supposed to be filed, litigated and decided prior to the
proclamation of the candidate sought to be disqualified. Any attempt
to initiate or intervene in a petition for disqualification must be done
before the proclamation of the candidate. Yet Justice Carpios
opinion now rules that even long after the candidate has been
proclaimed, any person who professes some interest may be allowed
to intervene. This is a ruling that would effectively lengthen the
adjudication of petitions for disqualification and encourage the
dilatory use of the intervention process even if the original petitioner
himself no longer has interest in pursuing the petition. The
procedure for disqualification was intended as a finite process,
Justice Carpios opinion now makes it infinite.
Had Lanot been joined in his present petition by any of his original
co-petitioners, there would be no impediment in deciding this case
on the merits. Since they did not, there was nobody left with
standing to maintain this present petition upon Lanots death.
However, two persons, Benavides and Raymundo, none of whom
showed previous interest to join or intervene in the petition while
Lanot was still alive, now seek to be admitted before this Court as,
I respectfully dissent insofar as Justice Carpios opinion would

resolve the case on the merits, and submit that the petition should be
dismissed on the ground of mootness.
LAW ON ELECTION
respectively, an intervenor or as a substitute 1 to Lanot. There is no

statutory or procedural rule that would authorize such
unconventional steps, yet Justice Carpios opinion has permitted the
47
It has been suggested that Mercado v. Manzano6 somehow applies as

precedent in permitting the belated participation of Benavides and
Raymundo in the proceedings before this Court. Yet a close
examination of that case actually bolsters my position.
same.
What are the fundamental predicates that should be considered in
ascertaining whether Benavides and Raymundo should be allowed
to intervene and substitute Lanot in the petition at this very late
stage before the Court? First, the COMELEC Rules of Procedure
state that the petition for disqualification must be filed "any day
after the last day for filing of certificates of candidacy but not later
than the date of proclamation."2 Second, the COMELEC Rules of
Procedure also authorize any person "allowed to initiate an action
or proceeding" to intervene in such action or proceeding during the
trial, and within the discretion before the COMELEC.
In Mercado, the petition for intervention to a disqualification case

was filed eight (8) days after the 11 May 1998 elections. The Court
allowed such intervention even though it was filed after the
elections, hence the reliance by Justice Carpios opinion on
Mercado. However, it should be noted that even though the action
for intervention came after the election, it still was lodged three (3)
months before a winning candidate was proclaimed. Thus,
intervention therein was proper as it was filed by Mercado at a time
when he was still properly capacitated to initiate an action for
disqualification. The Court pronounced:
Clearly, only persons who are allowed to initiate an action or

proceeding are authorized to intervene in the said action or
proceeding. Are Benavides or Raymundo "allowed to initiate an
action or proceeding" at the point when they sought to intervene?
They are not, for the initiation of an action or proceeding may be
done "not later than the date of proclamation."
Private respondent cites [provisions] of Rule 8 of the Rules of

Procedure of the COMELEC in support of his claim that petitioner
has no right to intervene and, therefore, cannot bring this suit to set
aside the ruling denying his motion for intervention: xxx Private
respondent argues that petitioner has neither legal interest in the
matter in litigation nor an interest to protect because he is "a
defeated candidate for the vice-mayoralty post of Makati City [who]
cannot be proclaimed as the Vice-Mayor of Makati City even if the
private respondent be ultimately disqualified by final and executory
judgment.
There is indeed a consistent thrust in the law that the petition for
disqualification should be resolved with finality before
proclamation. It is required that petitions for disqualification be
heard summarily after due notice.3 Section 72 enjoins the
COMELEC and the courts to "give priority to cases of
disqualification to the end that a final decision shall be rendered
not later than seven days before the election in which the
disqualification is sought."4While the law concedes that such final
decision might be rendered even after the election or the
proclamation of the winning candidate,5 it cannot be doubted that
the dominant intent of the law is to see to it that petitions for
disqualification are resolved as immediately as possible.
LAW ON ELECTION
The flaw in this argument is it assumes that, at the time

petitioner sought to intervene in the proceedings before the
COMELEC, there had already been a proclamation of the
results of the election for the vice mayoralty contest for Makati
City, on the basis of which petitioner came out only second to
private respondent. The fact, however, is that there had been no
48
proclamation at that time. Certainly, petitioner had, and still has,

an interest in ousting private respondent from the race at the time he
sought to intervene. xxx7
candidate. This is evident from Section 6 of Rep. Act No. 6646,

which reads:
Mercado clearly laid emphasis on the fact that the attempt at

intervention therein was viable as it was made before the
proclamation of a winning candidate. Had Mercado sought to
intervene in the proceedings before the COMELEC after the
proclamation, would the intervention have prospered? Considering
that the Court expressly took into account that there had been no
proclamation yet when the intervention was filed, it stands to reason
that the intervention would not have prospered if it was filed after
proclamation.
SECTION 6. Effect of Disqualification Case. Any candidate who

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

lies even after election. But the same is terminated upon
proclamation, after which there are different remedies available to
oust the winning candidate from office, such as an election protest
or a quo warranto petition. The availability of remedies other than
intervention should guide the Court in adjudging whether there is
basis for a liberal application of the rules. In this case at bar, the
intervenors were not barred from joining Lanots petition for
disqualification, or intervening in the same prior to the
proclamation of Eusebio. They did not do so. So, they can no longer
do what they could have but did not do before proclamation.
It is telling that the injunctive relief which the COMELEC may

authorize in a disqualification case is thesuspension of the
proclamation of the candidate in question. This qualification further
militates that the period for the successful initiation or intervention
in a petition for disqualification terminates upon the proclamation of
the said candidate. It is also revealing that there stands no right of
intervention by any third party to the pending disqualification case,
the allowance of such intervention being dependent on the sound
discretion of the COMELEC or the court concerned.
There is another crucial reason why a limitation should be imposed
on attempts to intervene in a disqualification petition after the
proclamation of a winning candidate. Without such proscription, any
person or political party would be able to maintain a petition for
disqualification through intervention even after the original
petitioners had withdrawn the petition, lost interest in pursuing the
petition, or died.
It should be kept in mind that a petition for disqualification is

intended at canceling the certificate of candidacy of a candidate, as
distinguished from nullifying the election that installs that candidate
into office. Thus, there are at most two positive reliefs that can be
obtained in a petition for disqualification the cancellation of the
certificate of candidacy; and if the election had already taken place,
the injunction against the proclamation of the controversial
LAW ON ELECTION
49
For example, during the campaign period, A, a candidate for city

mayor, filed a petition for disqualification against B, the incumbent
running for re-election, for violations of the Omnibus Election
Code. The petition had not yet been finally decided when B was
proclaimed as the clear winner against A. Out of a desire for peace
within the city, A decided to concede Bs victory and to withdraw
the petition for disqualification a most desirable scenario even if
perhaps atypical. However, following Justice Carpios opinion, a
person such as C, a non-candidate who nonetheless is an estranged
creditor of B, could very well intervene and substitute in behalf of A
and pursue the disqualification case. There is likewise no stopping a
D or an E to eventually follow suit even if C eventually dies or loses
interest in pursuing the protest. Justice Carpios opinion would allow
a petition for disqualification to be litigated in perpetuity, long after
the proclamation of a candidate, and even after the parties who filed
the petition have since lost interest in continuing the same.
The way to preclude abuse or anomalies to the right to intervene in

disqualification cases is to stress a clear and equitable rule that
intervention after proclamation should not be permitted, just as the
filing of a petition for disqualification after proclamation is
prohibited. In other words, the proclamation as a bench mark
operates as a bar to the filing of the petition for disqualification as
well as to any motion for intervention therein. Such an
interpretation, which avoids inconvenient or absurd results, is
desirable considering the principle in statutory construction that
"where there is ambiguity, such interpretation as will avoid
inconvenience and absurdity is to be adopted."
There have been instances where the Court has adopted a liberal
stance in allowing for the substitution of a deceased party to an
election protest, as was authorized in cases such as De Mesa v.
Mencias8 and Lomugdang v. Javier.9 However, an election protest
stands as a different specie from a petition for disqualification.
Petitions for disqualifications are supposed to be resolved even prior
to the election itself, while election protests are necessarily
commenced only after the election is held. It would be improper to
rely on either De Mesa orLomugdang to justify the sought-for
interventions in this case. These cases do establish the right to
substitution of an election protestee/protestant, yet it should be noted
that the parties who attempted to substitute in these cases were real
parties in interest, defined in Poe v. Arroyo as "those who would be
benefited or injured by the judgment, and the party who is entitled to
the avails of the suit." In fact, if we were to deem the doctrines on
substitution in protest cases as similarly controlling in this case, the
intervenors would have been denied the right to substitute the
deceased Lanot, following the latest precedent on that issue, Poe v.
Arroyo. The Court as the Presidential Electoral Tribunal held
therein:
Let us further assume, for the sake of argument, that Lanot had not
died but that he had opted not to assail the challenged rulings of the
COMELEC. Benavides and Raymundo, desirous to see Eusebio
disqualified even though they had not participated in the
disqualification case, filed the petition for certiorari assailing the
COMELEC rulings. Such a course of action is instinctively awry,
Benavides and Raymundo clearly not having standing to challenge
the COMELEC rulings. Yet following Justice Carpios opinions
reasoning, Benavides and Raymundo would actually be authorized
to file and litigate the certiorari petition before this Court. After all,
Justice Carpios opinion makes it clear that the only requisites for
intervention in a petition for disqualification are that the intervenors
are citizens of voting age or a duly registered party, organization or
coalition of political parties, and that no final judgment has yet been
rendered.
LAW ON ELECTION
50
Rule 3, Section 16 is the rule on substitution in the Rules of Court.

This rule allows substitution by a legal representative.1wphi1 It can
be gleaned from the citation of this rule that movant/intervenor
seeks to appear before this Tribunal as the legal
representative/substitute of the late protestant prescribed by said
Section 16. However, in our application of this rule to an election
contest, we have every time ruled that a public office is personal to
the public officer and not a property transmissible to the heirs upon
death. Thus, we consistently rejected substitution by the widow or
the heirs in election contests where the protestant dies during the
pendency of the protest. In Vda. de De Mesa v. Mencias, we
recognized substitution upon the death of the protestee but denied
substitution by the widow or heirs since they are not the real parties
in interest. Similarly, in the later case of De la Victoria v.
Commission on Elections, we struck down the claim of the
surviving spouse and children of the protestee to the contested office
for the same reason. Even in analogous cases before other electoral
tribunals, involving substitution by the widow of a deceased
protestant, in cases where the widow is not a real party in interest,
we denied substitution by the wife or heirs.
considering that if the protest succeeds and the protestee is unseated,

the vice-mayor succeeds to the office of the mayor that becomes
vacant if the one duly elected cannot assume office. In contrast,
herein movant/intervenor, Mrs. FPJ, herself denies any claim to the
august office of President. Thus, given the circumstances of this
case, we can conclude that protestant's widow is not a real party in
interest to this election protest.
Could Raymundo or Benavides be considered as "real parties in
interest", conformably to the standard set by the Court in actions for
substitution in election protests? No. Raymundo was not even a
candidate in the 2004 elections. While Benavides ran and lost for
mayor in the said election, neither would she possess the legal
interest required for substitution in election protest cases, as she
would not succeed into office should Eusebio be disqualified.
Ultimately, De Mesa, Lomugdang and Poe are irrelevant to this case,
as they involve election protests and not disqualification cases. As
the ponente would say, the interests that lie in disqualification cases,
which extend to the prevention of an unqualified candidate from
sitting in office, are consequential enough that any voter or political
party or organization is allowed to file a petition for disqualification.
Granted. However, should it necessarily mean that there should be
no limits as to when petitions for disqualification may in effect be
revived or given new life through intervention?
This is not to say that death of the protestant necessarily abates the
pending action. We have held as early as Vda. de De Mesa (1966)
that while the right to a public office is personal and exclusive to the
public officer, an election protest is not purely personal and
exclusive to the protestant or to the protestee such that the death of
either would oust the court of all authority to continue the protest
proceedings. Hence, we have allowed substitution and intervention
but only by a real party in interest. A real party in interest is the
party who would be benefited or injured by the judgment, and the
party who is entitled to the avails of the suit. In Vda. de De Mesa v.
Mencias and Lomugdang v. Javier, we permitted substitution by the
vice-mayor since the vice-mayor is a real party in interest
LAW ON ELECTION
Finally, I find it distressing that Justice Carpios opinion, in

resolving the petition on the merits in favor of Eusebio, has also
chosen to preclude the continuation of any criminal action against
Eusebio, concluding as it does that no election offense was
committed by the respondent. The matters elevated for review
before the Court concerned the electoral aspect of a petition for
disqualification under Section 80 of the Omnibus Election Code.
51
Such petition has two aspects the electoral aspect and the criminal
aspect. The electoral aspect pertains to whether the candidate should
be disqualified from the election, while the criminal aspect is
concerned whether the same candidate is guilty of an election
offense.
There is a public interest in seeing that candidates who commit

election offenses which also constitute grounds for disqualification,
are accordingly penalized and disqualified from office. I submit that
this interest may be protected in the criminal aspect of the
corresponding petition for disqualification. Unlike in the electoral
aspect wherein it is the individual petitioners who have legal interest
in maintaining the suit, it is the COMELEC itself which has the
legal interest to pursue the criminal aspect, as it is the poll body
which has exclusive power to investigate and to prosecute election
offenses. Should the petitioners die or withdraw from the petition for
disqualification, the COMELEC may still pursue the criminal
aspect. If the candidate in question is found guilty of the election
offense, he may be removed from office as a result, as well as face
the corresponding jail term.
The distinction between the electoral and criminal aspects bear

pointing out. There are different parties-in-interest who are
capacitated to file suit regarding the electoral aspect, as opposed to
the criminal aspect. Section 2, Rule 25 of the COMELEC Rules of
Procedure authorizes "any citizen of voting age, or duly registered
political party, organization or coalition of political parties" in filing
a petition for disqualification. On the other hand, under Section 1,
Rule 34 of the COMELEC Rules of Procedure, it is the COMELEC
which has "the exclusive power to conduct preliminary investigation
of all election offenses punishable under the election laws and to
prosecute the same"10Further, while election offenses prescribe in
five (5) years after their commission, 11 the petition for
disqualification must be filed "any day after the last day for filing of
certificates of candidacy but not later than the date of
proclamation."12
The COMELEC in this case did observe that the evidence was
strong that respondent Eusebio was guilty of committing election
offenses.13 It is unfortunate that Justice Carpios opinion, in deciding
the petition on the merits, has arrived at the contrary conclusion that
"Eusebio clearly did not violate Section 80 of the Omnibus Election
Code," and thus precluding further investigation or prosecution of
Eusebio. This conclusion was needlessly arrived at since the death
of Lanot should have already mooted the petition for
disqualification without prejudice to the right of the Comelec to
investigate or prosecute Eusebio for election offenses.
Both the electoral and the criminal aspects come to fore in this case.
The pending legal incidents were initiated by a petition for
disqualification filed by Lanot and four other candidates in the 2004
Pasig City elections. Subsequently, the COMELEC initiated an
investigation as to whether respondent Eusebio should be charged
with an election offense. Notably, the COMELEC has yet to find
cause to discharge Eusebio of his possible criminal liability for
committing an election offense. I submit that by dismissing the
present petition on the ground of mootness, the COMELEC would
retain the power and the duty to ascertain whether Eusebio may
indeed be criminally liable.
LAW ON ELECTION
I VOTE to DISMISS the petition, it having become moot and

academic.
DANTE O. TINGA
Associate Justice
52
Lanot v. COMELEC G.R. No. 164858, November 16, 2006
FACTS
Petitioners filed a petition for disqualification under Sections 68 and 80 of
the Omnibus Election Code against Eusebio before the COMELEC stating
that the latter engaged in an election campaign in various forms on various
occasions outside of the designated campaign period, such as (1)
addressing a large group of people during a medical mission sponsored by
the Pasig City government; (2) uttering defamatory statements against
Lanot; (3)causing the publication of a press release predicting his victory
(4) installing billboards, streamers, posters, and stickers printed with his
surname across Pasig City; and (5) distributing shoes to school children in
Pasig public schools to induce their parents to vote for him, Eusebio won
the election and an$ other complaints was dismissed by the COMELEC,
ISSUE
Whether or not there is a pre/campaign offense committed by Eusebio,

SUPREME COURT
Manila
RULING
There is no dispute that Eusebios acts of election campaigning or partisan
political activities were committed outside of the campaign period. The
only question is whether Eusebio, who filed his certificate of candidacy on
29 December 2003 was a candidate when he committed those acts
before the start of the campaign period on 24 March 2004. Under Section
11 of RA 843, Eusebio became a candidate for purposes of Section 80 of
the Omnibus Election Code, only on 23 March 2004, the last day for filing
certificates of candidacy. Applying the facts - as found by director Ladra
and affirmed by the COMELEC First Division - to Section 11 of RA 8346,
Eusebio clearly did not violate Section 80 of the Omnibus Election Code
which requires the existence of a candidate, one who has filed his
certificate of candidacy, during the commission of the questioned acts.
EN BANC
G.R. No. 103956 March 31, 1992
BLO UMPAR ADIONG, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
GUTIERREZ, JR., J.:
LAW ON ELECTION
53
The specific issue in this petition is whether or not the Commission

on Elections (COMELEC) may prohibit the posting of decals and
stickers on "mobile" places, public or private, and limit their
location or publication to the authorized posting areas that it fixes.
or stationary, except in the COMELEC common posted areas and/or

billboards, at the campaign headquarters of the candidate or political
party, organization or coalition, or at the candidate's own residential
house or one of his residential houses, if he has more than one:
Provided, that such posters or election propaganda shall not exceed
two (2) feet by three (3) feet in size. (Emphasis supplied)
On January 13, 1992, the COMELEC promulgated Resolution No.

2347 pursuant to its powers granted by the Constitution, the
Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and
other election laws.
xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are
Section 82 of the Omnibus Election Code on lawful election
propaganda which provides:
Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. The following are lawful
election propaganda:
Lawful election propaganda. Lawful election propaganda shall

include:
(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed

letters, or other written or printed materials not more than eight and
one-half (8-1/2) inches in width and fourteen (14) inches in length.
Provided, That decals and stickers may be posted only in any of the
authorized posting areasprovided in paragraph (f) of Section 21
hereof.
(a) Pamphlets, leaflets, cards, decals, stickers or other written or

printed materials of a size not more than eight and one-half inches in
width and fourteen inches in length;
(b) Handwritten or printed letters urging voters to vote for or against
any particular candidate;
Section 21 (f) of the same resolution provides:

(c) Cloth, paper or cardboard posters, whether framed or posted,
with an area not exceeding two feet by three feet, except that, at the
site and on the occasion of a public meeting or rally, or in
announcing the holding of said meeting or rally, streamers not
exceeding three feet by eight feet in size, shall be allowed: Provided,
That said streamers may not be displayed except one week before
the date of the meeting or rally and that it shall be removed within
seventy-two hours after said meeting or rally; or
Sec. 21(f). Prohibited forms of election propaganda.

It is unlawful:
xxx xxx xxx
(f) To draw, paint, inscribe, post, display or publicly exhibit any
election propaganda in any place, whether public or private, mobile
LAW ON ELECTION
(d) All other forms of election propaganda not prohibited by this

54
Code as the Commission may authorize after due notice to all

interested parties and hearing where all the interested parties were
given an equal opportunity to be heard: Provided, That the
Commission's authorization shall be published in two newspapers of
general circulation throughout the nation for at least twice within
one week after the authorization has been granted. (Section 37, 1978
EC)
advertisements, he, being a neophyte in the field of politics stands to

suffer grave and irreparable injury with this prohibition. The posting
of decals and stickers on cars and other moving vehicles would be
his last medium to inform the electorate that he is a senatorial
candidate in the May 11, 1992 elections. Finally, the petitioner states
that as of February 22, 1992 (the date of the petition) he has not
received any notice from any of the Election Registrars in the entire
country as to the location of the supposed "Comelec Poster Areas."
and Section 11(a) of Republic Act No. 6646 which provides:

The petition is impressed with merit. The COMELEC's prohibition
on posting of decals and stickers on "mobile" places whether public
or private except in designated areas provided for by the COMELEC
itself is null and void on constitutional grounds.
Prohibited Forms of Election Propaganda. In addition to the

forms of election propaganda prohibited under Section 85 of Batas
Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe,
write, post, display or publicly exhibit any election propaganda in
any place, whether private, or public, except in the common poster
areas and/or billboards provided in the immediately preceding
section, at the candidate's own residence, or at the campaign
headquarters of the candidate or political party: Provided, That such
posters or election propaganda shall in no case exceed two (2) feet
by three (3) feet in area: Provided, Further, That at the site of and on
the occasion of a public meeting or rally, streamers, not more than
two (2) and not exceeding three (3) feet by eight (8) feet each may
be displayed five (5) days before the date of the meeting or rally,
and shall be removed within twenty-four (24) hours after said
meeting or rally; . . . (Emphasis supplied)
First the prohibition unduly infringes on the citizen's fundamental

right of free speech enshrined in the Constitution (Sec. 4, Article
III). There is no public interest substantial enough to warrant the
kind of restriction involved in this case.
There are various concepts surrounding the freedom of speech
clause which we have adopted as part and parcel of our own Bill of
Rights provision on this basic freedom.
All of the protections expressed in the Bill of Rights are important
but we have accorded to free speech the status of a preferred
freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945];
Mutuc v. Commission on Elections, 36 SCRA 228 [1970])
Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11,

1992 elections now assails the COMELEC's Resolution insofar as it
prohibits the posting of decals and stickers in "mobile" places like
cars and other moving vehicles. According to him such prohibition
is violative of Section 82 of the Omnibus Election Code and Section
11(a) of Republic Act No. 6646. In addition, the petitioner believes
that with the ban on radio, television and print political
LAW ON ELECTION
This qualitative significance of freedom of expression arises from

the fact that it is the matrix, the indispensable condition of nearly
every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937];
Salonga v. Pao, 134 SCRA 438 [1985]) It is difficult to imagine
how the other provisions of the Bill of Rights and the right to free
55
elections may be guaranteed if the freedom to speak and to convince

or persuade is denied and taken away.
Sec. 4. The Commission may, during the election period supervise

or regulate the enjoyment or utilization of all franchises or permits
for the operation of transportation and other public utilities, media
of communication or information, all grants special privileges, or
concessions granted by the Government or any subdivision, agency,
or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and space,
and the right to reply, including reasonable equal rates therefore, for
public information campaigns and forms among candidates in
connection with the object of holding free, orderly, honest, peaceful
and credible elections. (Article IX(c) section 4)
We have adopted the principle that debate on public issues should be

uninhibited, robust, and wide open and that it may well include
vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials. (New York Times Co. v. Sullivan,
376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion
of then Chief Justice Enrique Fernando in Babst v. National
Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions
will deny to people the robust, uninhibited, and wide open debate,
the generating of interest essential if our elections will truly be free,
clean and honest.
The variety of opinions expressed by the members of this Court in

the recent case of National Press Club v. Commission on Elections
(G.R. No. 102653, March 5, 1991) and its companion cases
underscores how difficult it is to draw a dividing line between
permissible regulation of election campaign activities and
indefensible repression committed in the name of free and honest
elections. In the National Press Club, case, the Court had occasion
to reiterate the preferred status of freedom of expression even as it
validated COMELEC regulation of campaigns through political
advertisements. The gray area is rather wide and we have to go on a
case to case basis.
We have also ruled that the preferred freedom of expression calls all
the more for the utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally
vital right of suffrage. (Mutuc v. Commission on Elections, supra)
The determination of the limits of the Government's power to
regulate the exercise by a citizen of his basic freedoms in order to
promote fundamental public interests or policy objectives is always
a difficult and delicate task. The so-called balancing of interests
individual freedom on one hand and substantial public interests on
the other is made even more difficult in election campaign cases
because the Constitution also gives specific authority to the
Commission on Elections to supervise the conduct of free, honest,
and orderly elections.
There is another problem involved. Considering that the period of

legitimate campaign activity is fairly limited and, in the opinion of
some, too short, it becomes obvious that unduly restrictive
regulations may prove unfair to affected parties and the electorate.
We recognize the fact that under the Constitution, the COMELEC

during the election period is granted regulatory powers vis-a-vis the
conduct and manner of elections, to wit:
LAW ON ELECTION
For persons who have to resort to judicial action to strike down

requirements which they deem inequitable or oppressive, a court
case may prove to be a hollow remedy. The judicial process, by its
56
very nature, requires time for rebuttal, analysis and reflection. We

cannot act instantly on knee-jerk impulse. By the time we revoke an
unallowably restrictive regulation or ruling, time which is of the
essence to a candidate may have lapsed and irredeemable
opportunities may have been lost.
A government regulation is sufficiently justified if it is within the

constitutional power of the Government, if it furthers an important
or substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than
is essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d
672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US
789, 80 L Ed 2d 772, 104 S Ct 2118 [1984])
When faced with border line situations where freedom to speak by a

candidate or party and freedom to know on the part of the electorate
are invoked against actions intended for maintaining clean and free
elections, the police, local officials and COMELEC, should lean in
favor of freedom. For in the ultimate analysis, the freedom of the
citizen and the State's power to regulate are not antagonistic. There
can be no free and honest elections if in the efforts to maintain them,
the freedom to speak and the right to know are unduly curtailed.
The posting of decals and stickers in mobile places like cars and
other moving vehicles does not endanger any substantial
government interest. There is no clear public interest threatened by
such activity so as to justify the curtailment of the cherished citizen's
right of free speech and expression. Under the clear and present
danger rule not only must the danger be patently clear and
pressingly present but the evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a writing
instrument to be stilled:
There were a variety of opinions expressed in the National Press

Club v. Commission on Elections (supra) case but all of us were
unanimous that regulation of election activity has its limits. We
examine the limits of regulation and not the limits of free speech.
The carefully worded opinion of the Court, through Mr. Justice
Feliciano, shows that regulation of election campaign activity may
not pass the test of validity if it is too general in its terms or not
limited in time and scope in its application, if it restricts one's
expression of belief in a candidate or one's opinion of his or her
qualifications, if it cuts off the flow of media reporting, and if the
regulatory measure bears no clear and reasonable nexus with the
constitutionally sanctioned objective.
The case confronts us again with the duty our system places on the
Court to say where the individual's freedom ends and the State's
power begins. Choice on that border, now as always delicate, is
perhaps more so where the usual presumption supporting legislation
is balanced by the preferred place given in our scheme to the great,
the indispensable democratic freedom secured by the first
Amendment . . . That priority gives these liberties a sanctity and a
sanction not permitting dubious intrusions and it is the character of
the right, not of the limitation, which determines what standard
governs the choice . . .
Even as the Court sustained the regulation of political

advertisements, with some rather strong dissents, inNational Press
Club, we find the regulation in the present case of a different
category. The promotion of a substantial Government interest is not
clearly shown.
LAW ON ELECTION
For these reasons any attempt to restrict those liberties must be

justified by clear public interest, threatened not doubtfully or
remotely, but by clear and present danger. The rational connection
57
between the remedy provided and the evil to be curbed, which in

other context might support legislation against attack on due process
grounds, will not suffice. These rights rest on firmer foundation.
Accordingly, whatever occasion would restrain orderly discussion
and persuasion, at appropriate time and place, must have clear
support in public danger, actual or impending. Only the greatest
abuses, endangering permanent interests, give occasion for
permissible limitation. (Thomas V. Collins, 323 US 516 [1945]).
(Emphasis supplied)
thereby invade the area of protected freedoms." (Zwickler v. Koota,

19 L ed 2d 444 [1967]).
Significantly, the freedom of expression curtailed by the questioned

prohibition is not so much that of the candidate or the political party.
The regulation strikes at the freedom of an individual to express his
preference and, by displaying it on his car, to convince others to
agree with him. A sticker may be furnished by a candidate but once
the car owner agrees to have it placed on his private vehicle, the
expression becomes a statement by the owner, primarily his own and
not of anybody else. If, in the National Press Club case, the Court
was careful to rule out restrictions on reporting by newspapers or
radio and television stations and commentators or columnists as
long as these are not correctly paid-for advertisements or purchased
opinions with less reason can we sanction the prohibition against a
sincere manifestation of support and a proclamation of belief by an
individual person who pastes a sticker or decal on his private
property.
In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the

Court invalidated an ordinance prohibiting all distribution of
literature at any time or place in Griffin, Georgia, without a license,
pointing out that so broad an interference was unnecessary to
accomplish legitimate municipal aims. In Schneider v. Irvington,
308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with
ordinances of four different municipalities which either banned or
imposed prior restraints upon the distribution of handbills. In
holding the ordinances invalid, the court noted that where legislative
abridgment of fundamental personal rights and liberties is asserted,
"the courts should be astute to examine the effect of the challenged
legislation. Mere legislative preferences or beliefs respecting matters
of public convenience may well support regulation directed at other
personal activities, but be insufficient to justify such as diminishes
the exercise of rights so vital to the maintenance of democratic
institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US
296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that
"[c]onduct remains subject to regulation for the protection of
society," but pointed out that in each case "the power to regulate
must be so exercised as not, in attaining a permissible end, unduly to
infringe the protected freedom." (310 US at 304) (Shelton v. Tucker,
364 US 479 [1960]
In a series of decisions this Court has held that, even though the
governmental purpose be legitimate and substantial, that purpose
cannot be pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved. The breadth
of legislative abridgment must be viewed in the light of less drastic
means for achieving the same basic purpose.
Second the questioned prohibition premised on the statute and as

couched in the resolution is void for overbreadth.
A statute is considered void for overbreadth when "it offends the
constitutional principle that a governmental purpose to control or
prevent activities constitutionally subject to state regulations may
not be achieved by means which sweep unnecessarily broadly and
LAW ON ELECTION
58
The resolution prohibits the posting of decals and stickers not more
than eight and one-half (8-1/2) inches in width and fourteen (14)
inches in length in any place, including mobile places whether
public or private except in areas designated by the COMELEC.
Verily, the restriction as to where the decals and stickers should be
posted is so broad that it encompasses even the citizen's private
property, which in this case is a privately-owned vehicle. In
consequence of this prohibition, another cardinal rule prescribed by
the Constitution would be violated. Section 1, Article III of the Bill
of Rights provides that no person shall be deprived of his property
without due process of law:
Freedom to distribute information to every citizen wherever he

desires to receive it is so clearly vital to the preservation of a free
society that, putting aside reasonable police and health regulations
of time and manner of distribution, it must be fully preserved. The
danger of distribution can so easily be controlled by traditional legal
methods leaving to each householder the full right to decide whether
he will receive strangers as visitors, that stringent prohibition can
serve no purpose but that forbidden by the constitution, the naked
restriction of the dissemination of ideas." (Martin v. City of
Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])
The right to property may be subject to a greater degree of
regulation but when this right is joined by a "liberty" interest, the
burden of justification on the part of the Government must be
exceptionally convincing and irrefutable. The burden is not met in
this case.
Property is more than the mere thing which a person owns, it

includes the right to acquire, use, and dispose of it; and the
Constitution, in the 14th Amendment, protects these essential
attributes.
Property is more than the mere thing which a person owns. It is
elementary that it includes the right to acquire, use, and dispose of
it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct.
Rep. 383. Property consists of the free use, enjoyment, and disposal
of a person's acquisitions without control or diminution save by the
law of the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245
US 60 [1917])
Section 11 of Rep. Act 6646 is so encompassing and invasive that it

prohibits the posting or display of election propaganda in any place,
whether public or private, except in the common poster areas
sanctioned by COMELEC. This means that a private person cannot
post his own crudely prepared personal poster on his own front door
or on a post in his yard. While the COMELEC will certainly never
require the absurd, there are no limits to what overzealous and
partisan police officers, armed with a copy of the statute or
regulation, may do.
As earlier stated, we have to consider the fact that in the posting of

decals and stickers on cars and other moving vehicles, the candidate
needs the consent of the owner of the vehicle. In such a case, the
prohibition would not only deprive the owner who consents to such
posting of the decals and stickers the use of his property but more
important, in the process, it would deprive the citizen of his right to
free speech and information:
LAW ON ELECTION
The provisions allowing regulation are so loosely worded that they

include the posting of decals or stickers in the privacy of one's living
room or bedroom. This is delegation running riot. As stated by
Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan
(293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is
unconfined and vagrant . . . This is delegation running riot. No such
59
plentitude of power is susceptible of transfer."
In sum, the prohibition on posting of decals and stickers on "mobile"

places whether public or private except in the authorized areas
designated by the COMELEC becomes censorship which cannot be
justified by the Constitution:
Third the constitutional objective to give a rich candidate and a

poor candidate equal opportunity to inform the electorate as regards
their candidacies, mandated by Article II, Section 26 and Article
XIII, section 1 in relation to Article IX (c) Section 4 of the
Constitution, is not impaired by posting decals and stickers on cars
and other private vehicles. Compared to the paramount interest of
the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance.
. . . The concept of the Constitution as the fundamental law, setting

forth the criterion for the validity of any public act whether
proceeding from the highest official or the lowest functionary, is a
postulate of our system of government. That is to manifest fealty to
the rule of law, with priority accorded to that which occupies the
topmost rung in the legal hierarchy. The three departments of
government in the discharge of the functions with which it is
entrusted have no choice but to yield obedience to its commands.
Whatever limits it imposes must be observed. Congress in the
enactment of statutes must ever be on guard lest the restrictions on
its authority, either substantive or formal, be transcended. The
Presidency in the execution of the laws cannot ignore or disregard
what it ordains. In its task of applying the law to the facts as found
in deciding cases, the judiciary is called upon to maintain inviolate
what is decreed by the fundamental law. Even its power of judicial
review to pass upon the validity of the acts of the coordinate
branches in the course of adjudication is a logical. corollary of this
basic principle that the Constitution is paramount. It overrides any
governmental measure that fails to live up to its mandates. Thereby
there is a recognition of its being the supreme law. (Mutuc v.
Commission on Elections, supra)
Under section 26 Article II of the Constitution, "The State shall

guarantee equal access to opportunities for public service, . . . while
under section 1, Article XIII thereof "The Congress shall give
highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social,
economic, andpolitical inequalities, and remove cultural inequities
by equitably diffusing wealth and political power for the common
good." (Emphasis supplied)
It is to be reiterated that the posting of decals and stickers on cars,
calesas, tricycles, pedicabs and other moving vehicles needs the
consent of the owner of the vehicle. Hence, the preference of the
citizen becomes crucial in this kind of election propaganda not the
financial resources of the candidate. Whether the candidate is rich
and, therefore, can afford to doleout more decals and stickers or
poor and without the means to spread out the same number of decals
and stickers is not as important as the right of the owner to freely
express his choice and exercise his right of free speech. The owner
can even prepare his own decals or stickers for posting on his
personal property. To strike down this right and enjoin it is
impermissible encroachment of his liberties.
LAW ON ELECTION
The unusual circumstances of this year's national and local elections

call for a more liberal interpretation of the freedom to speak and the
right to know. It is not alone the widest possible dissemination of
information on platforms and programs which concern us. Nor are
we limiting ourselves to protecting the unfettered interchange of
ideas to bring about political change. (Cf. New York Times v.
60
Sullivan, supra) The big number of candidates and elective positions

involved has resulted in the peculiar situation where almost all
voters cannot name half or even two-thirds of the candidates running
for Senator. The public does not know who are aspiring to be elected
to public office.
I join Mr. Justice Gutierrez and reiterate the views expressed in my

dissent in National Press Club v. Commission on Elections. The
stand taken by the Court in the case at bar is a refreshing change
from its usual deferential attitude toward authoritarianism as a
persistent vestige of the past regime. After the disappointing
decision in the ad ban case, I hope that the present decision will
guide us to the opposite direction, toward liberty and the full
recognition of freedom of expression. This decision is a small step
in rectifying the errors of the past, but it is a step just the same, and
on the right track this time.
There are many candidates whose names alone evoke qualifications,

platforms, programs and ideologies which the voter may accept or
reject. When a person attaches a sticker with such a candidate's
name on his car bumper, he is expressing more than the name; he is
espousing ideas. Our review of the validity of the challenged
regulation includes its effects in today's particular circumstances.
We are constrained to rule against the COMELEC prohibition.
Regarding the sticker ban, I think we are being swamped with

regulations that unduly obstruct the free flow of information so vital
in an election campaign. The Commission on Elections seems to be
bent on muzzling the candidates and imposing all manner of silly
restraints on their efforts to reach the electorate. Reaching the
electorate is precisely the purpose of an election campaign, but the
Commission on Elections obviously believes that the candidates
should be as quiet as possible.
WHEREFORE, the petition is hereby GRANTED. The portion of

Section 15 (a) of Resolution No. 2347 of the Commission on
Elections providing that "decals and stickers may be posted only in
any of the authorized posting areas provided in paragraph (f) of
Section 21 hereof" is DECLARED NULL and VOID.
Instead of limiting the dissemination of information on the election

issues and the qualifications of those vying for public office, what
the Commission on Elections should concentrate on is the education
of the voters on the proper exercise of their suffrages. This function
is part of its constitutional duty to supervise and regulate elections
and to prevent them from deteriorating into popularity contests
where the victors are chosen on the basis not of their platforms and
competence but on their ability to sing or dance, or play a musical
instrument, or shoot a basketball, or crack a toilet joke, or exhibit
some such dubious talent irrelevant to their ability to discharge a
public office. The public service is threatened with mediocrity and
indeed sheer ignorance if not stupidity. That is the problem the
Commission on Elections should try to correct instead of wasting its
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, GrioAquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, J.J.,
concur.
Feliciano and Bellosillo, JJ., are on leave.
Separate Opinions
CRUZ, J.: concurring:
LAW ON ELECTION
61
time on much trivialities as where posters shall be allowed and

stickers should not be attached and speeches may be delivered.
in an election campaign. The Commission on Elections seems to be

bent on muzzling the candidates and imposing all manner of silly
restraints on their efforts to reach the electorate. Reaching the
electorate is precisely the purpose of an election campaign, but the
Commission on Elections obviously believes that the candidates
should be as quiet as possible.
The real threat in the present election is the influx of the unqualified
professional entertainers whose only asset is the support of their
drooling fans, the demagogues who drumbeat to the clink of coins
their professed present virtues and past innocence, the opportunists
for whom flexibility is a means of political survival and even of
financial gain, and, most dangerous of all, the elements of our
electorate who would, with their mindless ballots, impose these
office-seekers upon the nation. These are the evils the Commission
on Elections should try to correct, not the inconsequential and inane
question of where stickers should be stuck. I have nothing but praise
for the zeal of the Commission on Elections in pursuing the ideal of
democratic elections, but I am afraid it is barking up the wrong tree.
Instead of limiting the dissemination of information on the election

issues and the qualifications of those vying for public office, what
the Commission on Elections should concentrate on is the education
of the voters on the proper exercise of their suffrages. This function
is part of its constitutional duty to supervise and regulate elections
and to prevent them from deteriorating into popularity contests
where the victors are chosen on the basis not of their platforms and
competence but on their ability to sing or dance, or play a musical
instrument, or shoot a basketball, or crack a toilet joke, or exhibit
some such dubious talent irrelevant to their ability to discharge a
public office. The public service is threatened with mediocrity and
indeed sheer ignorance if not stupidity. That is the problem the
Commission on Elections should try to correct instead of wasting its
time on much trivialities as where posters shall be allowed and
stickers should not be attached and speeches may be delivered.
Separate Opinions
CRUZ, J., concurring:
I join Mr. Justice Gutierrez and reiterate the views expressed in my
dissent in National Press Club v. Commission on Elections. The
stand taken by the Court in the case at bar is a refreshing change
from its usual deferential attitude toward authoritarianism as a
persistent vestige of the past regime. After the disappointing
decision in the ad ban case, I hope that the present decision will
guide us to the opposite direction, toward liberty and the full
recognition of freedom of expression. This decision is a small step
in rectifying the errors of the past, but it is a step just the same, and
on the right track this time.
The real threat in the present election is the influx of the unqualified
professional entertainers whose only asset is the support of their
drooling fans, the demagogues who drumbeat to the clink of coins
their professed present virtues and past innocence, the opportunists
for whom flexibility is a means of political survival and even of
financial gain, and, most dangerous of all, the elements of our
electorate who would, with their mindless ballots, impose these
office-seekers upon the nation. These are the evils the Commission
on Elections should try to correct, not the inconsequential and inane
question of where stickers should be stuck. I have nothing but praise
Regarding the sticker ban, I think we are being swamped with

regulations that unduly obstruct the free flow of information so vital
LAW ON ELECTION
62
for the zeal of the Commission on Elections in pursuing the ideal of

democratic elections, but I am afraid it is barking up the wrong tree.
Whether or not Comelec Resolution No. 2772 is unconstitutional.

Held: The Supreme Court declared the Resolution as
unconstitutional. It held that to compel print media companies to
donate Comelec space amounts to taking of private personal
property without payment of the just compensation required in
expropriation cases. Moreover, the element of necessity for the
taking has not been established by respondent Comelec, considering
that the newspapers were not unwilling to sell advertising space. The
taking of private property for public use is authorized by the
constitution, but not without payment of just compensation. Also
Resolution No. 2772 does not constitute a valid exercise of the
police power of the state. In the case at bench, there is no showing
of existence of a national emergency to take private property of
newspaper or magazine publishers.
PHILIPPINE PRESS INSTITUTE VS. COMELEC [244 SCRA

272; G.R. No. 119694; 22 May 1995]
Facts: Respondent Comelec promulgated Resolution No. 2772
directing newspapers to provide free Comelec space of not less than
one-half page for the common use of political parties and
candidates. The Comelec space shall be allocated by the
Commission, free of charge, among all candidates to enable them to
make known their qualifications, their stand on public Issue and
their platforms of government. The Comelec space shall also be
used by the Commission for dissemination of vital election
information.
Petitioner Philippine Press Institute, Inc. (PPI), a non-profit
organization of newspaper and magazine publishers, asks the
Supreme Court to declare Comelec Resolution No. 2772
unconstitutional and void on the ground that it violates the
prohibition imposed by the Constitution upon the government
against the taking of private property for public use without
justcompensation. On behalf of the respondent Comelec, the
Solicitor General claimed that the Resolution is a permissible
exercise of the power of supervision (police power) of the Comelec
over the information operations of print media enterprises during the
election period to safeguard and ensure a fair, impartial and credible
election.
Issue:
LAW ON ELECTION
63
assailing the constitutional validity of Resolution No. 2772 issued

by respondent Commission on Elections ("Comelec") and its
corresponding Comelec directive dated 22 March 1995, through a
Petition for Certiorari and Prohibition. Petitioner PPI is a non-stock,
non-profit organization of newspaper and magazine publishers.
On 2 March 1995, Comelec promulgated Resolution No. 2772,
which reads in part:
xxx xxx xxx
Sec. 2. Comelec Space. The Commission shall procure free print
space of not less than one half (1/2) page in at least one newspaper
of general circulation in every province or city for use as "Comelec
Space" from March 6, 1995 in the case of candidates for senator and
from March 21, 1995 until May 12, 1995. In the absence of said
newspaper, "Comelec Space" shall be obtained from any magazine
or periodical of said province or city.

SUPREME COURT
Manila
EN BANC
Sec. 3. Uses of Comelec Space. "Comelec Space" shall be

allocated by the Commission, free of charge, among all candidates
within the area in which the newspaper, magazine or periodical is
circulated to enable the candidates to make known their
qualifications, their stand on public issues and their platforms and
programs of government.
G.R. No. L-119694 May 22, 1995

PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of
139 members, represented by its President, Amado P. Macasaet
and its Executive Director Ermin F. Garcia, Jr., petitioner,
vs.
"Comelec Space" shall also be used by the Commission for

dissemination of vital election information.
RESOLUTION
Sec. 4. Allocation of Comelec Space. (a) "Comelec Space" shall

also be available to all candidatesduring the periods stated in
Section 2 hereof. Its allocation shall be equal and impartial among
all candidates for the same office. All candidates concerned shall be
FELICIANO, J.:
The Philippine Press Institute, Inc. ("PPI") is before this Court
LAW ON ELECTION
64
furnished a copy of the allocation of "Comelec Space" for their

information, guidance and compliance.
of the newspaper or publication accounts or comments which

manifestly favor or oppose any candidate or political party by
unduly or repeatedly referring to or including therein said candidate
or political party. However, unless the facts and circumstances
clearly indicate otherwise, the Commission will respect the
determination by the publisher and/or editors of the newspapers or
publications that the accounts or views published are significant,
newsworthy and of public interest. (Emphasis supplied)
(b) Any candidate desiring to avail himself of "Comelec Space"

from newspapers or publications based in the Metropolitan Manila
Area shall submit an application therefor, in writing, to the
Committee on Mass Media of the Commission. Any candidate
desiring to avail himself of "Comelec Space" in newspapers or
publications based in the provinces shall submit his application
therefor, in writing, to the Provincial Election Supervisor concerned.
Applications for availment of "Comelec Space" maybe filed at any
time from the date of effectivity of this Resolution.
Apparently in implementation of this Resolution, Comelec through

Commissioner Regalado E. Maambong sent identical letters, dated
22 March 1995, to various publishers of newspapers like the
Business World, the Philippine Star, the Malaya and the Philippine
Times Journal, all members of PPI. These letters read as follows:
(c) The Committee on Mass Media and the Provincial Election

Supervisors shall allocate available"Comelec Space" among the
candidates concerned by lottery of which said candidates shall be
notified in advance, in writing, to be present personally or by
representative to witness the lottery at the date, time and place
specified in the notice. Any party objecting to the result of the
lottery may appeal to the Commission.
This is to advise you that pursuant to Resolution No. 2772 of the

Commission on Elections, you aredirected to provide free print
space of not less than one half (1/2) page for use as "Comelec
Space"or similar to the print support which you have extended
during the May 11, 1992 synchronized elections which was 2 full
pages for each political party fielding senatorial candidates, from
March 6, 1995 to May 6, 1995, to make known their qualifications,
their stand on public issues and their platforms and programs of
government.
(d) The candidates concerned shall be notified by the Committee on

Mass Media or the Provincial Election Supervisor, as the case
maybe, sufficiently in advance and in writing of the date of issue
and the newspaper or publication allocated to him, and the time
within which he must submit the written material for publication in
the "Comelec Space".
xxx xxx xxx
We shall be informing the political parties and candidates to submit

directly to you their pictures, biographical data, stand on key public
issues and platforms of government either as raw data or in the form
of positives or camera-ready materials.
Sec. 8. Undue Reference to Candidates/Political Parties in

Newspapers. No newspaper or publication shall allow to be
printed or published in the news, opinion, features, or other sections
Please be reminded that the political parties/candidates may be

accommodated in your publication any day upon receipt of their
materials until May 6, 1995 which is the last day for campaigning.
LAW ON ELECTION
65
We trust you to extend your full support and cooperation in this

regard. (Emphasis supplied)
requirements for the candidate's utilization of the "Comelec space"

procured. At the same time, however, the Solicitor General argues
that even if the questioned Resolution and its implementing letter
directives are viewed as mandatory, the same would nevertheless be
valid as an exercise of the police power of the State. The Solicitor
General also maintains that Section 8 of Resolution No. 2772 is a
permissible exercise of the power of supervision or regulation of the
Comelec over the communication and information operations of
print media enterprises during the election period to safeguard and
ensure a fair, impartial and credible election. 2
In this Petition for Certiorari and Prohibition with prayer for the
issuance of a Temporary Restraining Order, PPI asks us to declare
Comelec Resolution No. 2772 unconstitutional and void on the
ground that it violates the prohibition imposed by the Constitution
upon the government, and any of its agencies, against the taking of
private property for public use without just compensation. Petitioner
also contends that the 22 March 1995 letter directives of Comelec
requiring publishers to give free "Comelec Space" and at the same
time process raw data to make it camera-ready, constitute
impositions of involuntary servitude, contrary to the provisions of
Section 18 (2), Article III of the 1987 Constitution. Finally, PPI
argues that Section 8 of Comelec Resolution No. 2772 is violative of
the constitutionally guaranteed freedom of speech, of the press and
of expression. 1
At the oral hearing of this case held on 28 April 1995, respondent

Comelec through its Chairman, Hon. Bernardo Pardo, in response to
inquiries from the Chief Justice and other Members of the Court,
stated that Resolution No. 2772, particularly Section 2 thereof and
the 22 March 1995 letters dispatched to various members of
petitioner PPI, were not intended to compel those members to
supply Comelec with free print space. Chairman Pardo represented
to the Court that Resolution and the related letter-directives were
merely designed to solicit from the publishers the same free print
space which many publishers had voluntarily given to Comelec
during the election period relating to the 11 May 1992 elections.
Indeed, the Chairman stated that the Comelec would, that very
afternoon, meet and adopt an appropriate amending or clarifying
resolution, a certified true copy of which would forthwith be filed
with the Court.
On 20 April 1995, this Court issued a Temporary Restraining Order

enjoining Comelec from enforcing and implementing Section 2 of
Resolution No. 2772, as well as the Comelec directives addressed to
various print media enterprises all dated 22 March 1995. The Court
also required the respondent to file a Comment on the Petition.
The Office of the Solicitor General filed its Comment on behalf of
respondent Comelec alleging that Comelec Resolution No. 2772
does not impose upon the publishers any obligation to provide free
print space in the newspapers as it does not provide any criminal or
administrative sanction for non-compliance with that Resolution.
According to the Solicitor General, the questioned Resolution
merely established guidelines to be followed in connection with the
procurement of "Comelec space," the procedure for and mode of
allocation of such space to candidates and the conditions or
LAW ON ELECTION
On 5 May 1995, the Court received from the Office of the Solicitor
General a manifestation which attached a copy of Comelec
Resolution No. 2772-A dated 4 May 1995. The operative portion of
this Resolution follows:
NOW THEREFORE, pursuant to the powers vested in it by the
66
Constitution, the Omnibus Election Code, Republic Acts No. 6646

and 7166 and other election laws, the Commission on Elections
RESOLVED to clarify Sections 2 and 8 of Res. No. 2772 as follows:
expression. Section 1 of Resolution No. 2772-A did not try to redraft

Section 2; accordingly, Section 2 of Resolution No. 2772 persists in
its original form. Thus, we must point out that, as presently worded,
and in particular as interpreted and applied by the Comelec itself in
its 22 March 1995 letter-directives to newspaper publishers, Section
2 of Resolution No. 2772 is clearly susceptible of the reading that
petitioner PPI has given it. That Resolution No. 2772 does not, in
express terms, threaten publishers who would disregard it or its
implementing letters with some criminal or other sanction, does not
by itself demonstrate that the Comelec's original intention was
simply to solicit or request voluntary donations of print space from
publishers. A written communication officially directing a print
media company to supply free print space, dispatched by a
government (here a constitutional) agency and signed by a member
of the Commission presumably legally authorized to do so, is bound
to produce a coercive effect upon the company so addressed. That
the agency may not be legally authorized to impose, or cause the
imposition of, criminal or other sanctions for disregard of such
directions, only aggravates the constitutional difficulties inhearing in
the present situation. The enactment or addition of such sanctions by
the legislative authority itself would be open to serious
constitutional objection.
1. Section 2 of Res. No. 2772 shall not be construed to mean as

requiring publishers of the different mass media print publications to
provide print space under pain of prosecution, whether
administrative, civil or criminal, there being no sanction or penalty
for violation of said Section provided for either in said Resolution or
in Section 90 of Batas Pambansa Blg. 881, otherwise known as the
Omnibus Election Code, on the grant of "Comelec space."
2. Section 8 of Res. No. 2772 shall not be construed to mean as
constituting prior restraint on the part of publishers with respect to
the printing or publication of materials in the news, opinion, features
or other sections of their respective publications or other accounts or
comments, it being clear from the last sentence of said Section 8 that
the Commission shall, "unless the facts and circumstances clearly
indicate otherwise . . .respect the determination by the publisher
and/or editors of the newspapers or publications that the accounts
or views published are significant, newsworthy and of public
interest."
To compel print media companies to donate "Comelec-space" of the

dimensions specified in Section 2 of Resolution No. 2772 (not less
than one-half page), amounts to "taking" of private personal
property for public use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:" only once
during the period from 6 March 1995 (or 21 March 1995) until 12
May 1995? or everyday or once a week? or as often as Comelec may
direct during the same period? The extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimis
temporary limitation or restraint upon the use of private property.
This Resolution shall take effect upon approval. (Emphasis in the

original)
While, at this point, the Court could perhaps simply dismiss the
Petition for Certiorari and Prohibition as having become moot and
academic, we consider it not inappropriate to pass upon the first
constitutional issue raised in this case. Our hope is to put this issue
to rest and prevent its resurrection.
Section 2 of Resolution No. 2772 is not a model of clarity in
LAW ON ELECTION
67
The monetary value of the compulsory "donation," measured by the

advertising rates ordinarily charged by newspaper publishers
whether in cities or in non-urban areas, may be very substantial
indeed.
circulars, notices and so forth need officially to be brought to the

attention of the general public.
The taking of print space here sought to be effected may first be

appraised under the rubric of expropriation of private personal
property for public use. The threshold requisites for a lawful taking
of private property for public use need to be examined here: one is
the necessity for the taking; another is the legal authority to effect
the taking. The element of necessity for the taking has not been
shown by respondent Comelec. It has not been suggested that the
members of PPI are unwilling to sell print space at their normal rates
to Comelec for election purposes. Indeed, the unwillingness or
reluctance of Comelec to buy print space lies at the heart of the
problem. 3Similarly, it has not been suggested, let alone
demonstrated, that Comelec has been granted the power of eminent
domain either by the Constitution or by the legislative authority. A
reasonable relationship between that power and the enforcement and
administration of election laws by Comelec must be shown; it is not
casually to be assumed.
The taking of private property for public use is, of course,

authorized by the Constitution, but not without payment of "just
compensation" (Article III, Section 9). And apparently the necessity
of paying compensation for "Comelec space" is precisely what is
sought to be avoided by respondent Commission, whether Section 2
of Resolution No. 2772 is read as petitioner PPI reads it, as an
assertion of authority to require newspaper publishers to "donate"
free print space for Comelec purposes, or as an exhortation, or
perhaps an appeal, to publishers to donate free print space, as
Section 1 of Resolution No. 2772-A attempts to suggest. There is
nothing at all to prevent newspaper and magazine publishers from
voluntarily giving free print space to Comelec for the purposes
contemplated in Resolution No. 2772. Section 2 of Resolution No.
2772 does not, however, provide a constitutional basis for
compelling publishers, against their will, in the kind of factual
context here present, to provide free print space for Comelec
purposes. Section 2 does not constitute a valid exercise of the power
of eminent domain.
That the taking is designed to subserve "public use" is not contested

by petitioner PPI. We note only that, under Section 3 of Resolution
No. 2772, the free "Comelec space" sought by the respondent
Commission would be used not only for informing the public about
the identities, qualifications and programs of government of
candidates for elective office but also for "dissemination of vital
election information" (including, presumably, circulars, regulations,
notices, directives, etc. issued by Comelec). It seems to the Court a
matter of judicial notice that government offices and agencies
(including the Supreme Court) simply purchase print space, in the
ordinary course of events, when their rules and regulations,
We would note that the ruling here laid down by the Court is entirely
in line with the theory of democratic representative government. The
economic costs of informing the general public about the
qualifications and programs of those seeking elective office are most
appropriately distributed as widely as possible throughout our
society by the utilization of public funds, especially funds raised by
taxation, rather than cast solely on one small sector of society, i.e.,
print media enterprises. The benefits which flow from a heightened
level of information on and the awareness of the electoral process
are commonly thought to be community-wide; the burdens should
be allocated on the same basis.
LAW ON ELECTION
68
As earlier noted, the Solicitor General also contended that Section 2

of Resolution No. 2772, even if read as compelling publishers to
"donate" "Comelec space, " may be sustained as a valid exercise of
the police power of the state. This argument was, however, made too
casually to require prolonged consideration on our part. Firstly, there
was no effort (and apparently no inclination on the part of Comelec)
to show that the police power essentially a power of legislation
has been constitutionally delegated to respondent Commission. 4
Secondly, while private property may indeed be validly taken in the
legitimate exercise of the police power of the state, there was no
attempt to show compliance in the instant case with the requisites of
a lawful taking under the police power. 5
manifestly favor or oppose any candidate or political party by

unduly or repeatedly referring to or including therein said candidate
or political party. However, unless the facts and circumstances
clearly indicate otherwise, the Commission will respect the
determination by the publisher and/or editors of the newspapers or
publications that the accounts or views published are significant,
newsworthy and of public interest.
It is not easy to understand why Section 8 was included at all in
Resolution No. 2772. In any case, Section 8 should be viewed in the
context of our decision in National Press Club v. Commission on
Elections. 6 There the Court sustained the constitutionality of
Section 11 (b) of R.A. No. 6646, known as the Electoral Reforms
Law of 1987, which prohibits the sale or donation of print space and
airtime for campaign or other political purposes, except to the
Comelec. In doing so, the Court carefully distinguished (a) paid
political advertisements which are reached by the prohibition of
Section 11 (b), from (b) the reporting of news, commentaries and
expressions of belief or opinion by reporters, broadcasters, editors,
commentators or columnists which fall outside the scope of Section
11 (b) and which are protected by the constitutional guarantees of
freedom of speech and of the press:
Section 2 of Resolution No. 2772 is a blunt and heavy instrument

that purports, without a showing of existence of a national
emergency or other imperious public necessity, indiscriminately and
without regard to the individual business condition of particular
newspapers or magazines located in differing parts of the country, to
take private property of newspaper or magazine publishers. No
attempt was made to demonstrate that a real and palpable or urgent
necessity for the taking of print space confronted the Comelec and
that Section 2 of Resolution No. 2772 was itself the only reasonable
and calibrated response to such necessity available to the Comelec.
Section 2 does not constitute a valid exercise of the police power of
the State.
Secondly, and more importantly, Section 11 (b) is limited in its

scope of application. Analysis ofSection 11 (b) shows that it
purports to apply only to the purchase and sale, including purchase
and sale disguised as a donation, of print space and air time for
campaign or other political purposes.Section 11 (b) does not
purport in any way to restrict the reporting by newspapers or radio
ortelevision stations of news or news-worthy events relating to
candidates, their qualifications, political parties and programs of
government. Moreover, Section 11 (b) does not reach commentaries
and expressions of belief or opinion by reporters or broadcaster or
We turn to Section 8 of Resolution No. 2772, which needs to be

quoted in full again:
Sec. 8. Undue Reference to Candidates/Political Parties in
Newspapers. No newspaper or publication shall allow to be
printed or published in the news, opinion, features, or other sections
of the newspaper or publication accounts or comments which
LAW ON ELECTION
69
editors or commentators or columnists in respect of candidates,

their qualifications, and programs and so forth, so long at least as
such comments, opinions and beliefs are not in fact advertisements
for particular candidates covertly paid for. In sum, Section 11 (b) is
not to be read as reaching any report or commentary or other
coverage that, in responsible media, is not paid for by candidates for
political office. We read Section 11 (b) as designed to cover only
paid political advertisements of particular candidates.
Comelec action under Section 8. Put a little differently, the

considers that the precise constitutional issue here sought
raised whether or not Section 8 of Resolution No.
constitutes a permissible exercise of the Comelec's power
Article IX, Section 4 of the Constitution to
Court
to be
2772
under
supervise or regulate the enjoyment or utilization of all franchise or

permits for the operation of media of communication or
information [for the purpose of ensuring] equal opportunity, time
and space, and the right of reply, including reasonable, equal rates
therefore, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly
honest, peaceful and credible elections is not ripe for judicial
review for lack of an actual case or controversy involving, as the
very lis mota thereof, the constitutionality of Section 8.
The above limitation in scope of application of Section 11 (b)

that it does not restrict either the reporting of or the expression of
belief or opinion or comment upon the qualifications and programs
and activities of any and all candidates for office constitutes the
critical distinction which must be made between the instant case and
that of Sanidad v. Commission on Elections. . . . 7 (Citations omitted;
emphasis supplied)
Summarizing our conclusions:

Section 8 of Resolution No. 2772 appears to represent the effort of
the Comelec to establish a guideline for implementation of the
above-quoted distinction and doctrine in National Press Club an
effort not blessed with evident success. Section 2 of Resolution No.
2772-A while possibly helpful, does not add substantially to the
utility of Section 8 of Resolution No. 2772. The distinction between
paid political advertisements on the one hand and news reports,
commentaries and expressions of belief or opinion by reporters,
broadcasters, editors, etc. on the other hand, can realistically be
given operative meaning only in actual cases or controversies, on a
case-to-case basis, in terms of very specific sets of facts.
1. Section 2 of Resolution No. 2772, in its present form and as

interpreted by Comelec in its 22 March 1995 letter directives,
purports to require print media enterprises to "donate" free print
space to Comelec. As such, Section 2 suffers from a fatal
constitutional vice and must be set aside and nullified.
2. To the extent it pertains to Section 8 of Resolution No. 2772, the
Petition for Certiorari and Prohibition must be dismissed for lack of
an actual, justiciable case or controversy.
WHEREFORE, for all the foregoing, the Petition for Certiorari and
Prohibition is GRANTED in part and Section 2 of Resolution No.
2772 in its present form and the related letter-directives dated 22
March 1995 are hereby SET ASIDE as null and void, and the
Temporary Restraining Order is hereby MADE PERMANENT. The
At all events, the Court is bound to note that PPI has failed to allege
any specific affirmative action on the part of Comelec designed to
enforce or implement Section 8. PPI has not claimed that it or any of
its members has sustained actual or imminent injury by reason of
LAW ON ELECTION
70
of necessity for the taking has not been established by respondent

Comelec, considering that the newspapers were not unwilling to sell
advertising space. The taking of private property for public use is
authorized by the constitution, but not without payment of just
compensation. Also Resolution No. 2772 does not constitute a valid
exercise of the police power of the state. In the case at bench, there is no
showing of existence of anational emergency to take private property of
newspaper or magazine publishers.
Petition is DISMISSED in part, to the extent it relates to Section 8

of Resolution No. 2772. No pronouncement as to costs.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
Quiason, J., is on leave.
PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139 members,
represented by its President, Amado P. Macasaet and its Executive
Director Ermin F. Garcia, Jr., petitioner vs.COMMISSION ON ELECTIONS,
respondent G.R. No. L-119694 May 22, 1995
Facts: Respondent Comelec promulgated Resolution No. 2772 directing
newspapers to provide free Comelec space of not less than one-half page
for the common use of political parties and candidates. The Comelec
space shall be allocated by the Commission, free of charge, among all
candidates to enable them to make known their qualifications, their stand
on public Issue and their platforms of government. The Comelec space
shall also be used by the Commission for dissemination of vital election
information.Petitioner Philippine Press Institute, Inc. (PPI), a non-profit
organization of newspaper and magazine publishers, asks the Supreme
Court to declare Comelec Resolution No. 2772 unconstitutional and void
on the ground that it violates the prohibition imposed by the Constitution
upon the government against the taking of private property for public use
without just compensation. On behalf of the respondent Comelec,the
Solicitor General claimed that the Resolution is a permissible exercise of
the power of supervision (police power) of the Comelec over the
information operations of print media enterprises during the election period
to safeguard and ensure a fair, impartial and credible election.

SUPREME COURT
Baguio City
Issue:Whether or not Comelec Resolution No. 2772 is unconstitutional.

Held: The Supreme Court declared the Resolution as unconstitutional. It
held that to compel print media companies to donate Comelec space
amounts to taking of private personal property without payment of the
just compensation required in expropriation cases. Moreover, the element
LAW ON ELECTION
EN BANC
71
G.R. No. 132922 April 21, 1998
compensation; (2) that it denies radio and television broadcast

companies the equal protection of the laws; and (3) that it is in
excess of the power given to the COMELEC to supervise or regulate
the operation of media of communication or information during the
period of election.
TELECOMMUNICATIONS AND BROADCAST ATTORNEYS

OF THE PHILIPPINES, INC. and GMA NETWORK, INC.,
petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
The Question of Standing
MENDOZA, J.:
At the threshold of this suit is the question of standing of petitioner

Telecommunications and Broadcast Attorneys of the Philippines,
Inc. (TELEBAP). As already noted, its members assert an interest as
lawyers of radio and television broadcasting companies and as
citizens, taxpayers, and registered voters.
In Osmea v. COMELEC, G.R. No. 132231, decided March 31,

1998, 1 we upheld the validity of 11(b) of R.A. No. 6646 which
prohibits the sale or donation of print space or air time for political
ads, except to the Commission on Elections under 90, of B.P. No.
881, the Omnibus Election Code, with respect to print media, and
92, with respect to broadcast media. In the present case, we
consider the validity of 92 of B.P. Blg. No. 881 against claims that
the requirement that radio and television time be given free takes
property without due process of law; that it violates the eminent
domain clause of the Constitution which provides for the payment of
just compensation; that it denies broadcast media the equal
protection of the laws; and that, in any event, it violates the terms of
the franchise of petitioner GMA Network, Inc.
In those cases 2 in which citizens were authorized to sue, this Court

upheld their standing in view of the "transcendental importance" of
the constitutional question raised which justified the granting of
relief. In contrast, in the case at bar, as will presently be shown,
petitioner's substantive claim is without merit. To the extent,
therefore, that a party's standing is determined by the substantive
merit of his case or preliminary estimate thereof, petitioner
TELEBAP must be held to be without standing. Indeed, a citizen
will be allowed to raise a constitutional question only when he can
show that he has personally suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the government;
the injury fairly is fairly traceable to the challenged action; and the
injury is likely to be redressed by a favorable action. 3 Members of
petitioner have not shown that they have suffered harm as a result of
the operation of 92 of B.P. Blg. 881.
Petitioner Telecommunications and Broadcast Attorneys of the

Philippines, Inc. is an organization of lawyers of radio and television
broadcasting companies. They are suing as citizens, taxpayers, and
registered voters. The other petitioner, GMA Network, Inc., operates
radio and television broadcasting stations throughout the Philippines
under a franchise granted by Congress.
Nor do members of petitioner TELEBAP have an interest as

registered voters since this case does not concern their right of
suffrage. Their interest in 92 of B.P. Blg. 881 should be precisely in
Petitioners challenge the validity of 92 on the ground (1) that it

takes property without due process of law and without just
LAW ON ELECTION
72
upholding its validity.
stands to suffer even more should it be required to do so again this

year. Petitioner's allegation that it will suffer losses again because it
is required to provide free air time is sufficient to give it standing to
question the validity of 92. 5
Much less do they have an interest as taxpayers since this case does
not involve the exercise by Congress of its taxing or spending
power. 4 A party suing as a taxpayer must specifically show that he
has a sufficient interest in preventing the illegal expenditure of
money raised by taxation and that he will sustain a direct injury as a
result of the enforcement of the questioned statute.
Airing of COMELEC Time, a

Reasonable Condition for
Nor indeed as a corporate entity does TELEBAP have standing to

assert the rights of radio and television broadcasting companies.
Standing jus tertii will be recognized only if it can be shown that the
party suing has some substantial relation to the third party, or that
the third party cannot assert his constitutional right, or that the eight
of the third party will be diluted unless the party in court is allowed
to espouse the third party's constitutional claim. None of these
circumstances is here present. The mere fact that TELEBAP is
composed of lawyers in the broadcast industry does not entitle them
to bring this suit in their name as representatives of the affected
companies.
Grant of Petitioner's
Franchise
As pointed out in our decision in Osmea v. COMELEC, 11(b) of
R.A. No. 6646 and 90 and 92 of the B.P. Blg. 881 are part and
parcel of a regulatory scheme designed to equalize the opportunity
of candidates in an election in regard to the use of mass media for
political campaigns. These statutory provisions state in relevant
parts:
R.A. No. 6646
Nevertheless, we have decided to take this case since the other

petitioner, GMA Network, Inc., appears to have the requisite
standing to bring this constitutional challenge. Petitioner operates
radio and television broadcast stations in the Philippines affected by
the enforcement of 92 of B.P. Blg. 881 requiring radio and
television broadcast companies to provide free air time to the
COMELEC for the use of candidates for campaign and other
political purposes.
Sec. 11. Prohibited Forms of Election Propaganda. In addition to

the forms of election propaganda prohibited under Section 85 of
Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspapers, radio broadcasting or television station, or
other mass media, or any person making use of the mass media to
sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under
Petitioner claims that it suffered losses running to several million

pesos in providing COMELEC Time in connection with the 1992
presidential election and the 1995 senatorial election and that it
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73
Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media

columnist, commentator, announcer or personality who is a
candidate for any elective public office shall take a leave of absence
from his work as such during the campaign period.
Petitioners contend that 92 of BP Blg. 881 violates the due process

clause 6 and the eminent domain provision 7 of the Constitution by
taking air time from radio and television broadcasting stations
without payment of just compensation. Petitioners claim that the
primary source of revenue of the radio and television stations is the
sale of air time to advertisers and that to require these stations to
provide free air time is to authorize a taking which is not "a de
minimis temporary limitation or restraint upon the use of private
property." According to petitioners, in 1992, the GMA Network, Inc.
lost P22,498,560.00 in providing free air time of one (1) hour every
morning from Mondays to Fridays and one (1) hour on Tuesdays
and Thursday from 7:00 to 8:00 p.m. (prime time) and, in this year's
elections, it stands to lose P58,980,850.00 in view of COMELEC'S
requirement that radio and television stations provide at least 30
minutes of prime time daily for the COMELEC Time. 8
B.P. Blg. 881, (Omnibus Election Code)

Sec. 90. Comelec space. The Commission shall procure space in
at least one newspaper of general circulation in every province or
city; Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in said
province or city, which shall be known as "Comelec Space" wherein
candidates can announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially by the Commission
among all candidates within the area in which the newspaper is
circulated. (Sec. 45, 1978 EC).
Petitioners' argument is without merit, All broadcasting, whether by

radio or by television stations, is licensed by the government.
Airwave frequencies have to be allocated as there are more
individuals who want to broadcast than there are frequencies to
assign. 9 A franchise is thus a privilege subject, among other things,
to amended by Congress in accordance with the constitutional
provision that "any such franchise or right granted . . . shall be
subject to amendment, alteration or repeal by the Congress when the
common good so requires." 10
Sec. 92. Comelec time. The commission shall procure radio and
television time to be known as "Comelec Time" which shall be
allocated equally and impartially among the candidates within the
area of coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and television
stations are hereby amended so as to provide radio or television
time, free of charge, during the period of the campaign. (Sec. 46,
1978 EC)
The idea that broadcast stations may be required to provide

COMELEC Time free of charge is not new. It goes back to the
Election Code of 1971 (R.A. No. 6388), which provided:
Thus, the law prohibits mass media from selling or donating print
space and air time to the candidates and requires the COMELEC
instead to procure print space and air time for allocation to the
candidates. It will be noted that while 90 of B.P. Blg. 881 requires
the COMELEC to procure print space which, as we have held,
should be paid for, 92 states that air time shall be procured by the
COMELEC free of charge.
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Sec. 49. Regulation of election propaganda through mass media.

(a) The franchise of all radio broadcasting and television stations are
hereby amended so as to require each such station to furnish free of
74
charge, upon request of the Commission [on Elections], during the

period of sixty days before the election not more than fifteen
minutes of prime time once a week which shall be known as
"Comelec Time" and which shall be used exclusively by the
Commission to disseminate vital election information. Said
"Comelec Time" shall be considered as part of the public service
time said stations are required to furnish the Government for the
dissemination of public information and education under their
respective franchises or permits.
benefit not only of candidates but even more of the public,

particularly the voters, so that they will be fully informed of the
issues in an election? "[I]t is the right of the viewers and listeners,
not the right of the broadcasters, which is paramount." 11
Nor indeed can there be any constitutional objection to the
requirement that broadcast stations give free air time. Even in the
United States, there are responsible scholars who believe that
government controls on broadcast media can constitutionally be
instituted to ensure diversity of views and attention to public affairs
to further the system of free expression. For this purpose, broadcast
stations may be required to give free air time to candidates in an
election. 12 Thus, Professor Cass R. Sunstein of the University of
Chicago Law School, in urging reforms in regulations affecting the
broadcast industry, writes:
The provision was carried over with slight modification by the 1978
Election Code (P.D. No. 1296), which provided:
Sec. 46. COMELEC Time. The Commission [on Elections] shall
procure radio and television time to be known as "COMELEC
Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of said radio and television
stations. For this purpose, the franchises of all radio broadcasting
and television stations are hereby amended so as to require such
stations to furnish the Commission radio or television time, free of
charge, during the period of the campaign, at least once but not
oftener than every other day.
Elections. We could do a lot to improve coverage of electoral

campaigns. Most important, government should ensure free media
time for candidates. Almost all European nations make such
provisions; the United States does not. Perhaps government should
pay for such time on its own. Perhaps broadcasters should have to
offer it as a condition for receiving a license. Perhaps a commitment
to provide free time would count in favor of the grant of a license in
the first instance. Steps of this sort would simultaneously promote
attention to public affairs and greater diversity of view. They would
also help overcome the distorting effects of "soundbites" and the
corrosive financial pressures faced by candidates in seeking time on
the media.
Substantially the same provision is now embodied in 92 of B.P.

Blg. 881.
Indeed, provisions for COMELEC Tima have been made by
amendment of the franchises of radio and television broadcast
stations and, until the present case was brought, such provisions had
not been thought of as taking property without just compensation.
Art. XII, 11 of the Constitution authorizes the amendment of
franchises for "the common good." What better measure can be
conceived for the common good than one for free air time for the
LAW ON ELECTION
In truth, radio and television broadcasting companies, which are

given franchises, do not own the airwaves and frequencies through
which they transmit broadcast signals and images. They are merely
given the temporary privilege of using them. Since a franchise is a
75
mere privilege, the exercise of the privilege may reasonably be

burdened with the performance by the grantee of some form of
public service. Thus, in De Villata v. Stanley, 14 a regulation
requiring interisland vessels licensed to engage in the interisland
trade to carry mail and, for this purpose, to give advance notice to
postal authorities of date and hour of sailings of vessels and of
changes of sailing hours to enable them to tender mail for
transportation at the last practicable hour prior to the vessel's
departure, was held to be a reasonable condition for the state grant
of license. Although the question of compensation for the carriage of
mail was not in issue, the Court strongly implied that such service
could be without compensation, as in fact under Spanish sovereignty
the mail was carried free. 15
groups, including corporations, cooperatives, and similar collective

organizations, shall have the right to own, establish, and operate
economic enterprises, subject to the duty of the State to promote
distributive justice and to intervene when the common good so
demands (Article XII).
The interconnection which has been required of PLDT is a form of
"intervention" with property rights dictated by "the objective of
government to promote the rapid expansion of telecommunications
services in all areas of the Philippines, . . . to maximize the use of
telecommunications facilities available, . . . in recognition of the
vital role of communications in nation building . . . and to ensure
that all users of the public telecommunications service have access
to all other users of the service wherever they may be within the
Philippines at an acceptable standard of service and at reasonable
cost" (DOTC Circular No. 90-248). Undoubtedly, the encompassing
objective is the common good. The NTC, as the regulatory agency
of the State, merely exercised its delegated authority to regulate the
use of telecommunications networks when it decreed
interconnection.
In Philippine Long Distance Telephone Company v. NTC, 16 the

Court ordered the PLDT to allow the interconnection of its domestic
telephone system with the international gateway facility of Eastern
Telecom. The Court cited (1) the provisions of the legislative
franchise allowing such interconnection; (2) the absence of any
physical, technical, or economic basis for restricting the linking up
of two separate telephone systems; and (3) the possibility of increase
in the volume of international traffic and more efficient service, at
more moderate cost, as a result of interconnection.
In the granting of the privilege to operate broadcast stations and

thereafter supervising radio and television stations, the state spends
considerable public funds in licensing and supervising such stations.
18
It would be strange if it cannot even require the licensees to render
public service by giving free air time.
Similarly, in the earlier case of PLDT v. NTC, 17 it was held:

Such regulation of the use and ownership of telecommunications
systems is in the exercise of the plenary police power of the State
for the promotion of the general welfare. The 1987 Constitution
recognizes the existence of that power when it provides:
Considerable effort is made in the dissent of Mr. Justice Panganiban

to show that the production of television programs involves large
expenditure and requires the use of equipment for which huge
investments have to be made. The dissent cites the claim of GMA
Network that the grant of free air time to the COMELEC for the
duration of the 1998 campaign period would cost the company
Sec. 6. The use of property bears a social function, and all economic
agents shall contribute to the common good. Individuals and private
LAW ON ELECTION
76
P52,380,000, representing revenue it would otherwise earn if the air

time were sold to advertisers, and the amount of P6,600,850,
representing the cost of producing a program for the COMELEC
Time, or the total amount of P58,980,850.
advertisers." (p. 13) If air lanes cannot be appropriated, how can

they be used to produce air time which the franchise holders can sell
to recover their investment? There is a contradiction here.
As to the additional amount of P6,600,850, it is claimed that this is
the cost of producing a program and it is for such items as "sets and
props," "video tapes," "miscellaneous (other rental, supplies,
transportation, etc.)," and "technical facilities (technical crew such
as director and cameraman as well as 'on air plugs')." There is no
basis for this claim. Expenses for these items will be for the account
of the candidates. COMELEC Resolution No. 2983, 6(d)
specifically provides in this connection:
The claim that petitioner would be losing P52,380,000 in unrealized

revenue from advertising is based on the assumption that air time is
"finished product" which, it is said, become the property of the
company, like oil produced from refining or similar natural
resources after undergoing a process for their production. But air
time is not owned by broadcast companies. As held in Red Lion
Broadcasting Co. v. F.C.C., 19 which upheld the right of a party
personally attacked to reply, "licenses to broadcast do not confer
ownership of designated frequencies, but only the temporary
privilege of using them." Consequently, "a license permits
broadcasting, but the license has no constitutional right to be the one
who holds the license or to monopolize a radio frequency to the
exclusion of his fellow citizens. There is nothing in the First
Amendment which prevents the Government from requiring a
licensee to share his frequency with others and to conduct himself as
a proxy or fiduciary with obligations to present those views and
voices which are representative of his community and which would
otherwise, by necessity, be barred from the airwaves." 20 As radio
and television broadcast stations do not own the airwaves, no private
property is taken by the requirement that they provide air time to the
COMELEC.
(d) Additional services such as tape-recording or video-taping of

programs, the preparation of visual aids, terms and condition
thereof, and consideration to be paid therefor may be arranged by
the candidates with the radio/television station concerned. However,
no radio/television station shall make any discrimination among
candidates relative to charges, terms, practices or facilities for in
connection with the services rendered.
It is unfortunate that in the effort to show that there is taking of
private property worth millions of pesos, the unsubstantiated charge
is made that by its decision the Court permits the "grand larceny of
precious time," and allows itself to become "the people's unwitting
oppressor." The charge is really unfortunate. In Jackson
v.Rosenbaun, 21 Justice Holmes was so incensed by the resistance of
property owners to the erection of party walls that he was led to say
in his original draft, "a statute, which embodies the community's
understanding of the reciprocal rights and duties of neighboring
landowners, does not need to invoke thepenalty larceny of the police
power in its justification." Holmes's brethren corrected his taste, and
Holmes had to amend the passage so that in the end it spoke only of
Justice Panganiban's dissent quotes from Tolentino on the Civil

Code which says that "the air lanes themselves 'are not property
because they cannot be appropriated for the benefit of any
individual.'" (p. 5) That means neither the State nor the stations own
the air lanes. Yet the dissent also says that "The franchise holders
can recover their huge investments only by selling air time to
LAW ON ELECTION
77
invoking "the police power." 22 Justice Holmes spoke of the "petty

larceny" of the police power. Now we are being told of the "grand
larceny [by means of the police power] of precious air time."
candidates for the purpose of ensuring, among other things, equal

opportunity, time, and the right to reply as mandated by the
Constitution. 23
Giving Free Air Time a Duty
Indeed, it is wrong to claim an amendment of petitioner's franchise

for the reason that B.P. Blg. 881, which is said to have amended
R.A. No. 7252, actually antedated it. 24 The provision of 92 of B.P.
Blg. 881 must be deemed instead to be incorporated in R.A. No.
7252. And, indeed, 4 of the latter statute does.
Assumed by Petitioner
Petitioners claim that 92 is an invalid amendment of R.A. No. 7252
which granted GMA Network, Inc. a franchise for the operation of
radio and television broadcasting stations. They argue that although
5 of R.A. No. 7252 gives the government the power to temporarily
use and operate the stations of petitioner GMA Network or to
authorize such use and operation, the exercise of this right must be
compensated.
For the fact is that the duty imposed on the GMA Network, Inc. by
its franchise to render "adequate public service time" implements
92 of B.P. Blg. 881. Undoubtedly, its purpose is to enable the
government to communicate with the people on matters of public
interest. Thus, R.A. No. 7252 provides:
Sec. 4. Responsibility to the Public. The grantee shall provide
adequate public service time to enable the Government, through the
said broadcasting stations, to reach the population on important
public issues; provide at all times sound and balanced programming;
promote public participation such as in community programming;
assist in the functions of public information and education; conform
to the ethics of honest enterprise; and not use its station for the
broadcasting of obscene and indecent language, speech, act or scene,
or for the dissemination of deliberately false information or willful
misrepresentation, or to the detriment of the public interest, or to
incite, encourage, or assist in subversive or treasonable acts.
(Emphasis added).
The cited provision of. R.A. No. 7252 states:

Sec. 5. Right of Government. A special right is hereby reserved to
the President of the Philippines, in times of rebellion, public peril,
calamity, emergency, disaster or disturbance of peace and order, to
temporarily take over and operate the stations of the grantee, to
temporarily suspend the operation of any station in the interest of
public safety, security and public welfare, or to authorize the
temporary use and operation thereof by any agency of the
Government, upon due compensation to the grantee, for the use of
said stations during the period when they shall be so operated.
The basic flaw in petitioner's argument is that it assumes that the
provision for COMELEC Time constitutes the use and operation of
the stations of the GMA Network, Inc., This is not so. Under 92 of
B.P. Blg. 881, the COMELEC does not take over the operation of
radio and television stations but only the allocation of air time to the
LAW ON ELECTION
It is noteworthy that 40 of R.A. No. 6388, from which 92 of B.P.

Blg. 881 was taken, expressly provided that the COMELEC Time
should "be considered as part of the public service time said stations
are required to furnish the Government for the dissemination of
78
public information and education under their respective franchises

or permits." There is no reason to suppose that 92 of B.P. Blg. 881
considers the COMELEC Time therein provided to be otherwise
than as a public service which petitioner is required to render under
4 of its charter (R.A. No. 7252). In sum, B.P. Blg. 881, 92 is not
an invalid amendment of petitioner's franchise but the enforcement
of a duty voluntarily assumed by petitioner in accepting a public
grant of privilege.
now provided for. It is basic, however, that an administrative agency

cannot, in the exercise of lawmaking, amend a statute of Congress.
Since 2 of Resolution No. 2983-A is invalid, it cannot be invoked
by the parties.
Thus far, we have confined the discussion to the provision of 92 of

B.P. Blg. 881 for free air time without taking into account
COMELEC Resolution No. 2983-A, 2 of which states:
Air Time by COMELEC
Law Allows Flextime for Programming

by Stations, Not Confiscation of
It is claimed that there is no standard in the law to guide the

COMELEC in procuring free air time and that "theoretically the
COMELEC can demand all of the air time of such stations." 25
Petitioners do not claim that COMELEC Resolution No. 2983-A
arbitrarily sequesters radio and television time. What they claim is
that because of the breadth of the statutory language, the provision
in question is susceptible of "unbridled, arbitrary and oppressive
exercise." 26
Sec. 2. Grant of "Comelec Time." Every radio broadcasting and

television station operating under franchise shall grant the
Commission, upon payment of just compensation, at least thirty (30)
minutes of prime time daily, to be known as "Comelec Time",
effective February 10, 1998 for candidates for President, VicePresident and Senators, and effective March 27, 1998, for candidates
for local elective offices, until May 9, 1998. (Emphasis added).
The contention has no basis. For one, the COMELEC is required to

procure free air time for candidates "within the area of coverage" of
a particular radio or television broadcaster so that it cannot, for
example, procure such time for candidates outside that area. At what
time of the day and how much time the COMELEC may procure
will have to be determined by it in relation to the overall objective
of informing the public about the candidates, their qualifications and
their programs of government. As stated in Osmea v. COMELEC,
the COMELEC Time provided for in 92, as well as the COMELEC
Space provided for in 90, is in lieu of paid ads which candidates
are prohibited to have under 11(b) of R.A. No. 6646. Accordingly,
this objective must be kept in mind in determining the details of the
COMELEC Time as well as those of the COMELEC Space.
This is because the amendment providing for the payment of "just

compensation" is invalid, being in contravention of 92 of B.P. Blg.
881 that radio and television time given during the period of the
campaign shall be "free of charge." Indeed, Resolution No. 2983
originally provided that the time allocated shall be "free of charge,"
just as 92 requires such time to be given "free of charge." The
amendment appears to be a reaction to petitioner's claim in this case
that the original provision was unconstitutional because it allegedly
authorized the taking of property without just compensation.
The Solicitor General, relying on the amendment, claims that there
should be no more dispute because the payment of compensation is
LAW ON ELECTION
79
There would indeed be objection to the grant of power to the

COMELEC if 92 were so detailed as to leave no room for
accommodation of the demands of radio and television
programming. For were that the case, there could be an intrusion
into the editorial prerogatives of radio and television stations.
broadcast industry to provide free air time for the COMELEC Time
is a fair exchange for what the industry gets.
From another point of view, this Court has also held that because of
the unique and pervasive influence of the broadcast media,
"[n]ecessarily . . . the freedom of television and radio broadcasting is
somewhat lesser in scope than the freedom accorded to newspaper
and print media." 29
Differential Treatment of
Broadcast Media Justified
Petitioners complain that B.P. Blg. 881, 92 singles out radio and
television stations to provide free air time. They contend that
newspapers and magazines are not similarly required as, in fact, in
Philippine Press Institute v.COMELEC, 27 we upheld their right to
the payment of just compensation for the print space they may
provide under 90.
The broadcast media have also established a uniquely pervasive

presence in the lives of all Filipinos. Newspapers and current books
are found only in metropolitan areas and in the poblaciones of
municipalities accessible to fast and regular transportation. Even
here, there are low income masses who find the cost of books,
newspapers, and magazines beyond their humble means. Basic
needs like food and shelter perforce enjoy high priorities.
The argument will not bear analysis. It rests on the fallacy that
broadcast media are entitled to the same treatment under the free
speech guarantee of the Constitution as the print media. There are
important differences in the characteristics of the two media,
however, which justify their differential treatment for free speech
purposes. Because of the physical limitations of the broadcast
spectrum, the government must, of necessity, allocate broadcast
frequencies to those wishing to use them. There is no similar
justification for government allocation and regulation of the print
media. 28
On the other hand, the transistor radio is found everywhere. The

television set is also becoming universal. Their message may be
simultaneously received by a national or regional audience of
listeners including the indifferent or unwilling who happen to be
within reach of a blaring radio or television set. The materials
broadcast over the airwaves reach every person of every age,
persons of varying susceptibilities to persuasion, persons of different
I.Q.s and mental capabilities, persons whose reactions to
inflammatory or offensive speech would he difficult to monitor or
predict. The impact of the vibrant speech is forceful and immediate.
Unlike readers of the printed work, the radio audience has lesser
opportunity to cogitate, analyze, and reject the utterance. 30
In the allocation of limited resources, relevant conditions may

validly be imposed on the grantees or licensees. The reason for this
is that, as already noted, the government spends public funds for the
allocation and regulation of the broadcast industry, which it does not
do in the case of the print media. To require the radio and television
LAW ON ELECTION
Petitioners' assertion therefore that 92 of B.P. Blg. 881 denies them
80
the equal protection of the law has no basis. In addition, their plea
that 92 (free air time) and 11(b) of R.A. No. 6646 (ban on paid
political ads) should be invalidated would pave the way for a return
to the old regime where moneyed candidates could monopolize
media advertising to the disadvantage of candidates with less
resources. That is what Congress tried to reform in 1987 with the
enactment of R.A. No. 6646. We are not free to set aside the
judgment of Congress, especially in light of the recent failure of
interested parties to have the law repealed or at least modified.
the mandate to the COMELEC to procure print space and air time
for allocation to candidates. As we said in Osmea v. COMELEC:
The term political "ad ban" when used to describe 11(b) of R.A.
No. 6646, is misleading, for even as 11(b) prohibits the sale or
donation of print space and air time to political candidates, it
mandates the COMELEC to procure and itself allocate to the
candidates space and time in the media. There is no suppression of
political ads but only a regulation of the time and manner of
advertising.
Requirement of COMELEC Time, a

xxx xxx xxx
Reasonable Exercise of the
. . . What is involved here is simply regulation of this nature. Instead
of leaving candidates to advertise freely in the mass media, the law
provides for allocation, by the COMELEC of print space and air
time to give all candidates equal time and space for the purpose of
ensuring "free, orderly, honest, peaceful, and credible elections."
State's Power to Regulate

Use of Franchises
Finally, it is argued that the power to supervise or regulate given to
the COMELEC under Art. IX-C, 4 of the Constitution does not
include the power to prohibit. In the first place, what the
COMELEC is authorized to supervise or regulate by Art. IX-C, 4
of the Constitution, 31 among other things, is the use by media of
information of their franchises or permits, while what Congress (not
the COMELEC) prohibits is the sale or donation of print space or air
time for political ads. In other words, the object of supervision or
regulation is different from the object of the prohibition. It is another
fallacy for petitioners to contend that the power to regulate does not
include the power to prohibit. This may have force if the object of
the power were the same.
With the prohibition on media advertising by candidates themselves,

the COMELEC Time and COMELEC Space are about the only
means through which candidates can advertise their qualifications
and programs of government. More than merely depriving their
qualifications and programs of government. More than merely
depriving candidates of time for their ads, the failure of broadcast
stations to provide air time unless paid by the government would
clearly deprive the people of their right to know. Art III, 7 of the
Constitution provides that "the right of the people to information on
matters of public concern shall be recognized," while Art. XII, 6
states that "the use of property bears a social function [and] the right
to own, establish, and operate economic enterprises [is] subject to
the duty of the State to promote distributive justice and to intervene
when the common good so demands."
In the second place, the prohibition in 11(b) of R.A. No. 6646 is

only half of the regulatory provision in the statute. The other half is
LAW ON ELECTION
81
To affirm the validity of 92 of B.P. Blg. 881 is to hold public

broadcasters to their obligation to see to it that the variety and vigor
of public debate on issues in an election is maintained. For while
broadcast media are not mere common carriers but entities with free
speech rights, they are also public trustees charged with the duty of
ensuring that the people have access to the diversity of views on
political issues. This right of the people is paramount to the
autonomy of broadcast media. To affirm the validity of 92,
therefore, is likewise to uphold the people's right to information on
matters of public concern. The use of property bears a social
function and is subject to the state's duty to intervene for the
common good. Broadcast media can find their just and highest
reward in the fact that whatever altruistic service they may render in
connection with the holding of elections is for that common good.
injury as a result of the subject law. Petitioner GMA Network, on the

other hand, had the requisite standing to bring the constitutional
challenge. Petitioner operates radio and television broadcast stations
in the Philippines affected by the enforcement of Section 92, B.P.
No. 881.
Petitioners challenge the validity of Section 92, B.P. No. 881 which
provides:
Comelec Time- The Commission shall procure radio and television
time to be known as the Comelec Time which shall be allocated
equally and impartially among the candidates within the area of
coverage of all radio and television stations. For this purpose, the
franchise of all radio broadcasting and television stations are hereby
amended so as to provide radio or television time, free of charge,
during the period of campaign.
For the foregoing reasons, the petition is dismissed.
Petitioner contends that while Section 90 of the same law requires

COMELEC to procure print space in newspapers and magazines
with payment, Section 92 provides that air time shall be procured by
COMELEC free of charge. Thus it contends that Section 92 singles
out radio and television stations to provide free air time.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno,
Kapunan, Martinez and Quisumbing, JJ., concur.
Petitioner claims that it suffered losses running to several million

pesos in providing COMELEC Time in connection with the 1992
presidential electionand 1995 senatorial election and that it stands to
suffer even more should it be required to do so again this year.
Petitioners claim that the primary source of revenue of the radio and
television stations is the sale of air time to advertisers and to require
these stations to provide free air time is to authorize unjust taking of
private property. According to petitioners, in 1992 it lost
P22,498,560.00 in providing free air time for one hour each day and,
in this years elections, it stands to lost P58,980,850.00 in view of
TELECOMMUNICATIONS AND BROADCAST ATTORNEYS

OF THE PHILS. VS. COMELEC [289 SCRA 337; G.R. NO.
132922; 21 APR 1998]
Facts: Petitioner Telecommunications and Broadcast Attorneys of
the Philippines, Inc. (TELEBAP) is an organization of lawyers of
radio and television broadcasting companies. It was declared to be
without legal standing to sue in this case as, among other reasons, it
was not able toshow that it was to suffer from actual or threatened
LAW ON ELECTION
82
COMELECs requirement that it provide at least 30 minutes of

prime time daily for such.
As radio and television broadcast stations do not own the airwaves,

no private property is taken by the requirement that they provide air
time to the COMELEC.
Issues:
(1) Whether of not Section 92 of B.P. No. 881 denies radio and
televisionbroadcast companies the equal protection of the laws.
(2) Whether or not Section 92 of B.P. No. 881 constitutes taking of
property without due process of law and without just compensation.
Held: Petitioners argument is without merit. All broadcasting,
whether radio or by television stations, is licensed by the
government. Airwavefrequencies have to be allocated as there are
more individuals who want to broadcast that there are frequencies to
assign. Radio and television broadcasting companies, which are
given franchises, do not own the airwaves and frequencies through
which they transmit broadcast signals and images. They are merely
given the temporary privilege to use them. Thus, such exercise of
the privilege may reasonably be burdened with the performance by
the grantee of some form of public service. In granting the privilege
to operate broadcast stations and supervising radio and television
stations, the state spends considerable public funds in licensing and
supervising them.

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 147571
SOCIAL WEATHER STATIONS, INCORPORATED and

KAMAHALAN PUBLISHING CORPORATION, doing
business as MANILA STANDARD, petitioners,
vs.
The argument that the subject law singles out radio and television
stations to provide free air time as against newspapers and
magazines which require payment of just compensation for the print
space they may provide is likewise without merit. Regulation of the
broadcast industry requires spending of public funds which it does
not do in the case of print media. To require the broadcast industry
to provide free air time for COMELEC is a fair exchange for what
the industry gets.
LAW ON ELECTION
May 5, 2001
MENDOZA, J.:
Petitioner, Social Weather Stations, Inc. (SWS), is a private nonstock, non-profit social research institution conducting surveys in
various fields, including economics, politics, demography, and
social development, and thereafter processing, analyzing, and
publicly reporting the results thereof. On the other hand, petitioner
Kamahalan Publishing Corporation publishes the Manila Standard,
83
a newspaper of general circulation, which features newsworthy

items of information including election surveys. 1wphi1.nt
Petitioners argue that the restriction on the publication of election

survey results constitutes a prior restraint on the exercise of freedom
of speech without any clear and present danger to justify such
restraint. They claim that SWS and other pollsters conducted and
published the results of surveys prior to the 1992, 1995, and 1998
elections up to as close as two days before the election day without
causing confusion among the voters and that there is neither
empirical nor historical evidence to support the conclusion that there
is an immediate and inevitable danger to tile voting process posed
by election surveys. They point out that no similar restriction is
imposed on politicians from explaining their opinion or on
newspapers or broadcast media from writing and publishing articles
concerning political issues up to the day of the election.
Consequently, they contend that there is no reason for ordinary
voters to be denied access to the results of election surveys, which
are relatively objective. 1wphi1.nt
Petitioners brought this action for prohibition to enjoin the

Commission on Elections from enforcing 5.4 of RA. No.9006 (Fair
Election Act), which provides:
Surveys affecting national candidates shall not be published fifteen
(15) days before an election and surveys affecting local candidates
shall not be published seven (7) days before an election.
The term "election surveys" is defined in 5.1 of the law as follows:
Election surveys refer to the measurement of opinions and
perceptions of the voters as regards a candidate's popularity,
qualifications, platforms or a matter of public discussion in relation
to the election, including voters preference for candidates or
publicly discussed issues during the campaign period (hereafter
referred to as "Survey").
Respondent Commission on Elections justifies the restrictions in

5.4 of R.A. No. 9006 as necessary to prevent the manipulation and
corruption of the electoral process by unscrupulous and erroneous
surveys just before the election. It contends that (1) the prohibition
on the publication of election survey results during the period
proscribed by law bears a rational connection to the objective of the
law, i.e., the prevention of the debasement of the electoral process
resulting from manipulated surveys, bandwagon effect, and absence
of reply; (2) it is narrowly tailored to meet the "evils" sought to be
prevented; and (3) the impairment of freedom of expression is
minimal, the restriction being limited both in duration, i.e., the last
15 days before the national election and the last 7 days before a local
election, and in scope as it does not prohibit election survey results
but only require timeliness. Respondent claims that in National
Press Club v. COMELEC,1 a total ban on political advertisements,
with candidates being merely allocated broadcast time during the so-
The implement 5.4, Resolution 3636, 24(h), dated March I, 2001,

of the COMELEC enjoins
Surveys affecting national candidates shall not be published fifteen
(15) days before an election and surveys affecting local candidates
shall not be published seven (7) days before an election.
Petitioner SWS states that it wishes to conduct an election survey
throughout the period of the elections both at the national and local
levels and release to the media the results of such survey as well as
publish them directly. Petitioner Kamahalan Publishing Corporation,
on the other hand, states that it intends to publish election survey
results up to the last day of the elections on May 14,2001.
LAW ON ELECTION
84
called COMELEC space or COMELEC hour, was upheld by this

Court. In contrast, according to respondent, it states that the
prohibition in 5.4 of RA. No. 9006 is much more limited.
The technical effect of Article IX (C) (4) of the Constitution may be

seen to be that no presumption of invalidity arises in respect of
exercises of supervisory or regulatory authority on the part of the
Comelec for the Purpose of securing equal opportunity among
candidates for political office, although such supervision or
regulation may result in some limitation of the rights of free speech
and free press.5
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006
constitutes an unconstitutional abridgment of freedom of speech,
expression, and the press.
MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the

test of clear and present danger for determining the validity of 5.4.
Indeed, as has been pointed out in Osmea v. COMELEC,6 this test
was originally formulated for the criminal law and only later
appropriated for free speech cases. Hence, while it may be useful for
determining the validity of laws dealing with inciting to sedition or
incendiary speech, it may not be adequate for such regulations as the
one in question. For such a test is concerned with questions of the
gravity and imminence of the danger as basis for curtailing free
speech, which is not the case of 5.4 and similar regulations.
To be sure, 5.4Iays a prior restraint on freedom of speech,

expression, and the press prohibiting the publication of election
survey results affecting candidates within the prescribed periods of
fifteen (15) days immediately preceding a national election seven
(7) days before a local election. Because of tile preferred status of
tile constitutional rights of speech, expression, and he press, such a
measure is vitiated by a weighty presumption of invalidity.2 Indeed,
any system of prior restraints of expression comes to this Court
bearing a heavy Presumption against its constitutional validity.
...The Government thus carries a heavy burden of showing
justification for in enforcement of such restraint. "' 3 There, thus a
reversal of the normal presumption of validity that inheres in every
legislation.
Instead, MR JUSTICE KAPUNAN purports to engage in a form of

balancing by "weighing and balancing the circumstances to
determine whether public interest [in free, orderly, honest, peaceful
and credible elections] is served by the regulation of the free
enjoyment of the rights" (page 7). After canvassing the reasons for
the prohibition, i.e., to prevent last-minute pressure on voters, the
creation of bandwagon effect to favor candidates, misinformation,
the junking" of weak and "losing" candidates by their parties, and
the form of election cheating called "dagdag-bawas" and invoking
the State's power to supervise media of information during the
election period (pages 11-16), the dissenting opinion simply
concludes:
Nor may it be argued that because of Art. IX-C, 4 of the

Constitution, which gives the COMELEC supervisory power to
regulate the enjoyment or utilization of franchise for the operation of
media of communication, no presumption of invalidity attaches to a
measure like 5.4. For as we have pointed out in sustaining tile ban
on media political advertisements, the grant of power to the
COMELEC under Art. IX-C, 4 is limited to ensuring "equal
opportunity, time, space, and the right to reply" as well as uniform
and reasonable rates of charges for the use of such media facilities
"public information campaigns and forums among candidates." 4
This Court stated:
LAW ON ELECTION
Viewed in the light of the legitimate and significant objectives of
85
Section 5.4, It may be seen that its limitingimpact on the rights of

free speech and of the press is not unduly repressive or
unreasonable. In Indeed, it is a mere restriction, not an absolute
prohibition, on the publication of election surveys. It is limited in
duration; it applies only during the period when the voters are
presumably contemplating whom they should elect and when they
are most susceptible to such unwarranted persuasion. These surveys
may be published thereafter. (Pages 17-18)
4880, which limited the period of election campaign and partisan

political activity, was an unconstitutional abridgment of freedom of
expression.
Nor can the ban on election surveys be justified on the ground that
there are other countries - 78, according to the Solicitor General,
while the dissent cites 28 - which similarly impose restrictions on
the publication of election surveys. At best this survey is
inconclusive. It is note worthy that in the United States no restriction
on the publication of election survey results exists. It cannot be
argued that this is because the United States is a mature democracy.
Neither are there laws imposing an embargo on survey results, even
for a limited period, in other countries. As pointed out by petitioners,
the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland,
Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands,
Norway, Sweden, and Ukraine, some of which are no older nor more
mature than the Philippines in political development, do not restrict
the publication of election survey results.
The dissent does not, however, show why, on balance, these

considerations should outweigh the value of freedom of expression.
Instead, reliance is placed on Art. IX-C, 4. As already stated, the
purpose of Art. IX-C, 4 is to "ensure equal opportunity, time, and
space and the right of reply, including reasonable, equal rates
therefor for public information campaigns and forums among
candidates. " Hence the validity of the ban on media advertising. It
is noteworthy that R.A. No. 9006, 14 has lifted the ban and now
allows candidates to advertise their candidacies in print and
broadcast media. Indeed, to sustain the ban on the publication of
survey results would sanction the censorship of all speaking by
candidates in an election on the ground that the usual bombasts and
hyperbolic claims made during the campaigns can confuse voters
and thus debase the electoral process.
What test should then be employed to determine the constitutional

validity of 5.4? The United States Supreme Court, through Chief
Justice Warren, held in United States v. O 'Brien:
[A] Government regulation is sufficiently justified [1] if it is within
the constitutional power of the Government; [2] if it furthers an
important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free
expression; and [4] if the incidental restriction on alleged First
Amendment freedoms [of speech, expression and press] is no
greater than is essential to the furtherance of that interest.8
In sum, the dissent has engaged only in a balancing at the margin.

This form of ad hoc balancing predictably results in sustaining the
challenged legislation and leaves freedom of speech, expression, and
the press with little protection. For anyone who can bring a plausible
justification forward can easily show a rational connection between
the statute and a legitimate governmental purpose. In contrast, the
balancing of interest undertaken by then Justice Castro in Gonzales
v. COMELEC,7 from which the dissent in this case takes its cue, was
a strong one resulting in his conclusion that , 50-B of R.A. No.
LAW ON ELECTION
This is so far the most influential test for distinguishing contentbased from content neutral regulations and is said to have "become
86
canonical in the review of such laws."9 is noteworthy that the O

'Brien test has been applied by this Court in at least two cases.10
speech, the prevention and punishment of which have never been

thought to raise any Constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting or 'fighting'
words - those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. [S]uch utterances are no
essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and
morality
Under this test, even if a law furthers an important or substantial

governmental interest, it should be invalidated if such governmental
interest is "not unrelated to the Expression of free expression."
Moreover, even if the purpose is unrelated to the suppression of free
speech, the law should nevertheless be invalidated if the restriction
on freedom of expression is greater than is necessary to achieve the
governmental purpose in question.
Nor is there justification for the prior restraint which 5.4Iays on

protected speech. Near v. Minnesota,13 it was held:
Our inquiry should accordingly focus on these two considerations as

applied to 5.4.
[The] protection even as to previous restraint is not absolutely

unlimited. But the limitation has been recognized only in
exceptional cases. No one would question but that a government
might prevent actual obstruction to its recruiting service or the
publication of the sailing dates transports or the number and location
of troops. On similar grounds, the primary requirements of decency
may be enforced against obscene publications. The security of the
community life may be protected against incitements to acts of
violence and overthrow by force of orderly government
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test
because the causal connection of expression to the asserted
governmental interest makes such interest "not related to the
suppression of free expression." By prohibiting the publication of
election survey results because of the possibility that such
publication might undermine the integrity of the election, 5.4
actually suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by
newspaper columnists, radio and TV commentators, armchair
theorists, and other opinion takers. In effect, 5.4 shows a bias for a
particular subject matter, if not viewpoint, by referring personal
opinion to statistical results. The constitutional guarantee of freedom
of expression means that "the government has no power to restrict
expression because of its message, its ideas, its subject matter, or its
content."11 The inhibition of speech should be upheld only if the
expression falls within one of the few unprotected categories dealt
with in Chaplinsky v. New Hampshire, 12 thus:
Thus, contrary to the claim of the Solicitor General, the prohibition

imposed by 5.4 cannot be justified on the ground that it is only for
a limited period and is only incidental. The prohibition may be for a
limited time, but the curtailment of the right of expression is direct,
absolute, and substantial. It constitutes a total suppression of a
category of speech and is not made less so because it is only for a
period of fifteen (15) days immediately before a national election
and seven (7) days immediately before a local election. ..
There are certain well-defined and narrowly limited classes of
LAW ON ELECTION
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b),
87
which this Court found to be valid in National Press Club v.

COMELEC,14 and Osmea v. COMELEC.15 For the ban imposed by
R.A. No. 6646, 11(b) is not only authorized by a specific
constitutional provision,16 but it also provided an alternative so that,
as this Court pointed out in Osmea, there was actually no ban but
only a substitution of media advertisements by the COMELEC
space and COMELEC hour.
which each candidate brings his ideas. As for the purpose of the law
to prevent bandwagon effects, it is doubtful whether the
Government can deal with this natural-enough tendency of some
voters. Some voters want to be identified with the "winners." Some
are susceptible to the herd mentality. Can these be legitimately
prohibited by suppressing the publication of survey results, which
are a form of expression? It has been held that "[mere] legislative
preferences or beliefs respecting matters of public convenience may
well support regulation directed at other personal activities, but be
insufficient to justify such as diminishes the exercise of rights so
vital to the maintenance of democratic institutions."18
Second. Even if the governmental interest sought to be promoted is

unrelated to the suppression of speech and the resulting restriction of
free expression is only incidental, 5.4 nonetheless fails to meet
criterion [4] of the O'Brien test, namely, that the restriction be not
greater than is necessary to further the governmental interest. As
already stated, 5.4 aims at the prevention of last-minute pressure on
voters, the creation of bandwagon effect, "junking" of weak or
"losing" candidates, and resort to the form of election cheating
called "dagdag-bawas." Praiseworthy as these aims of the regulation
might be, they cannot be attained at the sacrifice of the fundamental
right of expression, when such aim can be more narrowly pursued
by punishing unlawful acts, rather than speechbecause of
apprehension that such speech creates the danger of such evils.
Thus, under the Administrative Code of 1987, 17 the COMELEC is
given the power:
To summarize then, we hold that 5.4 is invalid because (1) it

imposes a prior restraint on the freedom of expression, (2) it is a
direct and total suppression of a category of expression even though
such suppression is only for a limited period, and (3) the
governmental interest sought to be promoted can be achieved by
means other than suppression of freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A,
7 of the Constitution, its decisions, orders, or resolution may be
reviewed by this Court only certiorari. The flaws in this argument is
that it assumes that its Resolution 3636, March 1, 2001 is a
"decision, order, or resolution" within the meaning of Art. IX-A, 7.
Indeed, counsel for COMELEC maintain that Resolution 3636 was
"rendered" by the Commission. However, the Resolution does not
purport to adjudicate the right of any party. It is not an exercise by
the COMELEC of its adjudicatory power to settle the claims of
parties. To the contrary, Resolution 3636 clearly states that it is
promulgated to implement the provisions of R.A. No. 9006. Hence,
there is no basis for COMELEC's claim that this petition for
prohibition is inappropriate. Prohibition has been fund appropriate
for testing the constitutionality of various election laws, rules, and
To stop any illegal activity, or confiscate, tear down, and stop any
unlawful, libelous, misleading or false election propaganda, after
due notice and hearing.
This is surely a less restrictive means than the prohibition contained
in 5.4. Pursuant to this power of the COMELEC, it can confiscate
bogus survey results calculated to mislead voters. Candidates can
have their own surveys conducted. No right of reply can be invoked
by others. No principle of equality is involved. It is a free market to
LAW ON ELECTION
88
Yes, Section 5.4 of R.A. 9006 constitutes an unconstitutional abridgement

of freedom of speech, expression, and the press. The power of the
COMELEC over media franchises is limited to ensuring equal opportunity,
time, space, and the right to reply, as well as to fix reasonable rates of
charge for the use of media facilities for public information and forms
among candidates.Here, the prohibition of speech is direct, absolute, and
substantial. Nor does this section pass the Obrient test for content related
regulation because (1) it suppresses one type of expression while allowing
other types such as editorials,etc.; and (2) the restriction is greater than
what is needed to protect government interest because the interest can e
protected by narrower restrictions such as subsequent punishment.Note:
Justice Kapunans dissenting opinion basically says that the test of clear
and present danger is inappropriate to use in order to test the validity of
this section.Instead, he purports to engage in a form of balancing by
weighing and balancing the circumstances to determine whether public
interest is served by the regulation of the free enjoyment of the rights.
However, he failed to show why, on the balance,the other considerations
(for example, prevention of last minute pressure on voters)should
outweigh the value of freedom of expression.
regulations.19
WHEREFORE, the petition for prohibited GRANTED and 5.4 of
R.A. No. 9006 24(h) of COMELEC Resolution 3636, March 1,
2001, are declared unconstitutional.
SO ORDERED.
Davide, JI:, C.J., Vitug, and Gonzaga-Reyes, JJ., concur.
Social Weather Stations v. COMELECG.R. No. 147571 May 5, 2001
FACTS:
On the one hand, Social Weather Stations (SWS) is an institution
conducting surveys in various fields. Kamahalan Publishing Corp., on the
other hand, publishes the Manila Standard which is a newspaper of
general circulation and features items of information including election
surveys. Both SWS and Kamahalan are contesting the validity and
enforcement of R.A. 9006 (Fair Election Act), especially section 5.4which
provides that surveys affecting national candidates shall not be published
15days before an election and surveys affecting local candidates shall not
be published 7 days before the election.SWS wanted to conduct an
election survey throughout the period of the elections both at the national
and local levels and release to the media the results of such survey as well
as publish them directly. Kamahalan, for its part, intends to publish election
survey results up to the last day of the elections on May 14, 2001.
ISSUE:
Whether or not the restriction on the publication of election survey
constitutes a prior restraint on the exercise of freedom of speech without
any clear and present danger to justify such restraint
RULING/RATIO:
LAW ON ELECTION

89
SUPREME COURT
Manila
M.R. Nos. 93-2654 and 94-0065 (Rollo, p. 14).

Petitioner went to the COMELEC En Banc (UND No. 94-040),
which denied the petition in a Resolution dated April 28, 1994
(Rollo, pp. 10-13).
EN BANC
G.R. No. 115245 July 11, 1995
Hence, this petition for certiorari.

JUANITO C. PILAR, petitioner,
vs.
We dismiss the petition.

II
QUIASON, J.:
Section 14 of R.A. No. 7166 entitled "An Act Providing for
Synchronized National and Local Elections and for Electoral
Reforms, Authorizing Appropriations Therefor, and for Other
Purposes" provides as follows:
This is a petition for certiorari under Rule 65 of the Revised Rules

of Court assailing the Resolution dated April 28, 1994 of the
Commission on Elections (COMELEC) in UND No. 94-040.
I
Statement of Contributions and Expenditures: Effect of Failure to

File Statement. Every candidateand treasurer of the political party
shall, within thirty (30) days after the day of the election, file in
duplicate with the offices of the Commission the full, true and
itemized statement of all contributions and expenditures in
connection with the election.
On March 22, 1992, petitioner Juanito C. Pilar filed his certificate of

candidacy for the position of member of the Sangguniang
Panlalawigan of the Province of Isabela.
On March 25, 1992, petitioner withdrew his certificate of candidacy.
No person elected to any public office shall enter upon the duties of
his office until he has filed the statement of contributions and
expenditures herein required.
In M.R. Nos. 93-2654 and 94-0065 dated November 3, 1993 and

February 13, 1994 respectively, the COMELEC imposed upon
petitioner the fine of Ten Thousand Pesos (P10,000.00) for failure to
file his statement of contributions and expenditures.
The same prohibition shall apply if the political party which

nominated the winning candidate fails to file the statement required
herein within the period prescribed by this Act.
In M.R. No. 94-0594 dated February 24, 1994, the COMELEC

denied the motion for reconsideration of petitioner and deemed final
LAW ON ELECTION
90
Except candidates for elective barangay office, failure to file the

statements or reports in connection with electoral contributions and
expenditures as required herein shall constitute an administrative
offense for which the offenders shall be liable to pay an
administrative fine ranging from One Thousand Pesos ( P1,000.00)
to Thirty Thousand Pesos (P30,000.00), in the discretion of the
Commission.
candidates to file statements. Within five (5) days from the day of
the election, the Law Department of the Commission, the regional
election director of the National Capital Region, the provincial
election supervisors and the election registrars shall advise in
writing by personal delivery or registered mail all candidates who
filed their certificates of candidacy with them to comply with their
obligation to file their statements of contributions and expenditures
in connection with the elections. Every election registrar shall also
advise all candidates residing in his jurisdiction to comply with said
obligation (Emphasis supplied).
The fine shall be paid within thirty (30) days from receipt of notice
of such failure; otherwise, it shall be enforceable by a writ of
execution issued by the Commission against the properties of the
offender.
Sec. 17. Effect of failure to file statement. (a) No person elected to

any public office shall enter upon the duties of his office until he has
filed the statement of contributions and expenditures herein
required.
It shall be the duty of every city or municipal election registrar to

advise in writing, by personal delivery or registered mail, within five
(5) days from the date of election all candidates residing in his
jurisdiction to comply with their obligation to file their statements of
contributions and expenditures.

nominated the winning candidates fails to file the statement required
within the period prescribed by law.
For the commission of a second or subsequent offense under this

Section, the administrative fine shall be from Two Thousand Pesos
(P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the discretion
of the Commission. In addition, the offender shall be subject to
perpetual disqualification to hold public office (Emphasis supplied).
(b) Except candidates for elective barangay office, failure to file

statements or reports in connection with the electoral contributions
and expenditures as required herein shall constitute an
administrative offense for which the offenders shall be liable to pay
an administrative fine ranging from One Thousand Pesos (P1,000)
to Thirty Thousand Pesos (P30,000), in the discretion of the
Commission.
To implement the provisions of law relative to election contributions

and expenditures, the COMELEC promulgated on January 13, 1992
Resolution No. 2348 (Re: Rules and Regulations Governing
Electoral Contributions and Expenditures in Connection with the
National and Local Elections on
May 11, 1992). The pertinent provisions of said Resolution are:
offender.
Sec. 13. Statement of contributions and expenditures: Reminders to
LAW ON ELECTION
91

section, the administrative fine shall be from Two Thousand Pesos
(P2,000) to Sixty Thousand Pesos (P60,000), in the discretion of the
Commission. In addition, the offender shall be subject to perpetual
disqualification to hold public office.
administration of all laws and regulations relative to the conduct of

an election, plebiscite, initiative, referendum, and recall (The
Constitution of the Republic of the Philippines, Art. IX(C), Sec.
2[1]), issued Resolution No. 2348 in implementation or
interpretation of the provisions of Republic Act No. 7166 on
election contributions and expenditures. Section 13 of Resolution
No. 2348 categorically refers to "all candidates who filed their
certificates of candidacy."
Petitioner argues that he cannot be held liable for failure to file a

statement of contributions and expenditures because he was a "noncandidate," having withdrawn his certificates of candidacy three
days after its filing. Petitioner posits that "it is . . . clear from the law
that candidate must have entered the political contest, and should
have either won or lost" (Rollo, p. 39).
Furthermore, Section 14 of the law uses the word "shall." As a

general rule, the use of the word "shall" in a statute implies that the
statute is mandatory, and imposes a duty which may be enforced ,
particularly if public policy is in favor of this meaning or where
public interest is involved. We apply the general rule (Baranda v.
Gustilo, 165 SCRA 757 [1988]; Diokno v. Rehabilitation Finance
Corporation, 91 Phil. 608 [1952]).
Petitioner's argument is without merit.

Section 14 of R.A. No. 7166 states that "every candidate" has the
obligation to file his statement of contributions and expenditures.
The state has an interest in seeing that the electoral process is clean,
and ultimately expressive of the true will of the electorate. One way
of attaining such objective is to pass legislation regulating
contributions and expenditures of candidates, and compelling the
publication of the same. Admittedly, contributions and expenditures
are made for the purpose of influencing the results of the elections
(B.P. Blg. 881, Sec. 94; Resolution No. 2348, Sec. 1). Thus, laws
and regulations prescribe what contributions are prohibited (B.P.
Blg. 881, Sec. 95, Resolution No. 2348, Sec. 4), or unlawful (B.P.
Blg. 881, Sec. 96), and what expenditures are authorized (B.P. Blg.
881, Sec. 102; R.A. No. 7166, Sec. 13; Resolution No. 2348, Sec. 7)
or lawful (Resolution No. 2348, Sec. 8).
Well-recognized is the rule that where the law does not distinguish,
courts should not distinguish, Ubi lex non distinguit nec nos
distinguere debemos (Philippine British Assurance Co. Inc. v.
Intermediate Appellate Court, 150 SCRA 520 [1987]; cf Olfato v.
Commission on Elections, 103 SCRA 741 [1981]). No distinction is
to be made in the application of a law where none is indicated (Lo
Cham v. Ocampo, 77 Phil. 636 [1946]).
In the case at bench, as the law makes no distinction or qualification
as to whether the candidate pursued his candidacy or withdrew the
same, the term "every candidate" must be deemed to refer not only
to a candidate who pursued his campaign, but also to one who
withdrew his candidacy.
Such statutes are not peculiar to the Philippines. In "corrupt and

illegal practices acts" of several states in the United States, as well
as in federal statutes, expenditures of candidates are regulated by
The COMELEC, the body tasked with the enforcement and

LAW ON ELECTION
92
requiring the filing of statements of expenses and by limiting the

amount of money that may be spent by a candidate. Some statutes
also regulate the solicitation of campaign contributions (26 Am Jur
2d, Elections 287). These laws are designed to compel publicity
with respect to matters contained in the statements and to prevent,
by such publicity, the improper use of moneys devoted by
candidates to the furtherance of their ambitions (26 Am Jur 2d,
Elections 289). These statutes also enable voters to evaluate the
influences exerted on behalf of candidates by the contributors, and
to furnish evidence of corrupt practices for annulment of elections
(Sparkman v. Saylor [Court of Appeals of Kentucky], 180 Ky. 263,
202 S.W. 649 [1918]).
Lastly, we note that under the fourth paragraph of Section 73 of the

B.P. Blg. 881 or the Omnibus Election Code of the Philippines, it is
provided that "[t]he filing or withdrawal of certificate of candidacy
shall not affect whatever civil, criminal or administrative liabilities
which a candidate may have incurred." Petitioner's withdrawal of his
candidacy did not extinguish his liability for the administrative fine.
WHEREFORE, the petition is DISMISSED.
Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Bellosillo,
Puno, Vitug, Mendoza and Francisco, JJ., concur.
Kapunan, J., is on leave.
State courts have also ruled that such provisions are mandatory as to
the requirement of filing (State ex rel. Butchofsky v. Crawford
[Court of Civil Appeals of Texas], 269 S.W. 2d 536 [1954]; Best v.
Sidebottom, 270 Ky. 423,109 S.W. 2d 826 [1937]; Sparkman v.
Saylor, supra.)
Separate Opinions
MELO, J., dissenting:
The majority opinion is to the effect that every candidate, including
one who has withdrawn his certificate of candidacy, is obliged to file
his statement of contributions and expenditures in line with Section
14 of Republic Act No. 7166 vis-a-vis the pertinent portions of
Comelec Resolution No. 2348. I must concede that the use of the
word "shall" in the main statute as well as the implementing rules
generally suggest mandatoriness as to cover all candidates.
It is not improbable that a candidate who withdrew his candidacy

has accepted contributions and incurred expenditures, even in the
short span of his campaign. The evil sought to be prevented by the
law is not all too remote.
It is notesworthy that Resolution No. 2348 even contemplates the
situation where a candidate may not have received any contribution
or made any expenditure. Such a candidate is not excused from
filing a statement, and is in fact required to file a statement to that
effect. Under Section 15 of Resolution No. 2348, it is provided that
"[i]f a candidate or treasurer of the party has received no
contribution, made no expenditure, or has no pending obligation, the
statement shall reflect such fact."
LAW ON ELECTION
But is an anspirant for public office who had a sudden change of

heart, so to speak, still considered a candidate to begin with? I am of
the impression that he is not and is thus not bound to render an
accounting subsequent to election for the simple reason that the term
'candidate' is used to designate a person who actually submits
himself and is voted for at our election (Santos vs. Miranda, 35 Phil.
643, 648 (1916) citing State vs. Hirsch, 125 Ind., 207; 9 L.R.A. 107;
93
Moreno, Philippine Law Dictionary, 1972 2nd ed., p. 84) Certainly,

one who withdraws his certificate of candidacy 3 days after the
filing thereof, can not be voted for at an election. And considering
the shortness of the period of 3 days from the filing to the
withdrawal of the certificate of candidacy, petitioner cannot be
accused, as indeed there is no such charge, of utilizing his aborted
candidacy for purposes to raise funds or to extort money from other
candidates in exchange for the withdrawal.
shall, within thirty (30) days after the day of the election, file in
duplicate with the offices of the Commission the full, true and
itemized statement of all contributions and expenditures in
connection with the election.
Petitioner argues that he cannot be held liable for failure to file a
statement of contributions and expenditures because he was a "noncandidate," having withdrawn his certificates of candidacy three
days after its filing. Petitioner posits that "it is . . . clear from the law
that candidate must have entered the political contest, and should
have either won or lost"
I, therefore, vote to grant the petition.

Padilla, J., concurs.
JUANITO C. PILAR vs. COMELEC
G.R. No. 115245/ 245 SCRA 759
July 11, 1995
COMELEC denied the motion for reconsideration of petitioner and

deemed final its first decision. Petitioner went to the COMELEC En
Banc (UND No. 94-040), which denied the petition. Hence, this
petition for certiorari.
FACTS:
ISSUE:
This is a petition for certiorari assailing the Resolution of the

COMELEC in UND No. 94-040.
Did Petitioner's withdrawal of his candidacy extinguish his liability

for the administrative fine.
Petitioner Pilar filed his COC for the position of member of the
Sangguniang Panlalawigan of the Province of Isabela. 3 days after,
petitioner withdrew his certificate of candidacy.
HELD:
The COMELEC imposed upon petitioner the fine of P10,000.00 for

failure to file his statement of contributions and expenditures
pursuant to COMELEC Resolution No. 2348, in turn implementing
R.A. No. 7166 which provides that:
Section 14 of R.A. No. 7166 states that "every candidate" has the
obligation to file his statement of contributions and expenditures.
Well-recognized is the rule that where the law does not distinguish,
courts should not distinguish. In the case at bench, as the law makes
no distinction or qualification as to whether the candidate pursued
his candidacy or withdrew the same, the term "every candidate"
must be deemed to refer not only to a candidate who pursued his
The petition is DISMISSED.
Statement of Contributions and Expenditures: Effect of Failure to

File Statement. Every candidate and treasurer of the political party
LAW ON ELECTION
94
campaign, but also to one who withdrew his candidacy.

Furthermore, Section 14 of the law uses the word "shall." As a
general rule, the use of the word "shall" in a statute implies that the
statute is mandatory, and imposes a duty which may be enforced ,
particularly if public policy is in favor of this meaning or where
public interest is involved. We apply the general rule.
filing a statement, and is in fact required to file a statement to that

effect. Under Section 15 of Resolution No. 2348, it is provided that
"[i]f a candidate or treasurer of the party has received no
contribution, made no expenditure, or has no pending obligation, the
statement shall reflect such fact."
Complete provisions (for review)
Also, Section 13 of Resolution No. 2348 categorically refers to "all

candidates who filed their certificates of candidacy. It is not
improbable that a candidate who withdrew his candidacy has
accepted contributions and incurred expenditures, even in the short
span of his campaign. The evil sought to be prevented by the law is
not all too remote.
R.A. No. 7166 entitled "An Act Providing for Synchronized

National and Local Elections and for Electoral Reforms,
Authorizing Appropriations Therefor, and for Other Purposes"
provides as follows:
Section 14- Statement of Contributions and Expenditures: Effect of
Failure to File Statement. Every candidate and treasurer of the
political party shall, within thirty (30) days after the day of the
election, file in duplicate with the offices of the Commission the
full, true and itemized statement of all contributions and
expenditures in connection with the election.
Lastly, we note that under the fourth paragraph of Section 73 of the

B.P. Blg. 881 or the Omnibus Election Code of the Philippines, it is
provided that "[t]he filing or withdrawal of certificate of candidacy
shall not affect whatever civil, criminal or administrative liabilities
which a candidate may have incurred."
NOTES:
No person elected to any public office shall enter upon the duties of
his office until he has filed the statement of contributions and
expenditures herein required.
- Admittedly, contributions and expenditures are made for the

purpose of influencing the results of the elections. The state has an
interest in seeing that the electoral process is clean, and ultimately
expressive of the true will of the electorate. One way of attaining
such objective is to pass legislation regulating contributions and
expenditures of candidates, and compelling the publication of the
same.

nominated the winning candidate fails to file the statement required
herein within the period prescribed by this Act.
Except candidates for elective barangay office, failure to file the
statements or reports in connection with electoral contributions and
expenditures as required herein shall constitute an administrative
offense for which the offenders shall be liable to pay an
administrative fine ranging from One Thousand Pesos ( P1,000.00)
- It is noteworthy that Resolution No. 2348 even contemplates the

situation where a candidate may not have received any contribution
or made any expenditure. Such a candidate is not excused from
LAW ON ELECTION
95
to Thirty Thousand Pesos (P30,000.00), in the discretion of the

Commission.
advise all candidates residing in his jurisdiction to comply with said

obligation (Emphasis supplied).
offender.
Sec. 17. Effect of failure to file statement. (a) No person elected to

any public office shall enter upon the duties of his office until he has
filed the statement of contributions and expenditures herein
required.
It shall be the duty of every city or municipal election registrar to

advise in writing, by personal delivery or registered mail, within five
(5) days from the date of election all candidates residing in his
jurisdiction to comply with their obligation to file their statements of
contributions and expenditures.

nominated the winning candidates fails to file the statement required
within the period prescribed by law.
(b) Except candidates for elective barangay office, failure to file
statements or reports in connection with the electoral contributions
and expenditures as required herein shall constitute an
administrative offense for which the offenders shall be liable to pay
an administrative fine ranging from One Thousand Pesos (P1,000)
to Thirty Thousand Pesos (P30,000), in the discretion of the
Commission.

Section, the administrative fine shall be from Two Thousand Pesos
(P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the discretion
of the Commission. In addition, the offender shall be subject to
perpetual disqualification to hold public office (Emphasis supplied).
COMELEC Resolution No. 2348 (Re: Rules and Regulations
Governing Electoral Contributions and Expenditures in Connection
with the National and Local Elections on May 11, 1992)
offender.
Sec. 13. Statement of contributions and expenditures: Reminders to

candidates to file statements. Within five (5) days from the day of
the election, the Law Department of the Commission, the regional
election director of the National Capital Region, the provincial
election supervisors and the election registrars shall advise in
writing by personal delivery or registered mail all candidates who
filed their certificates of candidacy with them to comply with their
obligation to file their statements of contributions and expenditures
in connection with the elections. Every election registrar shall also
LAW ON ELECTION

section, the administrative fine shall be from Two Thousand Pesos
(P2,000) to Sixty Thousand Pesos (P60,000), in the discretion of the
Commission. In addition, the offender shall be subject to perpetual
disqualification to hold public office.
96

SUPREME COURT
Manila
EN BANC
G.R. No. 87743 August 21, 1990
ROBERT F. ONG, petitioner
vs.
MARIA TERESITA HERRERA-MARTINEZ, THE CITY
COUNCIL OF MANILA and THE CITY TREASURER OF
MANILA, respondents.
LAW ON ELECTION
97
Claro Jordan M. Santamaria for petitioner.
petitioner. Likewise, in his lst Indorsement of March 13, 1989, the

Undersecretary of Local Government forwarded petitioner's
appointment to Presiding Officer of the City Council Danilo Lacuna.
F.B. Santiago, Nalus, Magtalas, Catalan & Associates for

respondents.
In the regular session of the City Council held on March 9, 1989,

said Council, acting on the letter of the Secretary of Local
Government dated February 9, 1989 informing them of the four
appointments including that of petitioner, moved to exclude
petitioner and the other appointees from the session hall. In the
subsequent session of the Council on March 14, 1989, petitioner and
his co-appointees were formally excluded from the session hall with
sixteen (16) councilors voting for such exclusion and none against
it, with the rest of the Council members abstaining.
Nemesio C. Garcia, Jr. for City Council.

PARAS, J.:
Petitioner Robert F. Ong assails the appointment and assumption of
duties as Councilor in the City Council of Manila of respondent Ma.
Teresita Herrera-Martinez, in place of deceased Councilor Saturnino
Herrera who represented the Third District of Manila.
The records show that respondent Martinez went through the legal
formalities or standard procedure prior to her appointment to the
vacated position subject of this. controversy.
It appears that Saturnino Herrera, who was the father of respondent

Martinez, was one of the Liberal Party candidates duly elected as
Councilor for Manila's Third District in the local elections of
January 18, 1988. He performed his duties as such councilor until
his death on October 14, 1988, thus leaving the position open for the
appointment of a qualified replacement from the same political party
where the deceased councilor belonged.
Thus, on November 4, 1988, nine out of the eleven incumbent LP

Councilors in the City Council endorsed the appointment of
respondent per their resolution. This resolution was forwarded to the
Office of the Chairman of the Liberal Party, Manila Chapter.
Petitioner, who was a defeated candidate of the Liberal Party in the

Third District of Manila, on the strength of an indorsement by the
Treasurer of the said party in the district which was allegedly
supported by 80% of the ward leaders of the party of the same
district as embodied in their resolution, was appointed on February
9, 1989 as member of the Sangguniang Panglunsod (City Council)
by the Secretary of Local Government to fill the vacancy created by
the late Councilor Saturnino Herrera. On the same date, petitioner
took his oath of office as such councilor after which the Secretary of
Local Government informed Mayor Gemiliano Lopez, Jr. and ViceMayor and Presiding Officer Danilo Lacuna of the appointment of
LAW ON ELECTION
On March 1, 1989, aforesaid Chairman, in turn, nominated

respondent for appointment per his letter-nomination to President
Corazon Aquino thru the Secretary of Local Government. On March
8, 1989, Senate President Jovito Salonga as National Head of the
Liberal Party was furnished with a copy of this letter-nomination.
On March 13, 1989, Congressman Leonardo Fuguso as President of
the LP Third District Chapter also nominated respondent to National
President Salonga of the Party. President Salonga, in turn,
nominated respondent to Secretary Luis Santos of the Department of
98
Local Government pursuant to Section 50 of the Local Government

Code.
2. Respondent Martinez is not a member of the Liberal Party and

cannot be appointed to the position of Councilor, a vacancy created
by the death of a member of said Party.
On March 17, 1989, Secretary Santos, acting for the President,

issued an appointment to respondent.
3. Petitioner's appointment is valid, complete and beyond recall.
Then on March 21, 1989, the first session day after respondent's
appointment, the City Council, by a vote of twenty-four members in
favor with no member opposing recognized her as member of said
Council.
4. Petitioner is entitled to the position held by respondent.

Respondent, on the other hand, argues:
1. Petitioner misled the Court in claiming that he has a right to the
contested position. His appointment was indorsed only by the
Treasurer of the LP Chapter, 3rd District of Manila. The Treasurer's
indorsement was not known nor authorized by the head of the LP in
said district. Neither was the nomination brought to the attention of
the Chairman of the LP, Manila Chapter. The proper procedure was
not observed by petitioner. The unauthorized action of petitioner
cannot be cured or ratified by an alleged resolution of 80% of ward
leaders and which resolution was adopted long after the appointment
of petitioner. Hence, petitioner's appointment was void from the
very beginning for lack of authority of the Treasurer who nominated
him.
Finally, the Presiding Officer of the City Council directed its

Secretariat to include the name of respondent in the payroll of the
City Council.
Respondent thus assumed and performed her duties as Councilor for
the Third District of Manila until the restraining order of the Court
issued on April 20, 1989 was received by respondent.
This petition now seeks to annul the appointment of respondent
Martinez and to declare petitioner to be the holder of the position of
Councilor in place of deceased Saturnino Herrera.
Contrary to petitioner's claim, respondent also contends that the

former has not assumed office; neither has he exercised or
performed the functions of the position because he was prevented
from doing so by the outright refusal of the City Council to
recognize his appointment.
Petitioner anchors his appeal on the following grounds:

1. The Secretary of the Department of Local Government, in
appointing respondent Martinez on March 17, 1989, violated the
election ban on appointments under Res. No. 2054 of the Comelec
dated December 7, 1988 since her appointment was not cleared for
exemption from the election ban and, therefore, the same was made
beyond and in excess of the Secretary's authority and by reason of
which, the appointment is null and void.
LAW ON ELECTION
2. Petitioner has no right to the position and for which reason, he

lacks the legal personality to institute the present petition for quo
warranto, mandamus and prohibition.
While petitioner claims that he took his oath on February 9, 1989
99
which was a calculated move to avoid the election ban on

appointments, he used a Residence Certificate issued on February
22, 1989 only. This means that he could not have taken his alleged
oath before the issuance of the residence certificate.
from the political party of the sangguniang member who caused the
vacancy, and shall serve the unexpired term of the vacant office.
(Emphasis supplied)
Since deceased Councilor Saturnino Herrera who had caused the
contested vacancy comes from the Liberal Party, it follows that his
mode of replacement should be governed by the standing rules of
the aforenamed Party.
3. The appointment of respondent possesses all the requisites of a

valid appointment according to legal and regular procedures. She
avers that her appointment was indorsed by nine out of eleven LP
incumbent councilors and that her nomination was favorably
indorsed by the Liberal Party hierarchy from the Chairman of the
Third District, thru the Chairman of the Manila Chapter up to the
National President of the LP; and, that she was duly appointed on
the basis of the series of nominations of the LP hierarchy.
Thus, We quote the pertinent sections of the 1967 Liberal Party

Revised Rules (1971 Reprint furnished by the Comelec):
4. The appointment of respondent is not covered by the election ban

contemplated under Sec. 261 (g) of the Omnibus Election Code.
Rule 32. Approval of Resolution of District, Provincial, City of

Municipal Government. Resolutions adopted by provincial, district,
city or municipal committee shall not be final unless approved by
the National Directorate, the Executive Committee, or the Party
President. (Under Chapter Ill on The Manila City Special Rules)
The case for respondent appears meritorious. Respondent had gone

through the regular and standard nomination process which had
been officially acknowledged by the Secretary of Local
Government.
Thus, too, Section A (3) of Rule 10 of the Liberal Party Rules (on
the Powers of the National Directorate) provides:
3) To choose and proclaim official candidates of the Party for
provincial positions, and whenever necessary, convenient or proper,
also for Municipal and City positions, in accordance with the
requirements of these Rules.
Sec. 50 of the Local Government Code specifically provides:

In case of permanent vacancy in the sangguniang panlalawigan,
sangguniang panglungsod, sangguniang bayan or sangguniang
barangay, the President of the Philippines, upon recommendation of
the Minister of Local Government, shall appoint a qualified person
to fill the vacancy in the sangguniang panlalawigan and
sangguniang panglunsod of highly urbanized and component cities;
the governor, in the case of sangguniang bayan members; or the city
or municipal mayor, in the case of sangguniang barangay members.
Except for the sangguniang barangay, the appointee shall come
LAW ON ELECTION
Conformably with the aforequoted provisions of the Liberal Party

Rules, all resolutions, which may include resolutions nominating
replacements for deceased city councilors, should first be approved
either by the National Directorate, the Executive Committee or the
Party President in order that said resolutions could be considered
final and valid.
100
Logically and by analogy, the National Directorate or in its stead,

the Executive Committee or the Party President may choose and
nominate the party's proposed appointee, from among its members,
to the position vacated by a deceased city councilor.
of Manila, and pursuant to the provisions of existing laws, you are

hereby appointed member of the Sangguniang Panglungsod, City of
Manila, Vice Councilor Saturnino C. Herrera. (Emphasis supplied)
Notably, respondent's appointment was accepted or recognized by
the City Council in its session of March 21, 1989. The minutes of
said session reveal that twenty-four (24) councilors voted to accept
the appointment of respondent and not a single member objected to
or opposed the acceptance. Right then and there, the Presiding
Officer announced the acceptance of respondent's appointment and
the Chair directed the Secretariat to include her name as a new
member of the City Council.
Correspondingly, We quote hereunder the body of the letternomination of the then LP National President Jovito R. Salonga
explicitly manifesting the full support of the party hierarchy for
herein respondent. Thus
I hereby nominate in behalf of the Liberal Party of which I am the
incumbent President Ms. Maria Teresita Herrera-Martinez, to take
the place of Councilor Saturnino C. Herrera of the Liberal Party who
passed away on October 14,1988.
In the case of petitioner, however, a very different scenario took

place. The letter dated February 9, 1989 of Secretary Luis Santos
informing Vice-Mayor and Presiding Officer Lacuna that he had
appointed petitioner and three other appointees, carried a request
that due recognition be accorded to them, particularly petitioner as
member of the Council. Petitioner and the other appointees, as per
minutes of the Council's session of March 9, 1989, were excluded
from the session hall by reason of the seconded motion of the
Majority Floor Leader. In the subsequent session of the Council on
March 14, 1989, petitioner and his co-appointees were formally
excluded from the session hall when sixteen (1 6) members of the
Council voted in favor of their exclusion and no one against it.
Significantly, such exclusion meant that the City Council refused to
recognize their appointments.
Ms. Martinez is likewise the recommendee of the Liberal Party,

Manila Chapter headed by former Assemblyman Lito Atienza. She
is also recommended by Congressman Leonardo Fuguso. Please be
advised that the Liberal Party, under which the late Councilor
Saturnino C. Herrera was elected, has no nominee to the vacated
position other than Ms. Maria Teresita Herrera-Martinez. This is
also to serve notice that no other person is authorized to nominate
any LP member to any vacancy in the City Council of Manila."
(Emphasis supplied)
Acting on the solid recommendation of the LP hierarchy, from the
district level up to the national level, the Secretary of Local
Government correspondingly issued the letter-appointment to
respondent Martinez, the pertinent portion of which reads as
follows:
As a conclusive confirmation of the non-recognition of petitioner's

defective appointment, the Secretary of Local Government recalled
the former's appointment in his letter of March 17, 1989. The letter
thus reads:
Upon the recommendation of the President of the Liberal Party and

the Chapter President of the Liberal Party, 3rd District of the City
LAW ON ELECTION
101
Dear Mr. Ong:
influence the election.
In connection with our letter of February 9,1989, appointing you as

Sangguniang Panglunsod member of the City of Manila as a
consequence of the death of Councilor Saturnino C. Herrera, please
be informed that we are recalling said appointment it appearing that
you were not recommended for the position by the appropriate
leader of the Liberal Party as mandated by the sub-section b(1)
Rule XIX of the, Rules and Regulations Implementing the Local
Government Code(Batas Pambansa Blg. 337). (Emphasis supplied)
As an exception to the foregoing provisions, a new employee may

be appointed in case of urgent need: Provided, however, That notice
of the appointment shall be given to the Commission within three
days from the date of the appointment. Any appointment or hiring in
violation of this provision shall be null and void.
Both petitioner and respondent have invoked the election ban

imposed under Sec. 261 (g) of the Omnibus Election Code. The
election ban covered the period from February 11 to March 27, 1989
by reason of the Barangay election held on March 28, 1989. Both
parties have capitalized on the prohibitive provision for the purpose
of having their respective appointments declared illegal or null and
void.
The permanent vacancy for councilor exists and its filling up is

governed by the Local Government Code while the appointment
referred to in the election ban provision is covered by the Civil
Service Law.
The aforequoted provision does not apply to both assailed

appointments because of the following reason:
For having satisfied the formal requisites and procedure for

appointment as Councilor, which is an official position outside the
contemplation of the election ban, respondent's appointment is
declared valid.
Sec. 261 (g) of the Omnibus Election Code provides thus:

(g) Appointment of new employees, creation of new position,
promotion, or giving salary increases. During the period of fortyfive days before a regular election and thirty days before a special
election, (1) any head, official or appointing officer of a government
office, agency or instrumentality, whether national or local,
including government-owned or controlled corporations, who
appoints or hires any new employee whether provisional, temporary
or casual, or creates and fills any new position, except upon prior
authority of the Commission. The Commission shall not grant the
authority sought unless, it is satisfied that the position to be filled is
essential to the proper functioning of the office or agency concerned,
and that the position shall not be filled in a manner that may
LAW ON ELECTION
The issue on the alleged discrepancy between the dates of

petitioner's oath and his residence certificate need not be tackled
now because it will not anymore affect the recalled appointment of
petitioner. If ever, the matter casts a doubt on petitioner's credibility
and honesty.
WHEREFORE, the petition is hereby DISMISSED, and the
temporary restraining order is correspondingly LIFTED.
SO ORDERED.
102
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz,

Feliciano, Gancayco, Padilla, Cortes, Grio-Aquino, Medialdea
and Regalado, JJ., concur.
petitioners Reynato Baytan, Reynaldo Baytan and Adrian Baytan

("petitioners" for brevity).
The Antecedents
Bidin and Sarmiento, JJ., are on leave,

On June 15, 1997, petitioners were on their way to register for the
May 1998 elections when they met the newly elected Barangay
Captain, Roberto Ignacio ("Ignacio" for brevity), in Barangay 18,
Zone II of Cavite City. Ignacio led petitioners to register in Precinct
No. 83-A of Barangay 18. Petitioners registered in this precinct as
evidenced by Voters Registration Records Nos. 41762473,
41762472 and 41762470.

SUPREME COURT
Manila
EN BANC
G.R. No. 153945
February 4, 2003
When petitioners returned home, they wondered why the registrants

in this precinct looked unfamiliar to them. This prompted petitioners
to return to the registration center to study the precinct map of
Barangay 18. They then realized that their residence is situated
within the jurisdiction of Barangay 28. Thus, petitioners proceeded
to Precinct 129-A of Barangay 28 and registered anew on June 22,
1997 as evidenced by Voters Registration Records Nos. 42662969,
42662968 and 42662917.
REYNATO BAYTAN, REYNALDO BAYTAN and ADRIAN

BAYTAN, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
DECISION
CARPIO, J.:
Subsequently, petitioners sent a letter dated August 21, 1997 to

former COMELEC Assistant Executive Director Jose Pio O. Joson
and furnished a copy thereof to COMELEC Registrar Francisco
Trias. In this letter, petitioners requested for advice on how to cancel
their previous registration. They also explained the reason and
circumstances of their second registration and expressed their
intention to redress the error.
The Case
Challenged in this petition for certiorari1 with prayer for temporary
restraining order and preliminary injunction is the Resolution dated
June 3, 20022 of the Commission on Elections ("COMELEC" for
brevity) en banc in E.O. Case No. 97-503. In its assailed Resolution,
the COMELEC en banc denied the motion to reconsider Minute
Resolution No. 00-2281 dated November 9, 2000 3 ordering the Law
Department to file criminal cases for "double registration" against
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On September 16, 1997, the Election Officer of Cavite City

forwarded copies of petitioners Voters Registration Records to the
Provincial Election Supervisor, Atty. Juanito V. Ravanzo ("Ravanzo"
103
for brevity), for evaluation. Ravanzo endorsed the matter to the

Regional Director for prosecution. Eventually, the Law Department
endorsed the case to Ravanzo for resolution.
3. Taking cognizance of the case in the first instance in violation of

Section 3, Article IX-C of the Constitution.
In sum, petitioners insist they are innocent of any wrongdoing in
their act of registering twice on different days in two different
precincts. Petitioners argue that they did not intend to perpetrate the
act prohibited, and therefore they should be exculpated. They claim
honest mistake and good faith in registering twice. Petitioners claim
they made the first registration because of the intervention and
instigation of Ignacio.
On January 10, 1998, Ravanzo recommended filing an information

for double registration against petitioners. In an en banc meeting
held on November 09, 2000, the COMELEC in its Minute
Resolution No. 00-2281 affirmed the recommendation of Ravanzo.
Petitioners moved for reconsideration. The COMELEC en banc
denied the motion and disposed as follows:
"WHEREFORE, premises considered, the En Banc resolution dated
November 9, 2000 is hereby AFFIRMED. The Law Department is
hereby directed to file the proper information against respondents
for violation of Art. XXII, Sec. 261, par. (y) sub-par. (5) of the
Omnibus Election Code."
Petitioners theorize that their August 21, 1997 letter to the election
registrar of Cavite City informing him of the lapse and asking how
to rectify the same constitutes substantial compliance with the
Omnibus Election Codes requirement of cancellation of prior
registration. They further implore a liberal construction of the laws
on election offenses since almost five years had lapsed from the date
of the commission of the offense on June 15, 1997. They claim the
case is about to prescribe under the Election Code.
Hence, the instant petition.

The Issues
Lastly, petitioners fault the COMELEC en banc for assuming

original jurisdiction over the case in contravention of Section 3,
Article IX-C of the Constitution. Petitioners argue that this
constitutional provision requires that election cases must first be
heard and decided by a Division before assumption of jurisdiction
by the COMELEC en banc.
Petitioners contend that the COMELEC en banc committed grave

abuse of discretion amounting to lack or excess of jurisdiction in
1. Recommending the prosecution of petitioners for double
registration despite clear and convincing evidence on record that
they had no intention of committing said election offense;
The Courts Ruling
2. Not considering the letter dated August 21, 1997 addressed to the
COMELEC Assistant Director of Cavite City as substantial
compliance with the requirement of the law for cancellation of
previous registration; and
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The petition is bereft of merit.

First and Second Issues: Whether the criminal cases should be
dismissed on the ground of lack of intent and substantial compliance
104
with the requirement of cancellation of previous registration.
discover who may be charged with a crime, its function being

merely to determine probable cause.5 All that is required in the
preliminary investigation is the determination of probable cause to
justify the holding of petitioners for trial. By definition, probable
cause is
In Minute Resolution No. 00-2281 dated November 9, 2000, the

COMELEC en banc affirmed the recommendation of the
investigating officer. The COMELEC thus directed its Law
Department to file the necessary information against petitioners for
violation of Article XXII, SEC. 261 (y) (5) of the Election Code
which reads:
"x x x a reasonable ground of presumption that a matter is, or may

be, well founded x x x such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and prudence
to believe or entertain an honest or strong suspicion that a thing is
so. The term does not mean `actual or positive cause nor does it
import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does not require
an inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a
trial for the reception of evidence of the prosecution in support of
the charge."6
"SEC. 261. Prohibited Acts. The following shall be guilty of an

election offense:
(y) On Registration of Voters:
(5) Any person who, being a registered voter, registers anew without
filing an application for cancellation of his previous registration."
Petitioners filed a motion for reconsideration to which the
COMELEC en banc issued the assailed Resolution dated June 3,
2002 affirming the Minute Resolution.
There is no question that petitioners registered twice on different

days and in different precincts without canceling their previous
registration. Aside from this, the COMELEC found certain
circumstances prevailing in the case sufficient to warrant the finding
of probable cause. The COMELEC noted that petitioners wrote
down their address in Precinct No. 83-A of Barangay 18 as No. 709
T. Gomez Extension St., Barangay 18-Maya, Cavite City. However,
in Precinct No. 129-A of Barangay 28, petitioners registered as
residents of No. 709 Magcawas St., Barangay 28-Taurus, Caridad,
Cavite City. The COMELEC noted further that the affidavits
submitted by petitioners contained glaring inconsistencies.
Petitioners claimed that Ignacio led them to the wrong precinct to
register. However, Ignacios affidavit stated that while he led them
to the voting precinct of Barangay 18, he immediately left the area
The grant by the Constitution to the COMELEC of the power to

investigate and prosecute election offenses is intended to enable the
COMELEC to assure the people of "free, orderly, honest, peaceful
and credible elections." This grant is an adjunct to the COMELECs
constitutional duty to enforce and administer all election laws.
Failure by the COMELEC to exercise this power could result in the
frustration of the true will of the people and make an idle ceremony
of the sacred right and duty of every qualified citizen to vote.4
Petitioners lose sight of the fact that the assailed resolutions were
issued in the preliminary investigation stage. A preliminary
investigation is essentially inquisitorial and is only the means to
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105
not knowing that petitioners registered in the wrong barangay.

Contrary to petitioners sworn statements, Aurora Baytan, mother of
petitioners, had another version. She claimed in her affidavit that on
June 15, 1997, Ignacio went to their house to inform them about the
redefinition of their barangays territorial jurisdiction. Right then
and there, Ignacio brought her sons to Barangay 18 to register.
investigate and, where appropriate, prosecute cases for violation of

election laws, including acts or omissions constituting election
frauds, offenses and malpractices.9 Generally, the Court will not
interfere with such finding of the COMELEC absent a clear showing
of grave abuse of discretion. This principle emanates from the
COMELECs exclusive power to conduct preliminary investigation
of all election offenses punishable under the election laws and to
prosecute the same, except as may otherwise be provided by law.10
The COMELEC also pointed out that since "double registration" is

malum prohibitum, petitioners claim of lack of intent to violate the
law is inconsequential. Neither did the COMELEC consider
petitioners letter dated August 22, 1997 as an application to cancel
their previous registration. The COMELEC explained that this letter
was sent after their second registration was accomplished and after
the election officer of Cavite City had already reported their act of
double registration to a higher official.
We also cannot accept petitioners plea for a liberal construction of

the laws on the ground of prescription. Prescription of the crime or
offense is the forfeiture or loss of the right of the State to prosecute
the offender after the lapse of a certain time.11
Section 267 of the Election Code provides that "election offenses
shall prescribe after five years from the date of their commission."
In this case, the offense of double registration allegedly occurred on
June 22, 1997 when petitioners registered for a second time in a
different precinct without canceling their previous registration. At
this point, the period of prescription for the alleged offense started to
run.
All told, a reasonably prudent man would readily conclude that there
exists probable cause to hold petitioners for trial for the offense of
double registration.
Moreover, petitioners claims of honest mistake, good faith and
substantial compliance with the Election Codes requirement of
cancellation of previous registration are matters of defense best
ventilated in the trial proper rather than at the preliminary
investigation.7 The established rule is that a preliminary
investigation is not the occasion for the full and exhaustive display
of the parties evidence. It is for the presentation of such evidence
only as may engender a well-grounded belief that an offense has
been committed and the accused is probably guilty thereof.8
However, prescription is interrupted when proceedings are instituted

against the offender. Specifically, the period of prescription is
interrupted by the filing of the complaint even if it be merely for
purposes of preliminary examination or investigation.12
The COMELEC initiated the complaint for double registration
against petitioners motu proprio under Sections 3,13414 and 5,15 Rule
34 of the 1993 COMELEC Rules of Procedure. On September 16,
1997, the Election Officer of Cavite City forwarded copies of
petitioners Voters Registration Records for evaluation to Atty.
Juanito V. Ravanzo, Provincial Election Supervisor of Cavite City,
It is also well-settled that the finding of probable cause in the

prosecution of election offenses rests in the COMELECs sound
discretion. The COMELEC exercises the constitutional authority to
LAW ON ELECTION
106
who was also tasked to investigate the case. Ravanzo endorsed the
matter to the Regional Director for prosecution. The Regional
Director forwarded the case to the Law Department and the latter reendorsed the same to the office of Ravanzo for resolution. A
preliminary investigation hearing was conducted on January 19,
1998 where petitioners were instructed to submit their counteraffidavits. After the preliminary investigation and based on the
affidavits and other evidence submitted in the case, Ravanzo
recommended the prosecution of petitioners for the offense of
double registration. Ineluctably, the prescriptive period of the
offense was interrupted upon the COMELECs initiation of
proceedings against petitioners and remains tolled pending the
termination of the case.
nullify the proceedings conducted and orders issued by the

COMELEC en banc in E.O. Case No. 97-503. Petitioners cite
Sarmiento v. Comelec17 and Zarate v. Comelec18 to support their
stand that the COMELEC en banc acted without jurisdiction or with
grave abuse of discretion when it assumed original jurisdiction over
the case without first referring the same to any of its divisions. In
Sarmiento and Zarate, the Court similarly held that "election cases
must first be heard and decided by a Division of the Commission,"
and that the "Commission, sitting en banc, does not have the
authority to hear and decide the same at the first instance."
In its Comment for the COMELEC, the Solicitor General points out
that the rulings in Sarmiento and Zarate were clarified in Canicosa v.
COMELEC19 to mean that
The liberal construction of punitive laws in relation to the

prescription of offenses cannot be invoked to prejudice the interest
of the State to prosecute election offenses, especially those which
the COMELEC described as "ruffling the electoral system."16
"[I]t is only in the exercise of its adjudicatory or quasi judicial

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."
Third Issue: Whether the COMELEC en bancs assumption of

original jurisdiction over the case violated the Constitution.
The Solicitor General contends that the conduct of a preliminary

investigation before the filing of an information in court does not in
any way adjudicate with finality the rights and liabilities of the
parties investigated. A preliminary investigation does not make any
pronouncement as to the guilt or innocence of the party involved.
Hence, a preliminary investigation cannot be considered a judicial or
quasi-judicial proceeding required to be heard by the Division in the
first instance.
Petitioners rely on Section 3, Article IX-C of the 1987 Constitution

which states:
"Sec. 3. The Commission on Elections may sit en banc or in two
divisions, and shall promulgate its rules of procedure in order to
expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall
be decided by the Commission en banc."
On the other hand, petitioners countered that in Cruz v. People, 20 the

Court held that the conduct of a preliminary investigation "is a
judicial or quasi-judicial proceeding since there is opportunity to be
heard and for the production and weighing of evidence and a
Petitioners assert that this constitutional provision serves as basis to
LAW ON ELECTION
107
decision is rendered thereon."
The COMELECs exercise of its quasi-judicial powers is subject to

Section 3 of Article IX-C which expressly requires that all election
cases, including pre-proclamation controversies, shall be decided by
the COMELEC in division, and the motion for reconsideration shall
be decided by the COMELEC en banc. It follows, as held by the
Court in Canicosa,23 that the COMELEC is mandated to decide
cases first in division, and then upon motion for reconsideration en
banc, only when the COMELEC exercises its quasi-judicial powers.
Under Section 2, Article IX-C of the 1987 Constitution, the

COMELEC exercises both administrative and quasi-judicial powers.
The COMELECs administrative powers are found in Section 2 (1),
(3), (4), (5), (6), (7), (8), and (9) of Article IX-C. 21 The 1987
Constitution does not prescribe how the COMELEC should exercise
its administrative powers, whether en banc or in division. The
Constitution merely vests the COMELECs administrative powers in
the "Commission on Elections," while providing that the
COMELEC "may sit en banc or in two divisions." Clearly, the
COMELEC en banc can act directly on matters falling within its
administrative powers. Indeed, this has been the practice of the
COMELEC both under the 1973 and 1987 Constitutions.22
The COMELEC is empowered in Section 2(6), Article IX-C of the

1987 Constitution to "prosecute cases of violations of election
laws." The prosecution of election law violators involves the
exercise of the COMELECs administrative powers. Thus, the
COMELEC en banc can directly approve the recommendation of its
Law Department to file the criminal information for double
registration against petitioners in the instant case. There is no
constitutional requirement that the filing of the criminal information
be first decided by any of the divisions of the COMELEC.
On the other hand, the COMELECs quasi-judicial powers are found

in Section 2 (2) of Article IX-C, to wit:
"Section 2. The Commission on Elections shall exercise the
following powers and functions:
In sum, the second sentence of Section 3, Article IX-C of the 1987

Constitution is not applicable in administrative cases, like the instant
case where the COMELEC is determining whether probable cause
exists to charge petitioners for violation of the provision of the
Election Code prohibiting double registration.
xxx
(2) Exercise exclusive original jurisdiction over all contests relating
to the elections, returns, and qualifications of all elective regional,
provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial
courts of general jurisdiction, or involving elective barangay
officials decided by trial courts of limited jurisdiction.
Indeed, the COMELEC acted in accordance with Section 9(b), Rule

34 of the 1993 COMELEC Rules of Procedure governing the
prosecution of election offenses in meeting en banc in the first
instance and acting on the recommendation of Investigating Officer
Ravanzo to file charges against petitioners. The rule reads:
Decisions, final orders, or rulings of the Commission on election

contests involving elective municipal and barangay offices shall be
final, executory, and not appealable."
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"SEC. 9. Duty of the Law Department, State Prosecutor,

Provincial or City Fiscal Upon Receipt of Records. x x x
108
(b). In cases investigated by the lawyers or the field personnel of the

Commission, the Director of the Law Department shall review and
evaluate the recommendation of said legal officer, prepare a report
and make a recommendation to the Commission affirming,
modifying or reversing the same which shall be included in the
agenda of the succeeding meeting en banc of the Commission. If
the Commission approves the filing of an information against the
respondent/s, the Director of the Law Department shall prepare and
sign the information for immediate filing with the appropriate
court." (Emphasis supplied)
Baytan vs. COMELECG.R. No. 153945 February 4, 2003

CARPIO, J.:
FACTS:
Petitioners, Reynato Baytan, Reynaldo Baytan and Adrian
Baytanwere on their way to register for the May 1998 elections
when they met the newly elected Barangay Captain, Roberto
Ignacio, in Barangay 18, Zone II of Cavite City, who led them to
register in Precinct No. 83-A of Barangay 18.Upon realizing that
their residence is situated within the jurisdiction of Barangay 28 not
Barangay 18, petitioners proceeded to Precinct 129-A of Barangay
28 and registered anew.Subsequently, petitioners sent a letter to
former COMELEC Assistant Executive Director Jose Pio O. Joson
requesting for advice on how to cancel their previous
registration.Petitioners Voters Registration Records were forwarded
to the Provincial Election Supervisor, Atty. Juanito V. Ravanzo, for
evaluation, who,subsequently, recommended filing an information
for double registration against petitioners. The COMELEC affirmed
Ravanzos resolution. Petitioners moved for reconsideration, which,
was denied by COMELEC en banc.Hence, this petition.
Minute Resolution No. 00-2281 was issued during the en banc

meeting held on November 9, 2000 to resolve the recommendation
of Ravanzo in the case.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ.,
concur.
ISSUE:
Whether COMELEC acted with grave abuse of discretion when it
recommended the prosecution of petitioners for double registration
despite lack of intent and substantial compliance with the
requirement of cancellation of previous registration.
HELD: No. There is no question that petitioners registered twice on
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109
different days and in different precincts without canceling their

previous registration.Since "double registration" is malum
prohibitum, petitioners claim of lack of intent to violate the law is
inconsequential. Neither is the letter to Joson an application to
cancel their previous registration. This letter was sent after their
second registration was accomplished and after the election officer
of Cavite City had already reported their act of double registration to
a higher official.Moreover, petitioners claims of honest mistake,
good faith and substantial compliance with the Election Codes
requirement of cancellation of previous registration are matters of
defense best ventilated in the trial proper rather than at the
preliminary investigation.The established rule is that a preliminary
investigation is not the occasion for the full and exhaustive display
of the parties evidence. It is for the presentation of such evidence
only as may engender a well-grounded belief that an offense has
been committed and the accused is probably guilty thereof.

SUPREME COURT
Manila
EN BANC
G.R. No. 162203
April 14, 2004
AKLAT-ASOSASYON PARA SA KAUNLARAN NG LIPUNAN

AT ADHIKAIN PARA SA TAO, INC., petitioner,
vs.
COMMISSION ON ELECTIONS (COMELEC), respondent.
RESOLUTION
TINGA, J.:
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110
For resolution is the Petition1 for certiorari and mandamus filed by

Aklat-Asosasyon Para Sa Kaunlaran Ng Lipunan At Adhikain Para
Sa Tao, Inc. (Aklat) assailing the Commission on Elections
(Comelec) Resolution2 dated January 8, 2004, which dismissed its
Petition3 for re-qualification as a party-list organization, and the
Resolution4dated February 13, 2004, which denied its Motion for
Reconsideration.5
On January 15, 2004, Aklat filed a Motion for Reconsideration dated

January 14, 2004, substantially averring that it has reorganized itself
and taken the necessary steps to make it an organization of, by and
for the marginalized and underrepresented groups of society,
particularly the indigenous cultural communities and the youth. To
this end, it has allegedly effected a fundamental change in its
purposes as an organization, nature of its membership and focus of
its programs.10
Briefly, the facts are as follows:

The Comelec denied the motion in its questioned Resolution dated
February 13, 2004, on three grounds, namely: the petition was filed
beyond the deadline set by the Comelec in Resolution No. 6320 for
registration of party-list organizations; the petition was not one for
re-qualification as Aklat was never a registered party-list
organization having failed to meet the eight-point guidelines set by
the Court in the Bagong Bayani case; and that its decision not to
extend the deadline for registration of party-list organizations is
valid, the Comelec being in the best position to make such a
determination.11
On November 20, 2003, Aklat filed a Petition for declaration of requalification as a party-list organization for purposes of the May
2004 elections. It alleged in its petition that it participated in the
2001 elections but was disqualified by the Comelec as it was found
not to have complied with the guidelines set by the Court in the case
of Ang Bagong Bayani-OFW Labor Party v. Comelec (Bagong
Bayani case)6 for party-list organizations to qualify and participate
as such in the party-list elections. Accordingly, Aklat "re-organized
itself in order that it will comply with the 8-point guidelines
enunciated by the Supreme Court"7 in the said case.
In the instant Petition, Aklat asserts that under Section 5 of R.A.

7941, petitions for registration as a party-list organization may be
filed not later than ninety (90) days before the elections. It therefore
had until February 10, 2004, the ninetieth (90th) day before the
elections on May 10, 2004, within which to file its petition. Hence,
its petition, which was filed on November 20, 2003, was filed within
the allowed period. Section 5 of Resolution No. 632012 which
requires the filing of such petitions not later than September 30,
2003, is null and void as it amends R.A. 7941.
In its assailed Resolution dated January 8, 2004, the Comelec

dismissed the petition stating that Aklat cannot be considered as an
organization representing the marginalized and underrepresented
groups as identified under Section 5 of Republic Act No. 7941 (R.A.
7941). According to the Comelec, Aklats statement that it has reorganized itself does not cure this defect as "there is nothing in the
petition which will help us identify what particular marginalized and
underrepresented group AKLAT is now representing."8 Further, the
Comelec held that "AKLAT lumped all the sectoral groups
imaginable under the classification of regular members just to
convince us that it is now cured of its defect."9
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It further maintains that it has complied with the eight-point

guidelines set in the Bagong Bayani case. Allegedly, Aklat has a
total membership of over 4,000 persons who belong to the
111
marginalized and underrepresented groups. It has established

information and coordination centers throughout the country for the
benefit and in representation of indigenous cultural communities,
farm and factory workers including fisherfolk and the youth. Aklat
also asserts that it is different from Asosasyon Para sa Kaunlaran ng
Industria ng Aklat (A.K.L.A.T.) which was previously de-registered
by the Comelec. Because of all these, Aklat contends that the
Comelec gravely abused its discretion when it denied its petition for
re-qualification.
Securities and Exchange Commission only on October 20, 2003, a

month before it filed its petition for re-qualification. Hence, it has
not existed for a period of at least one (1) year prior to the filing of
the petition as required by Section 6 of Resolution No. 6320. The
OSG also points out that Aklat failed to support its petition with the
documents required under Section 7 of Resolution No. 6320,
namely: a list of its officers and members particularly showing that
the majority of its membership belongs to the marginalized and
underrepresented sectors it seeks to represent, and a track record or
summary showing that it represents and seeks to uplift the
marginalized and underrepresented sectors of society.
The Office of the Solicitor General (OSG) filed a Comment dated

March 26, 2004, stating that the Comelec did not commit grave
abuse of discretion in issuing the assailed Resolutions. According to
the OSG, Resolution No. 6320 is not in conflict with and is, in fact,
germane to the purpose of R.A. 7941. It was within the scope of the
authority granted to the Comelec that it issued Resolution No. 6320
setting the deadline for filing petitions for registration under the
party-list system on September 30, 2003. In line with the purpose of
R.A. 7941 to enable marginalized sectors to actively participate in
legislation, the Comelec must be given sufficient time to evaluate all
petitions for registration, at the same time allowing oppositions to be
filed to the end that only those truly qualified may be accredited
under the party-list system. Besides, Republic Act No. 8436 13 allows
the Comelec to change the periods and dates prescribed by law for
certain pre-election acts to ensure their accomplishment.
Moreover, the OSG notes that the incorporators and directors of

Aklat are invariably known as pillars of the book publishing
industry or authors. Hence, even as re-organized, Aklat remains to
be an association of authors, book publishers, and publishing
companies, rather than the organization of indigenous cultural
communities, farm and factory workers, fisherfolk and youth it
claims to be.
For its part, the Comelec filed a Comment dated March 29, 2004,
stating that the period of ninety (90) days prescribed in R.A. 7941
refers to the prohibitive period beyond which petitions for
registration may no longer be filed. Furthermore, the documents
submitted by Aklat do not prove that its members belong to the
marginalized and underrepresented sectors of society.
The OSG further maintains that the petition for re-qualification

failed to comply with the provisions of Resolution No. 6320.
According to the OSG, the petition was not properly verified there
being no showing that Mr. Dominador Buhain, the signatory of the
verification and certification of non-forum shopping, was duly
authorized by Aklat to verify or cause the preparation and filing of
the petition on its behalf. Moreover, Aklat was registered with the
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Aklats contention that Resolution No. 6320 is null and void as it

amends and amplifies R.A. 7941 deserves scant consideration. R.A.
7941 provides:
Sec. 5. Registration.Any organized group of persons may register
as a party, organization or coalition for purposes of the party-list
112
system by filing with the COMELEC not later than ninety (90) days
before the election a petition verified by its president or secretary
stating its desire to participate in the party-list system as a national,
regional or sectoral party or organization or a coalition of such
parties or organizations, attaching thereto its constitution, by-laws,
platform or program of government, list of officers, coalition
agreement and other relevant information as the COMELEC may
require: Provided, That the sectors shall include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and
professionals[Italics supplied.]
Neither is there grave abuse of discretion in the Comelecs denial of

Aklats petition on the ground that it failed to substantiate its claim
that it represents the marginalized and underrepresented sectors of
society. It should be noted that it was Aklat which asserted in its
petition before the poll body that it has re-organized and is now
applying for re-qualification after its de-registration for failure to
comply with the guidelines set forth in the Bagong Bayani case.
Thus, the Comelec cannot be faulted for relying on its earlier
finding, absent any evidence in Aklats petition to the contrary, that
Aklat is not an organization representing the marginalized and
underrepresented sectors, but is actually a business interest or
economic lobby group which seeks the promotion and protection of
the book publishing industry.
By its wording, R.A. 7941 itself supports the Comelecs position

that the period stated therein refers to the prohibitive period beyond
which petitions for registration should no longer be filed nor
entertained. Put elsewise, it is simply the minimum countback
period which is not subject to reduction since it is prescribed by law,
but it is susceptible of protraction on account of administrative
necessities and other exigencies perceived by the poll body.
Significantly, Aklat and A.K.L.A.T. have substantially the same

incorporators. In fact, four (4) of Aklats six (6) incorporators 14 are
also incorporators of A.K.L.A.T.15 This substantial similarity is hard
to ignore and bolsters the conclusion that the supposed reorganization undertaken by Aklat is plain window-dressing as it has
not really changed its character as a business interest of persons in
the book publishing industry.
Verily, the Comelec has the power to promulgate the necessary rules
and regulations to enforce and administer election laws. This power
includes the determination, within the parameters fixed by law, of
appropriate periods for the accomplishment of certain pre-election
acts like filing petitions for registration under the party-list system.
This is exactly what the Comelec did when it issued its Resolution
No. 6320 declaring September 30, 2003, as the deadline for filing
petitions for registration under the party-list system. Considering
these, as well as the multifarious pre-election activities that the
Comelec is mandated to undertake, the issuance of its Resolution
No. 6320 cannot be considered tainted with grave abuse of
discretion.
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The Court observes that Aklats articles of incorporation and

document entitled The Facts About Aklat which were attached to its
petition for re-qualification contain general averments that it
supposedly represents marginalized groups such as the youth,
indigenous communities, urban poor and farmers/fisherfolk. These
general statements do not measure up to the first guideline set by the
Bagong Bayani case for screening party-list participants, i.e.,that
"the political party, sector, organization or coalition must represent
the marginalized and underrepresented groups identified in Section
5 of R.A. 7941. In other words, it must showthrough its
constitution, articles of incorporation, bylaws, history, platform of
113
government and track recordthat it represents and seeks to uplift

marginalized and underrepresented sectors. Verily, majority of its
membership should belong to the marginalized and
underrepresented. And it must demonstrate that in a conflict of
interests, it has chosen or is likely to choose the interest of such
sectors."16
In this regard, the Court notes with approval the OSGs contention
that Aklat has no track record to speak of concerning its
representation of marginalized and underrepresented constituencies
considering that it has been in existence for only a month prior to
the filing of its petition for re-qualification.
It should finally be emphasized that the findings of fact by the
Comelec, or any other administrative agency exercising particular
expertise in its field of endeavor, are binding on the Supreme
Court.17
In view of the foregoing, the Comelec can, by no means, be held to
have committed grave abuse of discretion to justify the setting aside
of the assailed Resolutions.
ACCORDINGLY, the Petition is DISMISSED.
SO ORDERED.
Davide, Jr., Puno, Vitug, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
LAW ON ELECTION
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G.R. No.

Republic of the Philippines

2. The petition for disqualification failed to submit convincing and

3. Penera never admitted the allegations of the petition for

November 25, 2009

4. The admission that Penera participated in a motorcade is not the

ROSALINDA A. PENERA, Petitioner,

Section 79(a) of the Omnibus Election Code defines a "candidate"

In support of her motion for reconsideration, Penera submits the

Under the Decision, a candidate may already be liable for premature

campaigning after the filing of the certificate of candidacy but even

of candidacy on the last day, which under Section 75 of the Omnibus

There is no dispute that Eusebios acts of election campaigning or

Thus, the essential elements for violation of Section 80 of the

Section 11 of Republic Act No. 8436 ("RA 8436") moved the

The second element requires the existence of a "candidate." Under

Section 11 of RA 8436 provides:

and/or the Bangko Sentral ng Pilipinas at the price comparable with

SECTION 11. Official Ballot. The Commission shall prescribe the

To prevent the use of fake ballots, the Commission through the

Both sides of the ballots may be used when necessary.

The official ballots shall be printed and distributed to each

The official ballots shall be printed by the National Printing Office

SENATOR GONZALES. But the moment one files a certificate of

SENATOR GONZALES. How about prohibition against

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

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention

SENATOR GONZALES. And you cannot say that the campaign

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be

SENATOR GONZALES. If thats a fact, the law cannot change a

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually,

So, with the manifestations from the Commission on Elections, Mr.

meet the early deadline "will still not be considered as a candidate." 3

participate in the election. Any person who files his certificate of

Congress elevated the Lanot doctrine into a statute by specifically

The clear intention of Congress was to preserve the "election periods

The assailed Decision, however, in reversing Lanot does not claim

In enacting RA 9369, Congress even further clarified the first

Congress wanted to insure that no person filing a certificate of

original provision in RA 8436 states

aggroupment or coalition of parties." However, it is no longer

x x x Provided, further, That, unlawful acts or omissions applicable

When the applicable provisions of RA 8436, as amended by RA

The assailed Decision gives a specious reason in explaining away

the first proviso in the third paragraph, the amended Section 15 of

It is a basic principle of law that any act is lawful unless expressly

x x x [T]he line in Section 15 of Republic Act No. 8436, as

In laymans language, this means that a candidate is liable for an

As previously established, a person, after filing his/her COC but

The Decision rationalizes that a candidate who commits premature

respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue

WHEREFORE, we GRANT petitioner Rosalinda A. Peneras

3) The petition for disqualification failed to submit convincing and

4) Penera never admitted the allegations of the petition for

criminal liability for premature campaigning would have been

5) The admission that Penera participated in a motorcade is not the

Likewise, Peneras contention that her admission of participating in

The basic issues in the Motion for Reconsideration were already

Incidentally, Penera herself disclosed in her Motion for

As held in the Decision dated 11 September 2009, the conduct of a

undertaking any campaign or propaganda for or against a

Under Section 79(a) of the Omnibus Election Code, a candidate is