G.R. No.

193261

April 24, 2012

MEYNARDO SABILI, Petitioner,

vs.
COMMISSION ON ELECTIONS and FLORENCIO
LIBREA, Respondents.

6. Voter Certification on petitioner issued by COMELEC

Election Officer Juan D. Aguila, Jr.11
7. 1997 Voter Registration Record of petitioner12
8. National Statistics Office (NSO) Advisory on Marriages
regarding petitioner13

DECISION
SERENO, J.:
Before us is a Petition for Certiorari under Rule 64 in relation to Rule
65 of the Rules of Court, seeking to annul the Resolutions in SPA
No. 09-047 (DC) dated 26 January 2010 and 17 August 2010 of the
Commission on Elections (COMELEC), which denied due course to
and canceled the Certificate of Candidacy (COC) of petitioner
Meynardo Sabili (petitioner) for the position of Mayor of Lipa City for
the May 2010 elections. At the

9. Lipa City Assessor Certificate of No Improvement on

Block 2, Lot 3, Brgy. Lood, Lipa City registered in the name
of petitioner14
10. NSO Certificate of No Marriage of Bernadette
Palomares15
11. Lipa City Assessor Certificate of No Improvement on
Block 2, Lot 5, Brgy. Lood, Lipa City registered in the name
of petitioner16

heart of the controversy is whether petitioner Sabili had complied

with the one-year residency requirement for local elective officials.

12. Lipa City Permits and Licensing Office Certification that

petitioner has no business therein17

When petitioner filed his COC1 for mayor of Lipa City for the 2010
elections, he stated therein that he had been a resident of the city
for two (2) years and eight (8) months. Prior to the 2010 elections,
he had been twice elected (in 1995 and in 1998) as Provincial Board
Member representing the 4th District of Batangas. During the 2007
elections, petitioner ran for the position of Representative of the 4th
District of Batangas, but lost. The 4th District of Batangas includes
Lipa City.2 However, it is undisputed that when petitioner filed his
COC during the 2007 elections, he and his family were then staying
at his ancestral home in Barangay (Brgy.) Sico, San Juan,
Batangas.

13. Apparent printout of a Facebook webpage of

petitioners daughter, Mey Bernadette Sabili18

Private respondent Florencio Librea (private respondent) filed a

"Petition to Deny Due Course and to Cancel Certificate of
Candidacy and to Disqualify a Candidate for Possessing Some
Grounds for Disqualification"3 against him before the COMELEC,
docketed as SPA No. 09-047 (DC). Citing Section 78 in relation to
Section 74 of the Omnibus Election Code,4 private respondent
alleged that petitioner made material misrepresentations of fact in
the latters COC and likewise failed to comply with the one-year
residency requirement under Section 39 of the Local Government
Code. 5 Allegedly, petitioner falsely declared under oath in his COC
that he had already been a resident of Lipa City for two years and
eight months prior to the scheduled 10 May 2010 local elections.
In support of his allegation, private respondent presented the
following:
1. Petitioners COC for the 2010 elections filed on 1
December 20096
2. 2009 Tax Declarations for a house and lot (TCT Nos.
173355, 173356 and buildings thereon) in Pinagtong-ulan,
Lipa City registered under the name of Bernadette
Palomares, petitioners common-law wife7
3. Lipa City Assessor Certification of Property Holdings of
properties under the name of Bernadette Palomares8
4. Affidavit executed by private respondent Florencio
Librea9
5. Sinumpaang Salaysay executed by Eladio de Torres10

14. Department of Education (DepEd) Lipa City Division

Certification that the names Bernadette Palomares, Mey
Bernadette Sabili and Francis Meynard Sabili (petitioners
son) do not appear on its list of graduates19
15. Certification from the Office of the Election Officer of
Lipa City that Bernadette Palomares, Mey Bernadette
Sabili and Francis Meynard Sabili do not appear in its list
of voters20
16. Affidavit executed by Violeta Fernandez21
17. Affidavit executed by Rodrigo Macasaet22
18. Affidavit Executed by Pablo Lorzano23
19. Petitioners 2007 COC for Member of House of
Representative24
For ease of later discussion, private respondents evidence shall be
grouped as follows: (1) Certificates regarding ownership of real
property; (2) petitioners Voter Registration and Certification
(common exhibits of the parties); (3) petitioners COCs in previous
elections; (3) Certifications regarding petitioners family members;
and (4) Affidavits of Lipa City residents.
On the other hand, petitioner presented the following evidence to
establish the fact of his residence in Lipa City:
1. Affidavit executed by Bernadette Palomares25
2. Birth Certificate of Francis Meynard Sabili26
3. Affidavit of Leonila Suarez (Suarez)27
4. Certification of Residency issued by Pinagtong-ulan
Barangay Captain, Dominador Honrade28
5. Affidavit executed by Rosalinda Macasaet29

6. Certificate of Appreciation issued to petitioner by the

parish of Sto. Nino of Pinagtong-ulan30
7. Designation of petitioner in the Advisory Body (AB) of
Pinagtong-ulan, San Jose/Lipa City Chapter of Guardians
Brotherhood, Inc.31
8. COMELEC Voter Certification on petitioner issued by
Election Officer Juan Aguila, Jr.32
9. COMELEC Application for Transfer/Transfer with
Reactivation dated 6 June 2009 signed by Election Officer
Juan Aguila, Jr.33
10. Petitioners Income Tax Return for 200734
11. Official Receipt for petitioners income tax payment for
200735
12. Petitioners Income Tax Return for 200836
13. Official Receipt for petitioners income tax payment for
200837

SEC. 6. Promulgation. The promulgation of a Decision or

Resolution of the Commission or a Division shall be made on a date
previously fixed, notice of which shall be served in advance upon the
parties or their attorneys personally, or by registered mail, telegram,
fax, or thru the fastest means of communication.
Hence, petitioner filed with this Court a Petition (Petition for
Certiorari with Extremely Urgent Application for the Issuance of a
Status Quo Order and for the Conduct of a Special Raffle of this
Case) under Rule 64 in relation to Rule 65 of the Rules of Court,
seeking the annulment of the 26 January 2010 and 17 August 2010
Resolutions of the COMELEC. Petitioner attached to his Petition a
Certificate of Canvass of Votes and proclamation of Winning
Candidates for Lipa City Mayor and Vice-Mayor issued by the
City/Municipal Board of Canvassers,44 as well as a copy of his Oath
of Office.45 He also attached to his Petition another Certification of
Residency46 issued by Pinagtong-ulan Barangay Captain Dominador
Honrade and sworn to before a notary public.
On 7 September 2010, this Court issued a Status Quo Ante
Order47 requiring the parties to observe the status quo prevailing
before the issuance of the assailed COMELEC Resolutions.
Thereafter, the parties filed their responsive pleadings.
Issues

14. Birth Certificate of Mey Bernadette Sabili

38

The following are the issues for resolution:

15. Affidavit executed by Jacinto Cornejo, Sr.39
16. Joint Affidavit of twenty-one (21) Pinagtong-ulan
residents, including past and incumbent Pinagtong-ulan
officials.40
For ease of later discussion, petitioners evidence shall be grouped
as follows: (1) his Income Tax Returns and corresponding Official
Receipts for the years 2007 and 2008; (2) Certification from the
barangay captain of Pinagtong-ulan; (3) Affidavit of his common-law
wife, Bernadette Palomares; and (4) Affidavits from a previous
property owner, neighbors, Certificate of Appreciation from the
barangay parish and Memorandum from the local chapter of
Guardians Brotherhood, Inc.
The COMELEC Ruling
In its Resolution dated 26 January 2010,41 the COMELEC Second
Division granted the Petition of private respondent, declared
petitioner as disqualified from seeking the mayoralty post in Lipa
City, and canceled his Certificate of Candidacy for his not being a
resident of Lipa City and for his failure to meet the statutory oneyear residency requirement under the law.
Petitioner moved for reconsideration of the 26 January 2010
Resolution of the COMELEC, during the pendency of which the 10
May 2010 local elections were held. The next day, he was
proclaimed the duly elected mayor of Lipa City after garnering the
highest number of votes cast for the said position. He accordingly
filed a Manifestation42with the COMELEC en banc to reflect this fact.
In its Resolution dated 17 August 2010,43 the COMELEC en
banc denied the Motion for Reconsideration of petitioner. Although
he was able to receive his copy of the Resolution, no prior notice
setting the date of promulgation of the said Resolution was received
by him. Meanwhile, Section 6 of COMELEC Resolution No. 8696
(Rules on Disqualification Cases Filed in Connection with the May
10, 2012 Automated National and Local Elections) requires the
parties to be notified in advance of the date of the promulgation of
the Resolution.

1. Whether the COMELEC acted with grave abuse of

discretion when it failed to promulgate its Resolution dated
17 August 2010 in accordance with its own Rules of
Procedure; and
2. Whether the COMELEC committed grave abuse of
discretion in holding that Sabili failed to prove compliance
with the one-year residency requirement for local elective
officials.
The Courts Ruling
1. On whether the COMELEC acted with grave abuse of discretion
when it failed to promulgate its Resolution dated 17 August 2010 in
accordance with its own Rules of Procedure
Petitioner argues that the assailed 17 August 2010 COMELEC
Resolution, which denied petitioners Motion for Reconsideration, is
null and void. The Resolution was allegedly not promulgated in
accordance with the COMELECs own Rules of Procedure and,
hence, violated petitioners right to due process of law.
The rules governing the Petition for Cancellation of COC in this case
is COMELEC Resolution No. 8696 (Rules on Disqualification of
Cases Filed in Connection with the May 10, 2010 Automated
National and Local Elections), which was promulgated on 11
November 2009. Sections 6 and 7 thereof provide as follows:
SEC. 6. Promulgation. - The promulgation of a Decision or
Resolution of the Commission or a Division shall be made on a date
previously fixed, notice of which shall be served in advance upon the
parties or their attorneys personally, or by registered mail, telegram,
fax or thru the fastest means of communication.
SEC. 7. Motion for Reconsideration. - A motion to reconsider a
Decision, Resolution, Order or Ruling of a Division shall be filed
within three (3) days from the promulgation thereof. Such motion, if

not pro-forma, suspends the execution for implementation of the

Decision, Resolution, Order or Ruling.
Within twenty-four (24) hours from the filing thereof, the Clerk of the
Commission shall notify the Presiding Commissioner. The latter shall
within two (2) days thereafter certify the case to the Commission en
banc.
The Clerk of the Commission shall calendar the Motion for
Reconsideration for the resolution of the Commission en banc within
three (3) days from the certification thereof.
However, the COMELEC Order dated 4 May 201048 suspended
Section 6 of COMELEC Resolution No. 8696 by ordering that "all
resolutions be delivered to the Clerk of the Commission for
immediate promulgation" in view of "the proximity of the Automated
National and Local Elections and lack of material time." The Order
states:
ORDER
Considering the proximity of the Automated National and Local
Elections and lack of material time, the Commission hereby
suspends Sec. 6 of Resolution No. 8696 promulgated on November
11, 2009, which reads:
Sec. 6. Promulgation. The promulgation of a Decision or
Resolution of the Commission or a Division shall be made on a date
previously fixed, notice of which shall be served upon the parties or
their attorneys personally, or by registered mail, telegram, fax or thru
the fastest means of communication."
Let all resolutions be delivered to the Clerk of the Commission for
immediate promulgation.
SO ORDERED.
Petitioner claims that he did not receive notice of the said
suspension of Section 6 of COMELEC Resolution No. 8696. Thus,
his right to due process was still violated. On the other hand, the
COMELEC claims that it has the power to suspend its own rules of
procedure and invokes Section 6, Article IX-A of the Constitution,
which gives it the power "to promulgate its own rules concerning
pleadings and practice before it or before any of its offices."
We agree with the COMELEC on this issue.
In Lindo v. Commission on Elections,49 petitioner claimed that there
was no valid promulgation of a Decision in an election protest case
when a copy thereof was merely furnished the parties, instead of
first notifying the parties of a set date for the promulgation thereof, in
accordance with Section 20 of Rule 35 of the COMELECs own
Rules of Procedure, as follows:
Sec. 20. Promulgation and Finality of Decision. The decision of
the court shall be promulgated on a date set by it of which due
notice must be given the parties. It shall become final five (5) days
after promulgation. No motion for reconsideration shall be
entertained.
Rejecting petitioners argument, we held therein that the additional
rule requiring notice to the parties prior to promulgation of a decision
is not part of the process of promulgation. Since lack of such notice
does not prejudice the rights of the parties, noncompliance with this
rule is a procedural lapse that does not vitiate the validity of the
decision. Thus:

This contention is untenable. Promulgation is the process by which a

decision is published, officially announced, made known to the
public or delivered to the clerk of court for filing, coupled with notice
to the parties or their counsel (Neria v. Commissioner of
Immigration, L-24800, May 27, 1968, 23 SCRA 812). It is the
delivery of a court decision to the clerk of court for filing and
publication (Araneta v. Dinglasan, 84 Phil. 433). It is the filing of the
signed decision with the clerk of court (Sumbing v. Davide, G.R.
Nos. 86850-51, July 20, 1989, En Banc Minute Resolution). The
additional requirement imposed by the COMELEC rules of notice in
advance of promulgation is not part of the process of promulgation.
Hence, We do not agree with petitioners contention that there was
no promulgation of the trial court's decision. The trial court did not
deny that it had officially made the decision public. From the recital
of facts of both parties, copies of the decision were sent to
petitioner's counsel of record and petitioners (sic) himself. Another
copy was sent to private respondent.
What was wanting and what the petitioner apparently objected to
was not the promulgation of the decision but the failure of the trial
court to serve notice in advance of the promulgation of its decision
as required by the COMELEC rules. The failure to serve such notice
in advance of the promulgation may be considered a procedural
lapse on the part of the trial court which did not prejudice the rights
of the parties and did not vitiate the validity of the decision of the trial
court nor (sic) of the promulgation of said decision.
Moreover, quoting Pimping v. COMELEC,50 citing Macabingkil v.
Yatco,51 we further held in the same case that failure to receive
advance notice of the promulgation of a decision is not sufficient to
set aside the COMELECs judgment, as long as the parties have
been afforded an opportunity to be heard before judgment is
rendered, viz:
The fact that petitioners were not served notice in advance of the
promulgation of the decision in the election protest cases, in Our
view, does not constitute reversible error or a reason sufficient
enough to compel and warrant the setting aside of the judgment
rendered by the Comelec. Petitioners anchor their argument on an
alleged denial to them (sic) due process to the deviation by the
Comelec from its own made rules. However, the essence of due
process is that, the parties in the case were afforded an opportunity
to be heard.
In the present case, we read from the COMELEC Order that the
exigencies attendant to the holding of the countrys first automated
national elections had necessitated that the COMELEC suspend the
rule on notice prior to promulgation, and that it instead direct the
delivery of all resolutions to the Clerk of the Commission for
immediate promulgation. Notably, we see no prejudice to the parties
caused thereby. The COMELECs Order did not affect the right of
the parties to due process. They were still furnished a copy of the
COMELEC Decision and were able to reckon the period for
perfecting an appeal. In fact, petitioner was able to timely lodge a
Petition with this Court.
Clearly, the COMELEC validly exercised its constitutionally granted
power to make its own rules of procedure when it issued the 4 May
2010 Order suspending Section 6 of COMELEC Resolution No.
8696. Consequently, the second assailed Resolution of the
COMELEC cannot be set aside on the ground of COMELECs
failure to issue to petitioner a notice setting the date of the
promulgation thereof.
2. On whether the COMELEC committed grave abuse of discretion
in holding that Sabili failed to prove compliance with the one-year
residency requirement for local elective officials

As a general rule, the Court does not ordinarily review the

COMELECs appreciation and evaluation of evidence. However,
exceptions thereto have been established, including when the
COMELEC's appreciation and evaluation of evidence become so
grossly unreasonable as to turn into an error of jurisdiction. In these
instances, the Court is compelled by its bounden constitutional duty
to intervene and correct the COMELEC's error.52
In Mitra v. Commission on Elections, (G.R. No. 191938, 2 July
2010), we explained that the COMELECs use of wrong or irrelevant
considerations in deciding an issue is sufficient to taint its action with
grave abuse of discretion As a concept, "grave abuse of discretion" defies exact definition;
generally, it refers to "capricious or whimsical exercise of judgment
as is equivalent to lack of jurisdiction;" the abuse of discretion must
be patent and gross as to amount to an evasion of a positive duty or
a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion and hostility. Mere abuse
of discretion is not enough; it must be grave. We have held, too, that
the use of wrong or irrelevant considerations in deciding an issue is
sufficient to taint a decision-maker's action with grave abuse of
discretion.

Hence, in resolving the issue of whether the COMELEC gravely

abused its discretion in ruling that petitioner had not sufficiently
shown that he had resided in Lipa City for at least one year prior to
the May 2010 elections, we examine the evidence adduced by the
parties and the COMELECs appreciation thereof.
In the present case, the parties are in agreement that the domicile of
origin of Sabili was Brgy. Sico, San Juan, Batangas. He claims that
he abandoned his domicile of origin and established his domicile of
choice in Brgy. Pinagtong-ulan, Lipa City, thereby making him
qualified to run for Lipa City mayor. On the other hand, respondent
COMELEC held that no such change in domicile or residence took
place and, hence, the entry in his Certificate of Candidacy showing
that he was a resident of Brgy. Pinagtong-ulan, Lipa City constituted
a misrepresentation that disqualified him from running for Lipa City
mayor.
To establish a new domicile of choice, personal presence in the
place must be coupled with conduct indicative of the intention to
make it one's fixed and permanent place of abode. 53 As in all
administrative cases, the quantum of proof necessary in election
cases is substantial evidence, or such relevant evidence as a
reasonable mind will accept as adequate to support a conclusion. 54
The ruling on private respondents evidence

Closely related with the limited focus of the present petition is the
condition, under Section 5, Rule 64 of the Rules of Court, that
findings of fact of the COMELEC, supported by substantial
evidence, shall be final and non-reviewable. Substantial evidence is
that degree of evidence that a reasonable mind might accept to
support a conclusion.
In light of our limited authority to review findings of fact, we do not
ordinarily review in a certiorari case the COMELEC's appreciation
and evaluation of evidence. Any misstep by the COMELEC in this
regard generally involves an error of judgment, not of jurisdiction.
In exceptional cases, however, when the COMELEC's action on the
appreciation and evaluation of evidence oversteps the limits of its
discretion to the point of being grossly unreasonable, the Court is
not only obliged, but has the constitutional duty to intervene. When
grave abuse of discretion is present, resulting errors arising from the
grave abuse mutate from error of judgment to one of jurisdiction.
Before us, petitioner has alleged and shown the COMELECs use of
wrong or irrelevant considerations in deciding the issue of whether
petitioner made a material misrepresentation of his residency
qualification in his COC as to order its cancellation. Among others,
petitioner pointed to the COMELECs inordinate emphasis on the
issue of property ownership of petitioners declared residence in
Lipa City, its inconsistent stance regarding Palomaress relationship
to the Pinagtong-ulan property, and its failure to consider in the first
instance the certification of residence issued by the barangay
captain of Pinagtong-ulan. Petitioner bewails that the COMELEC
required "more" evidence to show the change in his residence,
notwithstanding the various pieces of evidence he presented and
the fact that under the law, the quantum of evidence required in
these cases is merely substantial evidence and not clear and
convincing evidence. Petitioner further ascribes grave abuse of
discretion in the COMELECs brushing aside of the fact that he has
been filing his ITR in Lipa City (where he indicates that he is a
resident of Pinagtong-ulan) on the mere expedient that the law
allows the filing of the ITR not only in the place of legal residence
but, alternately, in his place of business. Petitioner notes that private
respondents own evidence shows that petitioner has no business in
Lipa City, leaving only his residence therein as basis for filing his ITR
therein.

We begin with an evaluation of the COMELECs appreciation of

private respondents evidence.
a) Petitioners Voter Certification, Registration and COCs in previous
elections
Petitioners Voter Certification is a common exhibit of the parties. It
states, among others, that petitioner is a resident of Pinagtong-ulan,
Lipa City, Batangas; that he had been a resident of Lipa City for two
(2) years and three (3) months; and that he was so registered on 31
October 2009. The information therein was "certified correct" by
COMELEC Election Officer Juan B. Aguila, Jr.
Private respondent presented this document as proof that petitioner
misrepresented that he is a resident of Lipa City. On the other hand,
the latter presented this document as proof of his residency.
The COMELEC correctly ruled that the Voter Certification issued by
the COMELEC Election Officer, Atty. Juan B. Aguila, Jr., was not
conclusive proof that petitioner had been a resident of Lipa City
since April 2007. It noted that Aguila is not the competent public
officer to certify the veracity of this claim, particularly because
petitioners COMELEC registration was approved only in October
2009.
The Voter Registration Record of petitioner accomplished on 21
June 1997 showing that he was a resident of Sico, San Juan,
Batangas, as well as his various COCs dated 21 June 1997 and
March 2007 indicating the same thing, were no longer discussed by
the COMELEC and rightly so. These pieces of evidence showing
that he was a resident of Sico, San Juan, Batangas on the said
dates are irrelevant as, prior to April 2007, petitioner was admittedly
a resident of Sico, San Juan Batangas. Rather, the relevant time
period for consideration is that from April 2007 onwards, after
petitioners alleged change of domicile.
b) Certificates regarding ownership of real property
The various certificates and tax declarations adduced by private
respondent showed that the Lipa property was solely registered in
the name of petitioners common-law wife, Bernadette Palomares. In

discussing the import of this document, the COMELEC reasoned

that, being a "seasoned politician," he should have registered the
Lipa property (which he claimed to have purchased with his personal
funds) in his own name. Such action "would have offered positive
proof of intent to change actual residence" from San Juan, Batangas
to Lipa City, considering that he had previously declared his
ancestral home in San Juan, Batangas as his domicile. Since
Palomares and petitioner are common-law spouses not capacitated
to marry each other, the property relation between them is governed
by Article 148 of the Family Code,55 where only the parties actual
contributions are recognized. Hence, petitioner cannot prove
ownership of a property and residence in Lipa City through the
registered ownership of the common-law wife of the property in Lipa
City.
On the other hand, petitioner bewails the inordinate emphasis that
the COMELEC bestowed upon the question of whether the Lipa
property could be considered as his residence, for the reason that it
was not registered in his name. He stresses that the issue should be
residence, not property ownership.
It is true that property ownership is not among the qualifications
required of candidates for local election.56 Rather, it is a candidates
residence in a locality through actual residence in whatever capacity.
Indeed, we sustained the COMELEC when it considered as
evidence tending to establish a candidates domicile of choice the
mere lease (rather than ownership) of an apartment by a candidate
in the same province where he ran for the position of governor.57 In
the more recent case of Mitra v. Commission on Elections, 58 we
reversed the COMELEC ruling that a candidates sparsely furnished,
leased room on the mezzanine of a feedmill could not be considered
as his residence for the purpose of complying with the residency
requirement of Section 78 of the Omnibus Election Code.59
The Dissent claims that the registration of the property in
Palomaress name does not prove petitioners residence as it merely
showed "donative intent" without the necessary formalities or
payment of taxes.
However, whatever the nature of the transaction might be, this point
is immaterial for the purpose of ascertaining petitioners residence.
We have long held that it is not required that a candidate should
have his own house in order to establish his residence or domicile in
a place. It is enough that he should live in the locality, even in a
rented house or that of a friend or relative.60 What is of central
concern then is that petitioner identified and established a place in
Lipa City where he intended to live in and return to for an indefinite
period of time.
Hence, while the COMELEC correctly ruled that, of itself,
Palomares ownership of the Lipa property does not prove that she
or and in view of their common-law relations, petitioner resides
in Lipa City, nevertheless, the existence of a house and lot
apparently owned by petitioners common-law wife, with whom he
has been living for over two decades, makes plausible petitioners
allegation of bodily presence and intent to reside in the area.
c) Certifications regarding the family members of petitioner

As the issue at hand is petitioners residence, and not the

educational or voting record of his family, the COMELEC properly
did not consider these pieces of evidence in arriving at its
Resolution.
The Dissent nevertheless asserts that because his children do not
attend educational institutions in Lipa and are not registered voters
therein, and because petitioner does not maintain a business therein
nor has property
in his name, petitioner is unable to show the existence of real and
substantial reason for his stay in Lipa City.
As to the Dissents first assertion, it must be stressed that the
children, like the wife, do not dictate the family domicile. Even in the
context of marriage, the family domicile is jointly decided by both
husband and wife.61 In addition, we note that the transfer to Lipa City
occurred in 2007, when petitioners children were already well into
college and could very well have chosen to study elsewhere than in
Lipa City.
Also, it is petitioners domicile which is at issue, and not that of his
children. But even assuming that it was petitioner himself (rather
than his children) who attended educational institutions or who
registered as a voter in a place other than Lipa City, we have held
that "absence from residence to pursue studies or practice a
profession or registration as a voter other than in the place where
one is elected, does not constitute loss of residence."62 In fact,
Section 117 of the Omnibus Election Code provides that transfer of
residence to any other place by reason of one's "occupation;
profession; employment in private and public service; educational
activities; work in military or naval reservations; service in the army,
navy or air force, the constabulary or national police force; or
confinement or detention in government institutions in accordance
with law" is not deemed as loss of residence.
As to the Dissents second assertion, petitioner apparently does not
maintain a business in Lipa City. However, apart from the Pinagtongulan property which both Suarez (the previous property owner) and
Palomares swear was purchased with petitioners own funds, the
records also indicate that there are two other lots in Lipa City,
particularly in Barangay Lodlod, Lipa City63 which are registered
jointly in the name of petitioner and Palomares. In fact, it was private
respondent who presented the Lipa City Assessors Certificate to
this effect. Even assuming that this Court were to disregard the two
Lodlod lots, it is well-established that property ownership (and
similarly, business interest) in the locality where one intends to run
for local elective post is not requirement of the Constitution. 64
More importantly, we have gone so far as to rule that there is
nothing "wrong in an individual changing residences so he could run
for an elective post, for as long as he is able to prove with
reasonable certainty that he has
effected a change of residence for election law purposes for the
period required by law."65
d) Affidavits of Lipa City residents

Private respondent presented a Certification from the DepEd, Lipa

City Division, indicating that the names Bernadette Palomares, Mey
Bernadette Sabili (petitioners daughter) and Francis Meynard Sabili
(petitioners son) do not appear on the list of graduates of Lipa City.
Private respondent also presented a Certification from the Office of
the Election Officer of Lipa City that the names of these family
members of petitioner do not appear in its list of voters.

Private respondent also presented the affidavits of Violeta

Fernandez66 and Rodrigo Macasaet,67 who were also residents of
Pinagtong-ulan. Both stated that petitioner did not reside in
Pinagtong-ulan, as they had "rarely seen" him in the area.
Meanwhile, Pablo Lorzano,68 in his Affidavit, attested that although
the Lipa property was sometimes used for gatherings, he did "not
recall having seen" petitioner in their barangay. On the other hand,
private respondent69 and Eladio de Torres,70 both residents of Brgy.
Calamias, reasoned that petitioner was not a resident of Lipa City
because he has no work or family there.
The COMELEC did not discuss these Affidavits in its assailed
Resolution. It was correct in doing so, particularly considering that
these Affidavits were duly controverted by those presented by
petitioner.
Moreover, even assuming the truth of the allegation in the Affidavits
that petitioner was "rarely seen" in the area, this does not preclude
the possibility of his residence therein. In Fernandez v. House of
Representatives Electoral Tribunal,71 we held that the averments of
certain barangay health workers that they failed to see a particular
candidate whenever they made rounds of the locality of which he
was supposed to be a resident is of no moment. It is possible that
the candidate was out of the house to attend to his own business at
the time. The law does not require a person to be in his home
twenty-four (24) hours a day, seven (7) days a week, to fulfill the
residency requirement.
The ruling on petitioners evidence
We now evaluate how the COMELEC appreciated petitioners
evidence:
a) Petitioners Income Tax Returns for 2007 and 2008
The Income Tax Returns of petitioner presented below showed that
petitioner had been paying his Income Tax (2007 and 2008) to the
Revenue District Office of Lipa City. In waving aside his Income Tax
Returns, the COMELEC held that these were not indications of
residence since Section 51(B) of the National Internal Revenue
Code does not only state that it shall be filed in a persons legal
residence, but that it may alternatively be filed in a persons principal
place of business.
In particular, Section 51(B) of the National Internal Revenue
Code72 provides that the Income Tax Return shall be filed either in
the place where a person resides or where his principal place of
business is located. However, private respondents own evidence
a Certification from the City Permits and Licensing Office of Lipa
City showed that there was no business registered in the City
under petitioners name.
Thus, COMELEC failed to appreciate that precisely because an
individual income tax return may only be filed either in the legal
residence OR the principal place of business, as prescribed under
the law, the fact that Sabili was filing his Income Tax Returns in Lipa
City notwithstanding that he had no business therein showed that he
had actively elected to establish his residence in that city.

San Juan, Batangas.73Hence, while petitioner may be submitting his

income tax return in the same RDO, the declaration therein is
unmistakable. Petitioner considers Lipa City to be his domicile.
b) Certification from the Barangay Captain of Pinagtong-ulan
The COMELEC did not consider in the first instance the Certification
issued by Pinagtong-ulan Barangay Captain Dominador
Honrade74 (Honrade) that petitioner had been residing in Brgy
Pinagtong-ulan since 2007. When this oversight was raised as an
issue in petitioners Motion for Reconsideration, the COMELEC
brushed it aside on the ground that the said Certification was not
sworn to before a notary public and, hence, "cannot be relied on."
Subsequently, petitioner presented another, substantially identical,
Certification from the said Pinagtong-ulan Barangay Captain, save
for the fact that it had now been sworn to before a notary public.
We disagree with the COMELECs treatment of the Barangay
Captains Certification and find the same tainted with grave abuse of
discretion.
Even without being sworn to before a notary public, Honrades
Certification would not only be admissible in evidence, but would
also be entitled to due consideration.
Rule 130, Section 44 of the Rules of Court provides:
SEC. 44. Entries in official records.Entries in official records made
in the performance of his duty by a public officer of the Philippines,
or by a person in the performance of a duty specially enjoined by
law, are prima facieevidence of the facts therein stated.
In Country Bankers Insurance Corporation v. Lianga Bay and
Community Multi-purpose Cooperative, Inc.,75 we explained that the
following three (3) requisites must concur for entries in official
records to be admissible in evidence:
(a) The entry was made by a public officer, or by another
person specially enjoined by law to do so;
(b) It was made by the public officer in the performance of
his duties, or by such other person in the performance of a
duty specially enjoined by law; and
(c) The public officer or other person had sufficient
knowledge of the facts stated by him, which facts must
have been acquired by him personally or through official
information.
As to the first requisite, the Barangay Secretary is required by the
Local Government Code to "keep an updated record of all
inhabitants of the barangay."76 Regarding the second requisite, we
have explicitly recognized in Mitra v. Commission on Elections, 77 that
"it is the business of a punong barangay to know who the residents
are in his own barangay." Anent the third requisite, the Barangay
Captains exercise of powers and duties78 concomitant to his position
requires him to be privy to these records kept by the Barangay
Secretary.

The Dissent claims that since the jurisdiction of RDO Lipa City
includes both San Juan and Lipa City, petitioners filing of his ITR
therein can also support an intent to remain in San Juan, Batangas petitioners domicile of origin.

Accordingly, there is basis in faulting the COMELEC for its failure to

consider Honrades Certification on the sole ground that it was
initially not notarized.

However, a simple perusal of the Income Tax Returns and Revenue

Official Receipts for 2007 and 2008 shows that petitioner invariably
declares his residence to be Pinagtong-ulan, Lipa City, rather than

Meanwhile, the Dissent opines that the sworn affidavit of the

barangay chair of Pinagtong-ulan that petitioner is a resident of Lipa
City does not help petitioners case because it was not shown that

the term "resident" as used therein carries the same meaning as

domicile, that is, not merely bodily presence but also, animus
manendi or intent to return. This Court has ruled otherwise.
In Mitra v. Commission on Elections,79 the declaration of Aborlans
punong barangay that petitioner resides in his barangay was taken
to have the same meaning as domicile, inasmuch as the said
declaration was made in the face of the Courts recognition that
Mitra "might not have stayed in Aborlan nor in Palawan for most of
2008 and 2009 because his office and activities as a Representative
were in Manila."
Assuming that the barangay captains certification only pertains to
petitioners bodily presence in Pinagtong-ulan, still, the COMELEC
cannot deny the strength of this evidence in establishing petitioners
bodily presence in Pinagtong-ulan since 2007.

Moreover, it is notable that Palomares assertion in her affidavit that

she and petitioner have been living in the Pinagtong-ulan property
since April 2007 is corroborated by other evidence, including the
affidavits of Pinagtong-ulan barangay officials and neighbors.
d) Affidavits from a previous property owner, neighbors, certificate
from parish and designation from socio-civic organization
The Affidavit issued by Leonila Suarez83 (erstwhile owner of the Lipa
house and lot) states that in April 2007, after she received the down
payment for the Lipa property and signed an agreement that
petitioner would settle her bank obligations in connection with the
said transaction, he and Palomares actually started residing at
Pinagtong-ulan. The COMELEC brushed this Affidavit aside as one
that "merely narrates the circumstances surrounding the sale of the
property and mentions in passing that Sabili and Palomares lived in
Pinagtong-ulan since April 2007 up to the present."84

c) Affidavit of petitioners common law wife

To substantiate his claim of change of domicile, petitioner also
presented the affidavit of Palomares, wherein the latter swore that
she and petitioner began residing in Lipa City in 2007, and that the
funds used to purchase the Lipa property were petitioners personal
funds. The COMELEC ruled that the Affidavit was self-serving for
having been executed by petitioners common-law wife. Also,
despite the presentation by petitioner of other Affidavits stating that
he and Palomares had lived in Brgy. Pinagtong-ulan since 2007, the
latters Affidavit was rejected by the COMELEC for having no
independent collaboration.
Petitioner faults the COMELECs stand, which it claims to be
inconsistent. He argues that since the property regime between him
and Palomares is governed by Article 148 of the Family Code
(based on the parties actual contribution) as the COMELEC
stressed, then Palomaress Affidavit expressly stating that
petitioners money alone had been used to purchase the Lipa
property (notwithstanding that it was registered in her name) was not
self-serving, but was in fact, a declaration against interest.
Petitioners argument that Palomaress affidavit was a "declaration
against interest" is, strictly speaking, inaccurate and irrelevant. A
declaration against interest, under the Rules of Civil Procedure,
refers to a "declaration made by a person deceased, or unable to
testify against the interest of a declarant, if the fact asserted in the
declaration was at the time it was made so far contrary to
declarants own interest, that a reasonable man in his position would
not have made the declaration unless he believed it to be true."80 A
declaration against interest is an exception to the hearsay rule. 81 As
such, it pertains only to the admissibility of, not the weight accorded
to, testimonial evidence.82
Nevertheless, we see the logic in petitioners claim that the
COMELEC had committed grave abuse of discretion in being
inconsistent in its stand regarding Palomares, particularly regarding
her assertion that the Lipa property had been purchased solely with
petitioners money. If the COMELEC accepts the registration of the
Lipa property in her name to be accurate, her affidavit disavowing
ownership thereof in favor of petitioner was far from self-serving as it
ran counter to her (and her childrens) property interest.
The Dissent states that it was not unreasonable for the COMELEC
to believe that Palomares may have committed misrepresentations
in her affidavit considering that she had perjured herself as an
informant on the birth certificates of her children with respect to the
supposed date and place of her marriage to petitioner. However, this
was not the reason propounded by the COMELEC when it rejected
Palomares affidavit.

We disagree with the COMELECs appreciation of the Suarez

Affidavit. Since she was its owner, transactions for the purchase of
the Lipa property was within her personal knowledge. Ordinarily, this
includes the arrangement regarding who shall pay for the property
and when, if ever, it shall be occupied by the buyers. We thus
consider that her statements impact positively on petitioners claim
of residence.
The Dissent on the other hand argues that the claim that petitioner
started living in the Lipa house and lot in April 2007 is made dubious
by the fact that (1) there might not be enough time to effect an actual
and physical change in residence a month before the May 2007
elections when petitioner ran for representative of the 4th District of
Batangas; and (2) the Deed of Absolute Sale was notarized, and the
subsequent transfer of ownership in the tax declaration was made,
only in August 2008.
Before further discussing this, it is pertinent to point out that these
were not the reasons adduced by the COMELEC in the assailed
Resolutions. Assuming that the above reasons were the unuttered
considerations of the COMELEC in coming up with its conclusions,
such reasoning still exhibits grave abuse of discretion.
As to the Dissents first argument, it must be remembered that a
transfer of domicile/residence need not be completed in one single
instance. Thus, in Mitra v. Commission on Elections,85 where the
evidence showed that in 2008, petitioner Mitra had leased a small
room at Maligaya Feedmills located in Aborlan and, in 2009
purchased in the same locality a lot where he began constructing his
house, we recognized that petitioner "transferred by incremental
process to Aborlan beginning 2008 and concluded his transfer in
early 2009" and thus, he transferred his residence from Puerto
Princesa City to Aborlan within the period required by law. We
cannot treat the transfer to the Pinagtong-ulan house any less than
we did Mitras transfer to the Maligaya Feedmills room.1wphi1
Moreover, the Joint Affidavit of twenty-one (21) Pinagtong-ulan
residents, including former and incumbent barangay officials, attests
that petitioner had begun living in the Pinagtong-ulan house and lot
before the May 2007 elections such that it was where his
coordinators for the May 2007 elections went to meet him.86 Jacinto
Cornejo Sr., the contractor who renovated the Pinagtong-ulan house
when it was bought by petitioner, also swore that petitioner and his
family began living therein even while it was being
renovated.87 Another Affidavit petitioner adduced was that of
Rosalinda Macasaet, a resident of Brgy. Pinagtong-ulan,88 who
stated that she also sold a lot she owned in favor of petitioner and
Palomares. The latter bought her lot since it was adjacent to the
Lipa house and lot they had earlier acquired. Macasaet also swore
that the couple had actually resided in the house located in

Pinagtong-ulan since April 2007, and that she knew this because her
own house was very near the couples own. Macasaets Affidavit is a
positive assertion of petitioners actual physical presence in Brgy.
Pinagtong-ulan, Lipa City.
While private respondent had adduced affidavits of two Pinagtongulan residents (that of Violeta Fernandez89 and Rodrigo
Macasaet)90 attesting that petitioner could not be a resident of
Pinagtong-ulan as he was "rarely seen" in the area, these affidavits
were controverted by the Joint affidavit of twenty-one (21)
Pinagtong-ulan residents who plainly accused the two of lying.
Meanwhile, the affidavits of private respondent91 and Eladio de
Torres92 stating that petitioner is not a resident of Lipa City because
he has no work or family there is hardly worthy of credence since
both are residents of Barangay Calamias, which is, and private
respondent does not contest this, about 15 kilometers from
Pinagtong-ulan.
As to the Dissents second argument, the fact that the notarization of
the deed of absolute sale of the property was made months after
April 2007 does not negate petitioners claim that he started residing
therein in April 2007. It is clear from the Affidavit of the propertys
seller, Leonila Suarez, that it was not yet fully paid in April 2007, so it
was understandable that a deed of absolute sale was not executed
at the time. Thus:
That initially, the contract to sell was entered into by and between
Mr. & Mrs. Meynardo Asa Sabili and Bernadette Palomares and
myself, but eventually the spouses changed their mind, and after the
couple settled all my loan obligations to the bank, they requested me
to put the name of Ms. Bernadette P. Palomares instead of Mr. &
Mrs. Meynardo Asa Sabili and Bernadette Palomares in the absolute
deed of sale;
That it was Mr. Meynardo Asa Sabili who came to my former
residence at Barangay Pinagtong-ulan sometime in the month of
April 2007. At that time, Mr. Meynardo Asa Sabili was still running for
Representative (Congressman) in the 4th District of Batangas;
That after payment of the down payment and signing of an
agreement that Mr. Meynardo Asa Sabili will be the one to settle my
bank obligations, Mr. & Mrs. Meynardo A. Sabili and Bernadette
Palomares had an actual transfer of their residence at Barangay
Pinagtong-ulan, Lipa City;
That they started living and residing in Pinagtong-ulan in the month
of April, 2007 up to this point in time; xxx93
As to the rest of the documents presented by petitioner, the
COMELEC held that the Memorandum issued by the Guardians
Brotherhood Inc. San Jose/Lipa City Chapter merely declares the
designation of petitioner in the organization, without any showing
that residence in the locality was a requirement for that designation.
Meanwhile, the Certificate of Appreciation was nothing more than an
acknowledgment of petitioners material and financial support, and
not an indication of residence.
We agree that considered separately, the Guardians Brotherhood
Memorandum and the Pinagtong-ulan Parish Certificate of
Appreciation do not establish petitioners residence in Pinagtongulan, Lipa City. Nevertheless, coupled with the fact that petitioner
had twice been elected as Provincial Board Member representing
the Fourth District of Batangas, which encompasses Lipa City,
petitioners involvement in the religious life of the community, as
attested to by the certificate of appreciation issued to him by the
Pinagtong-ulan parish for his "material and financial support" as
President of the Barangay Fiesta Committee in 2009, as well as his

assumption of a leadership role in the socio-civic sphere of the

locality as a member of the advisory body of the Pinagtong-ulan,
San Jose/Lipa City Chapter of the Guardians Brotherhood Inc. ,
manifests a significant level of knowledge of and sensitivity to the
needs of the said community. Such, after all, is the rationale for the
residency requirement in our elections laws, to wit:
The Constitution and the law requires residence as a qualification for
seeking and holding elective public office, in order to give
candidates the opportunity to be familiar with the needs, difficulties,
aspirations, potentials for growth and all matters vital to the welfare
of their constituencies; likewise, it enables the electorate to evaluate
the office seekers qualifications and fitness for the job they aspire
for xxx. 94
Considering all of the foregoing discussion, it is clear that while
separately, each evidence presented by petitioner might fail to
convincingly show the fact of his residence at Pinagtong-ulan since
2007, collectively, these pieces of evidence tend to sufficiently
establish the said fact.
Petitioners actual physical presence in Lipa City is established not
only by the presence of a place (Pinagtong-ulan house and lot) he
can actually live in, but also the affidavits of various persons in
Pinagtong-ulan, and the Certification of its barangay captain.
Petitioners substantial and real interest in establishing his domicile
of choice in Lipa City is also sufficiently shown not only by the
acquisition of additional property in the area and the transfer of his
voter registration, but also his participation in the communitys sociocivic and religious life, as well as his declaration in his ITR that he is
a resident thereof.
We therefore rule that petitioner has been able to adduce substantial
evidence to demonstrate compliance with the one-year residency
requirement for local elective officials under the law.
In view of this Courts finding that petitioner has not misrepresented
his residence at Pinagtong-ulan and the duration thereof, there is no
need to further discuss whether there was material and deliberate
misrepresentation of the residency qualification in his COC.1wphi1
As a final note, we do not lose sight of the fact that Lipa City voters
manifested their own judgment regarding the qualifications of
petitioner when they voted for him, notwithstanding that the issue of
his residency qualification had been raised prior to the elections.
Petitioner has garnered the highest number of votes (55,268 votes
as opposed to the 48,825 votes in favor of his opponent, Oscar
Gozos)95 legally cast for the position of Mayor of Lipa City and has
consequently been proclaimed duly elected municipal Mayor of Lipa
City during the last May 2010 elections96
In this regard, we reiterate our ruling in Frivaldo v. Commission on
Elections97 that "(t)o successfully challenge a winning candidate's
qualifications, the petitioner must clearly demonstrate that the
ineligibility is so patently antagonistic to constitutional and legal
principles that overriding such ineligibility and thereby giving effect to
the apparent will of the people, would ultimately create greater
prejudice to the very democratic institutions and juristic traditions
that our Constitution and laws so zealously protect and promote."
Similarly, in Japzon v. Commission on Elections,98 we concluded that
"when the evidence of the alleged lack of residence qualification of a
candidate for an elective position is weak or inconclusive and it
clearly appears that the purpose of the law would not be thwarted by
upholding the victor's right to the office, the will of the electorate
should be respected. For the purpose of election laws is to give
effect to, rather than frustrate, the will of the voters."

In sum, we grant the Petition not only because petitioner sufficiently

established his compliance with the one-year residency requirement
for local elective officials under the law. We also recognize that
"(a)bove and beyond all, the determination of the true will of the
electorate should be paramount. It is their voice, not ours or of
anyone else, that must prevail. This, in essence, is the democracy
we continue to hold sacred."99
WHEREFORE, premises considered, the Petition is GRANTED. The
assailed COMELEC Resolutions dated 26 January 2010 and 17
August 2010 in Florencio Librea v. Meynardo A. Sabili [SPA No. 09047(DC)] are ANNULLED. Private respondents Petition to cancel
the Certificate of Candidacy of Meynardo A. Sabili is DENIED. The
Status Quo Ante Order issued by this Court on 7 September 2010 is
MADE PERMANENT.
SO ORDERED.
G.R. No. 193808

June 26, 2012

LUISK. LOKIN, JR. and TERESITA F. PLANAS, Petitioners,

vs.
COMMISSION ON ELECTIONS (COMELEC), CITIZENS BATTLE
AGAINST CORRUPTION PARTY LIST represented by VIRGINIA
S. JOSE SHERWIN N. TUGNA, and CINCHONA CRUZGONZALES, Respondents,
DECISION
SERENO, J.:
The present petition having been flied beyond the reglementary
period, Rule 64 of the Rules of Court compels a dismissal on this
basis alone. Despite petitioner's inexplicable disregard of basic
concepts, this Court deems it appropriate to reiterate the specific
procedure for the review of judgments made by the Commission on
Elections (COMELEC) as laid down in Rule 64, and how it is
differentiated from the more general remedy afforded by Rule 65.
On 5 July 2010, the COMELEC First Division issued a
Resolution1 expunging the Certificate of Nomination which included
herein petitioners as representatives of the party-list group known as
Citizens Battle Against Corruption (CIBAC). The COMELEC en
banc affirmed the said Resolution, prompting Luis Lokin, Jr. and
Teresita F. Planas to file the present Petition for Certiorari.
Petitioners allege grave abuse of discretion on the part of the
COMELEC in issuing both Resolutions, praying that they be
recognized as the legitimate nominees of CIBAC party-list, and that
petitioner Lokin, Jr. be proclaimed as the CIBAC party-list
representative to the House of Representatives.
Respondent CIBAC party-list is a multi-sectoral party
registered2 under Republic Act No. (R.A.) 7941, otherwise known as
the Party- List System Act. As stated in its constitution and bylaws,
the platform of CIBAC is to fight graft and corruption and to promote
ethical conduct in the countrys public service.3 Under the leadership
of the National Council, its highest policymaking and governing
body, the party participated in the 2001, 2004, and 2007
elections.4 On 20 November 2009, two different entities, both
purporting to represent CIBAC, submitted to the COMELEC a
"Manifestation of Intent to Participate in the Party-List System of
Representation in the May 10, 2010 Elections." The first
Manifestation5 was signed by a certain Pia B. Derla, who claimed to
be the partys acting secretary-general. At 1:30 p.m. of the same
day, another Manifestation6 was submitted by herein respondents
Cinchona Cruz-Gonzales and Virginia Jose as the partys vicepresident and secretary-general, respectively.

On 15 January 2010, the COMELEC issued Resolution No.

87447giving due course to CIBACs Manifestation, "WITHOUT
PREJUDICE TO the determination which of the two factions of the
registered party-list/coalitions/sectoral organizations which filed two
(2) manifestations of intent to participate is the official representative
of said party-list/coalitions/sectoral organizations xxx."8
On 19 January 2010, respondents, led by President and
Chairperson Emmanuel Joel J. Villanueva, submitted the Certificate
of Nomination9 of CIBAC to the COMELEC Law Department. The
nomination was certified by Villanueva and Virginia S. Jose. On 26
March 2010, Pia Derla submitted a second Certificate of
Nomination,10 which included petitioners Luis Lokin, Jr. and Teresita
Planas as party-list nominees. Derla affixed to the certification her
signature as "acting secretary-general" of CIBAC.
Claiming that the nomination of petitioners Lokin, Jr. and Planas was
unauthorized, respondents filed with the COMELEC a "Petition to
Expunge From The Records And/Or For Disqualification," seeking to
nullify the Certificate filed by Derla. Respondents contended that
Derla had misrepresented herself as "acting secretary-general,"
when she was not even a member of CIBAC; that the Certificate of
Nomination and other documents she submitted were unauthorized
by the party and therefore invalid; and that it was Villanueva who
was duly authorized to file the Certificate of Nomination on its
behalf.11
In the Resolution dated 5 July 2010, the COMELEC First Division
granted the Petition, ordered the Certificate filed by Derla to be
expunged from the records, and declared respondents faction as
the true nominees of CIBAC.12Upon Motion for Reconsideration
separately filed by the adverse parties, the COMELEC en
banc affirmed the Divisions findings. In a per curiam Resolution
dated 31 August 2010,13 the Commission reiterated that Pia Derla
was unable to prove her authority to file the said Certificate, whereas
respondents presented overwhelming evidence that Villanueva
deputized CIBAC Secretary General Virginia Jose to submit the
Certificate of Nomination pursuant to CIBACs Constitution and
bylaws.
Petitioners now seek recourse with this Court in accordance with
Rules 64 and 65 of the Rules of Court, raising these issues: I)
Whether the authority of Secretary General Virginia Jose to file the
partys Certificate of Nomination is an intra-corporate matter,
exclusively cognizable by special commercial courts, and over which
the COMELEC has no jurisdiction; and II) Whether the COMELEC
erred in granting the Petition for Disqualification and recognizing
respondents as the properly authorized nominees of CIBAC partylist.
As earlier stated, this Court denies the petition for being filed outside
the requisite period. The review by this Court of judgments and final
orders of the COMELEC is governed specifically by Rule 64 of the
Rules of Court, which states:
Sec. 1. Scope. This rule shall govern the review of judgments and
final orders or resolutions of the Commission on Elections and the
Commission on Audit.
Sec. 2. Mode of review. A judgment or final order or resolution of the
Commission on Elections and the Commission on Audit may be
brought by the aggrieved party to the Supreme Court on certiorari
under Rule 65, except as hereinafter provided.
The exception referred to in Section 2 of this Rule refers precisely to
the immediately succeeding provision, Section 3 thereof,14 which
provides for the allowable period within which to file petitions for

certiorari from judgments of both the COMELEC and the

Commission on Audit. Thus, while Rule 64 refers to the same
remedy of certiorari as the general rule in Rule 65, they cannot be
equated, as they provide for different reglementary periods.15 Rule
65 provides for a period of 60 days from notice of judgment sought
to be assailed in the Supreme Court, while Section 3 expressly
provides for only 30 days, viz:

While the petitioner is correct in his historical data about the Courts
treatment of the periods for the filing of the different modes of
review, he misses out on the reason why the period under Section 3,
Rule 64 has been retained. The reason, as made clear above, is
constitutionally-based and is no less than the importance our
Constitution accords to the prompt determination of election
results.18 x x x. (Emphasis supplied, footnotes omitted.)

SEC. 3. Time to file petition.The petition shall be filed within thirty

(30) days from notice of the judgment or final order or resolution
sought to be reviewed. The filing of a motion for new trial or
reconsideration of said judgment or final order or resolution, if
allowed under the procedural rules of the Commission concerned,
shall interrupt the period herein fixed. If the motion is denied, the
aggrieved party may file the petition within the remaining period, but
which shall not be less than five (5) days in any event, reckoned
from notice of denial.

In this case, petitioners do not even attempt to explain why the

Petition was filed out of time. Clearly, they are aware of the
applicable period for filing, as they themselves invoke the remedy
under Rule 64 in conjunction with Rule 65. Hence, there is no
acceptable reason for their failure to comply with the proper
procedure. But even if this Court were to apply liberality and take
cognizance of the late Petition, the arguments therein are
flawed. The COMELEC has jurisdiction over cases pertaining to
party leadership and the nomination of party-list
representatives.

Petitioner received a copy of the first assailed Resolution on 12 July

2010. Upon the Motion for Reconsideration filed by petitioners on 15
July 2010, the COMELEC en banc issued the second assailed
Resolution on 31 August 2010. This per curiam Resolution was
received by petitioners on 1 September 2010.16 Thus, pursuant to
Section 3 above, deducting the three days it took petitioners to file
the Motion for Reconsideration, they had a remaining period of 27
days or until 28 September 2010 within which to file the Petition for
Certiorari with this Court.
However, petitioners filed the present Petition only on 1 October
2010, clearly outside the required period. In Pates v. Commission on
Elections and Domingo v. Commission on Elections,17 we have
established that the fresh-period rule used in Rule 65 does not
similarly apply to the timeliness of petitions under Rule 64. In Pates,
this Court dismissed the
Petition for Certiorari on the sole ground that it was belatedly filed,
reasoning thus:
x x x. While it is true that a litigation is not a game of technicalities, it
is equally true that every case must be prosecuted in accordance
with the prescribed procedure to ensure an orderly and speedy
administration of justice. There have been some instances wherein
this Court allowed a relaxation in the application of the rules, but this
flexibility was "never intended to forge a bastion for erring litigants to
violate the rules with impunity."
xxx

xxx

xxx

Under this unique nature of the exceptions, a party asking for the
suspension of the Rules of Court comes to us with the heavy burden
of proving that he deserves to be accorded exceptional treatment.
Every plea for a liberal construction of the Rules must at least be
accompanied by an explanation of why the party-litigant failed to
comply with the rules and by a justification for the requested liberal
construction.
xxx

xxx

xxx

x x x. Section 3, Article IX-C of the Constitution expressly requires

that the COMELECs rules of procedure should expedite the
disposition of election cases. This Court labors under the same
command, as our proceedings are in fact the constitutional
extension of cases that start with the COMELEC.
Based on these considerations, we do not find convenience and
uniformity to be reasons sufficiently compelling to modify the
required period for the filing of petitions for certiorari under Rule 64.

Petitioners contend that the COMELEC never should have taken

cognizance of respondents Petition to Expunge and/or for
Disqualification. They have reached this conclusion by
characterizing the present matter as an intra-corporate dispute and,
thus, cognizable only by special commercial courts, particularly the
designated commercial court in this case, the Regional Trial Court in
Pasig City.19 Pia Derla purportedly filed the Certificate of Nomination
pursuant to the authority granted by the Board of Trustees of the
"CIBAC Foundation, Inc.," the non-stock entity that is registered with
the Securities and Exchange Commission (SEC).20
Thus, petitioners insist that the group that participated in the partylist system in the 2004 and 2007 elections was the SEC-registered
entity, and not the National Council, which had allegedly become
defunct since 2003. That was the year when CIBAC Foundation, Inc.
was established and registered with the SEC.21 On the other hand,
respondents counter that the foundation was established solely for
the purpose of acting as CIBACs legal and financial arm, as
provided by the partys Constitution and bylaws. It was never
intended to substitute for, or oust CIBAC, the party-list itself. 22
Even as petitioners insisted on the purely intra-corporate nature of
the conflict between "CIBAC Foundation" and the CIBAC Sectoral
Party, they submitted their Certificate of Nomination and
Manifestation of Intent to participate in the party-list elections.
Precisely, petitioners were seeking the COMELECs approval of their
eligibility to participate in the upcoming party-list elections. In effect,
they invoke its authority under the Party-List System Act. 23 Contrary
to their stance that the present dispute stemmed from an intracorporate matter, their submissions even recognize the COMELECs
constitutional power to enforce and administer all laws relative to the
conduct of an election, plebiscite, initiative, referendum, and
recall.24 More specifically, as one of its constitutional functions, the
COMELEC is also tasked to "register, after sufficient publication,
political parties, organizations, or coalitions which, in addition to
other requirements, must present their platform or program of
government."25
In any case, the COMELECs jurisdiction to settle the struggle for
leadership within the party is well established. This singular power to
rule upon questions of party identity and leadership is exercised by
the COMELEC as an incident to its enforcement powers. In Laban
ng Demokratikong Pilipino v. Commission on Elections,26 the Court
held:
x x x. Corollary to the right of a political party "to identify the people
who constitute the association and to select a standard bearer who
best represents the partys ideologies and preference" is the right to
exclude persons in its association and to not lend its name and

10

prestige to those which it deems undeserving to represent its ideals.

A certificate of candidacy makes known to the COMELEC that the
person therein mentioned has been nominated by a duly authorized
political group empowered to act and that it reflects accurately the
sentiment of the nominating body. A candidates political party
affiliation is also printed followed by his or her name in the certified
list of candidates. A candidate misrepresenting himself or herself to
be a partys candidate, therefore, not only misappropriates the
partys name and prestige but foists a deception upon the electorate,
who may unwittingly cast its ballot for him or her on the mistaken
belief that he or she stands for the partys principles. To prevent this
occurrence, the COMELEC has the power and the duty to step in
and enforce the law not only to protect the party but, more
importantly, the electorate, in line with the Commissions broad
constitutional mandate to ensure orderly elections.27 (Emphasis
supplied.)

nominees shall be allowed after the same shall have been submitted
to the COMELEC except in cases where the nominee dies, or
withdraws in writing his nomination, becomes incapacitated in which
case the name of the substitute nominee shall be placed last in the
list. Incumbent sectoral representatives in the House of
Representatives who are nominated in the party-list system shall not
be considered resigned.

Similar to the present case, Laban delved into the issue of

leadership for the purpose of determining which officer or member
was the duly authorized representative tasked with filing the
Certificate of Nomination, pursuant to its Constitution and bylaws, to
wit:

By virtue of the aforesaid mandate of the Party-List Law vesting the

COMELEC with jurisdiction over the nomination of party-list
representatives and prescribing the qualifications of each nominee,
the COMELEC promulgated its "Rules on Disqualification Cases
Against Nominees of Party-List Groups/ Organizations Participating
in the 10 May 2010 Automated National and Local
Elections."31 Adopting the same qualifications of party-list nominees
listed above, Section 6 of these Rules also required that:

The only issue in this case, as defined by the COMELEC itself, is

who as between the Party Chairman and the Secretary General has
the authority to sign certificates of candidacy of the official
candidates of the party. Indeed, the petitioners Manifestation and
Petition before the
COMELEC merely asked the Commission to recognize only those
certificates of candidacy signed by petitioner Sen. Angara or his
authorized representative, and no other.28
In the 2010 case Atienza v. Commission on Elections,29 it was
expressly settled that the COMELEC possessed the authority to
resolve intra-party disputes as a necessary tributary of its
constitutionally mandated power to enforce election laws and
register political parties. The Court therein cited Kalaw v.
Commission on Elections and Palmares v. Commission on
Elections, which uniformly upheld the COMELECs jurisdiction over
intra-party disputes:
The COMELECs jurisdiction over intra-party leadership disputes
has already been settled by the Court. The Court ruled in Kalaw v.
Commission on Elections that the COMELECs powers and
functions under Section 2, Article IX-C of the Constitution, "include
the ascertainment of the identity of the political party and its
legitimate officers responsible for its acts." The Court also declared
in another case that the COMELECs power to register political
parties necessarily involved the determination of the persons who
must act on its behalf. Thus, the COMELEC may resolve an intraparty leadership dispute, in a proper case brought before it, as an
incident of its power to register political parties.30
Furthermore, matters regarding the nomination of party-list
representatives, as well as their individual qualifications, are outlined
in the Party-List System Law. Sections 8 and 9 thereof state: Sec. 8.
Nomination of Party-List Representatives. Each registered party,
organization or coalition shall submit to the COMELEC not later than
forty-five (45) days before the election a list of names, not less than
five (5), from which party-list representatives shall be chosen in case
it obtains the required number of votes.
A person may be nominated in one (1) list only. Only persons who
have given their consent in writing may be named in the list. The list
shall not include any candidate for any elective office or a person
who has lost his bid for an elective office in the immediately
preceding election. No change of names or alteration of the order of

Sec. 9. Qualifications of Party-List Nominees. No person shall be

nominated as party-list representative unless he is a natural-born
citizen of the Philippines, a registered voter, a resident of the
Philippines for a period of not less than one (1)year immediately
preceding the day of the election, able to read and write, a bona fide
member of the party or organization which he seeks to represent for
at least ninety (90) days preceding the day of the election, and is at
least twenty-five (25) years of age on the day of the election.

The party-list group and the nominees must submit documentary

evidence in consonance with the Constitution, R.A. 7941 and other
laws to duly prove that the nominees truly belong to the
marginalized and underrepresented sector/s, the sectoral party,
organization, political party or coalition they seek to represent, which
may include but not limited to the following:
a. Track record of the party-list group/organization showing
active participation of the nominee/s in the undertakings of
the party-list group/organization for the advancement of
the marginalized and underrepresented sector/s, the
sectoral party, organization, political party or coalition they
seek to represent;
b. Proofs that the nominee/s truly adheres to the
advocacies of the party-list group/organizations (prior
declarations, speeches, written articles, and such other
positive actions on the part of the nominee/s showing
his/her adherence to the advocacies of the party-list
group/organizations);
c. Certification that the nominee/s is/are a bona fide
member of the party-list group/ organization for at least
ninety (90) days prior to the election; and
d. In case of a party-list group/organization seeking
representation of the marginalized and underrepresented
sector/s, proof that the nominee/s is not only an advocate
of the party-list/organization but is/are also a bona fide
member/s of said marginalized and underrepresented
sector.
The Law Department shall require party-list group and nominees to
submit the foregoing documentary evidence if not complied with
prior to the effectivity of this resolution not later than three (3) days
from the last day of filing of the list of nominees.
Contrary to petitioners stance, no grave abuse of discretion is
attributable to the COMELEC First Division and the COMELEC en
banc.1wphi1 The tribunal correctly found that Pia Derlas alleged
authority as "acting secretary-general" was an unsubstantiated

11

allegation devoid of any supporting evidence. Petitioners did not

submit any documentary evidence that Derla was a member of
CIBAC, let alone the representative authorized by the party to
submit its Certificate of Nomination.32 The COMELEC ruled:
A careful perusal of the records readily shows that Pia B. Derla, who
has signed and submitted, as the purported Acting Secretary
General of CIBAC, the Certificates of Nomination of Respondents,
has no authority to do so. Despite Respondents repeated claim that
Ms. Derla is a member and officer of CIBAC, they have not
presented any proof in support of the same. We are at a loss as to
the manner by which Ms. Derla has assumed the post, and We see
nothing but Respondents claims and writings/certifications by Ms.
Derla herself that point to that alleged fact. Surely, We cannot rely
on these submissions, as they are the very definition of self-serving
declarations.
On the other handWe cannot help but be convinced that it was
Emmanuel Joel J. Villanueva, as the Party President and Chairman,
who had been given the sole authority, at least for the 10 May 2010
Elections, to submit the list of nominees for the Party. The records
would show that, in accordance with the Partys Constitution and bylaws, its National Council, the highest policymaking and governing
body of the Party, met on 12 November 2009 and there being a
quorum, then proceeded to elect its new set of officers, which
included Mr. Villanueva as both Party President and Party
Chairman, and Virginia S. Jose as Party Secretary General. During
the same meeting, the Partys New Electoral Congress, which as
per the CIBACs Constitution and By-Laws, was also composed of
the National Council Members and had the task of choosing the
nominees for the Party in the Party-List Elections, unanimously ruled
to delegate to the Party President such latter function. This set of
facts, which had not been belied by concrete contrary evidence,
weighed heavily against Respondents and favorably for Petitioner.33
Pia Derla, who is not even a member of CIBAC, is thus a virtual
stranger to the party-list, and clearly not qualified to attest to
petitioners as CIBAC nominees, or certify their nomination to the
COMELEC. Petitioners cannot use their registration with the SEC as
a substitute for the evidentiary requirement to show that the
nominees, including Derla, are bona fide members of the party.
Petitioners Planas and Lokin, Jr. have not even presented evidence
proving the affiliation of the so-called Board of Trustees to the
CIBAC Sectoral Party that is registered with COMELEC.
Petitioners cannot draw authority from the Board of Trustees of the
SEC-registered entity, because the Constitution of CIBAC expressly
mandates that it is the National Council, as the governing body of
CIBAC, that has the power to formulate the policies, plans, and
programs of the Party, and to issue decisions and resolutions
binding on party members and officers.34 Contrary to petitioners
allegations, the National Council of CIBAC has not become defunct,
and has certainly not been replaced by the Board of Trustees of the
SEC-registered entity. The COMELEC carefully perused the
documents of the organization and outlined the process followed by
the National Council before it complied with its task of choosing the
partys nominees.This was based on the "Minutes of Meeting of
CIBAC Party-List National Council" held on 12 November 2009,
which respondents attached to their Memorandum.35
For its part, the COMELEC en banc also enumerated the
documentary evidence that further bolstered respondents claim that
it is Chairman Villanueva and Secretary General Virginia Jose who
were duly authorized to submit the Certificate of Nomination to the
COMELEC.36 These include:

a. The Joint Affidavit of Resolutions of the CIBAC National

Council and the National Electoral Congress of CIBAC
dated 12 November 2009;
b. Certificate of Deputization and Delegation of Authority
issued to CIBAC Secretary-General Virginia S. Jose by the
CIBAC President;
c. Constitution and By-Laws of CIBAC as annexed to its
Petition for Registration as Sectoral Organization Under
the Party-List System filed by CIBAC on 13 November
2000; and
d. Manifestation dated 8 January 2010 by CIBACs
Secretary General Virginia S. Jose providing the official list
of officers of CIBAC.37
WHEREFORE , finding no grave abuse of discretion on the part of
the COMELEC in issuing the assailed Resolutions, the instant
Petition is DISMISSED. This Court AFFIRMS the judgment of the
COMELEC expunging from its records the Certificate of Nomination
filed on 26 March 2010 by Pia B. Derla. The nominees, as listed in
the Certificate of Nomination filed on 19 January 2010 by Emmanuel
Joel J. Villanueva, President and Chairman of Citizens Battle
Against Corruption (CIBAC) Party List, are recognized as the
legitimate nominees of the said party.
SO ORDERED.
G.R. No. 190793

June 19, 2012

MAGDALO PARA SA PAGBABAGO, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
SERENO, J.:
Before this Court is a Petition for Certiorari pursuant to Rule 37,
Section 1 of the Commission of Elections (COMELEC) Rules of
Procedure,1 in relation to Rules 64 and 65 of the Rules of Court,
assailing the Resolutions dated 26 October 2009 and 4 January
2010 issued by the COMELEC in SPP Case No. 09-073 (PP).2
On 2 July 2009, Petitioner Magdalo sa Pagbabago (MAGDALO)
filed its Petition for Registration with the COMELEC, seeking its
registration and/or accreditation as a regional political party based in
the National Capital Region (NCR) for participation in the 10 May
2010 National and Local Elections.3 In the Petition, MAGDALO was
represented by its Chairperson, Senator Antonio F. Trillanes IV, and
its Secretary General, Francisco Ashley L. Acedillo (Acedillo).4 The
Petition was docketed as SPP No. 09-073 (PP) and raffled to the
Second Division of the COMELEC (COMELECSecond Division).5
In its Order dated 24 August 2009, the COMELECSecond Division
directed MAGDALO to cause the publication of the Petition for
Registration and the said Order in three daily newspapers of general
circulation, and set the hearing thereof on 3 September 2009. 6 In
compliance therewith, MAGDALO caused the publication of both
documents in HATAW! No. 1 sa Balita, Saksi sa Balita and BOMBA
BALITA (Saksi sa Katotohanan).7
On 3 September 2009, a hearing was conducted in which
MAGDALO (a) established its compliance with the jurisdictional
requirements; (b) presented Acedillo as its witness; and (c) marked

12

its documentary evidence in support of its Petition for Registration.

The following day, MAGDALO filed its Formal Offer of Evidence.8
On 26 October 2009, the COMELECSecond Division issued its
Resolution denying the Petition for Registration filed by
MAGDALO.9 The relevant portions of the assailed Resolution read:
Magdalo Para sa Pagbabago should be refused registration in
accordance with Art. IX-C, Section 2(5) of the Constitution. It is
common knowledge that the partys organizer and Chairman,
Senator Antonio F. Trillanes IV, and some members participated in
the take-over of the Oakwood Premier Apartments in Ayala Center,
Makati City on July 27, 2003, wherein several innocent civilian
personnel were held hostage. This and the fact that they were in full
battle gear at the time of the mutiny clearly show their purpose in
employing violence and using unlawful means to achieve their goals
in the process defying the laws of organized societies. x x x
xxx

xxx

xxx

WHEREFORE, premises considered, this Petition is hereby

DENIED.
SO ORDERED.10 (Emphasis supplied.)
On 3 November 2009, MAGDALO filed a Motion for
Reconsideration, which was elevated to the COMELEC En Banc for
resolution.11
Meanwhile, on 27 November 2009, MAGDALO filed a Manifestation
of Intent to Participate in the Party-List System of Representation in
the 10 May 2010 Elections (Manifestation of Intent), in which it
stated that its membership includes "[f]ormer members of the Armed
Forces of the Philippines (AFP), Anti-Corruption Advocates, Reformminded citizens."12 Thereafter, on 30 November 2009, it filed its
Amended Manifestation, which bore the following footnote: 13
With all due respect to the Honorable Commission, the MAGDALO
PARA SA PAGBABAGO ("MAGDALO") manifests that the instant
MANIFESTATION is being filed ex abutanti (sic) cautelam (out of the
abundance of caution) only and subject to the outcome of the
resolution of the Motion for Reconsideration filed by Magdalo in SPP
No. 09-073 (PP) from the Resolution dated 26 October 2009 of the
Second Division of the Honorable Commission denying its Petition
for Registration/Accreditation as a Political Party based in the
National Capital Region [NCR], which motion is still pending the (sic)
Honorable Commission En Banc. It is not in any way intended to
preempt the ruling of the Honorable Commission but merely to
preserve the possibility of pursuing the Partys participation in the
Party-List System of Representation in the eventuality that their
Petition is approved.
Thereafter, MAGDALO filed a Manifestation and Motion for Early
Resolution dated 23 December 2009, in which it clarified its intention
to participate in the 10 May 2010 National and Local Elections as a
party-list group.14
In its assailed Resolution dated 4 January 2010, the COMELEC En
Banc denied the Motion for Reconsideration filed by MAGDALO.15
In the instant Petition, MAGDALO argues that (a) the COMELEC
Resolutions were not based on the record or evidence presented;
(b) the Resolutions preempted the decision of the trial court in
Criminal Case No. 03-2784, in which several members of the
military are being tried for their involvement in the siege of the
Oakwood Premier Apartments (Oakwood); and (c) it has expressly
renounced the use of force, violence and other forms of unlawful

means to achieve its goals. Thus, MAGDALO prays for this Court to:
(a) reverse and set aside the 26 October 2009 and 4 January 2010
COMELEC Resolutions; (b) grant its Petition for Registration; and
(c) direct the COMELEC to issue a Certificate of Registration. 16 The
Petition likewise includes a prayer for the issuance of a Temporary
Restraining Order (TRO), Writ of Preliminary Mandatory Injunction
and/or Injunctive Relief to direct the COMELEC to allow MAGDALO
to participate in the 10 May 2010 National and Local
Elections.17 However, this Court denied the issuance of a TRO in its
Resolution dated 2 February 2010.18
To support the grant of reliefs prayed for, MAGDALO puts forward
the following arguments:
The findings of the assailed resolutions on the basis of which the
Petition was denied are based on pure speculation. The Resolutions
speculated as to the alleged motives and/or intentions of the
founders of petitioner Magdalo, which claims are not based on
evidence but on mere conjecture and pure baseless
presuppositions;
The assailed Resolutions effectively preempted the court trying the
case. The subject Resolutions unfairly jumped to the conclusion that
the founders of the Magdalo "committed mutiny", "held innocent
civilian personnel as hostage", "employed violence" and "use[d]
unlawful means" and "in the process defied the laws of organized
society" purportedly during the Oakwood incident when even the
court trying their case, [Regional Trial Court, National Capital
Judicial Region, Makati City], Branch 148, has not yet decided the
case against them;
and
The Resolution violates the constitutional presumption of innocence
in favor of founders of the Magdalo and their basic right of to [sic]
due process of law.19
On the other hand, the COMELEC asserts that it had the power to
ascertain the eligibility of MAGDALO for registration and
accreditation as a political party.20 It contends that this determination,
as well as that of assessing whether MAGDALO advocates the use
of force, would entail the evaluation of evidence, which cannot be
reviewed by this Court in a petition for certiorari.21
However, MAGDALO maintains that although it concedes that the
COMELEC has the authority to assess whether parties applying for
registration possess all the qualifications and none of the
disqualifications under the applicable law, the latter nevertheless
committed grave abuse of discretion in basing its determination on
pure conjectures instead of on the evidence on record.22
Preliminary to the examination of the substantive issues, it must be
discussed whether this case has been rendered moot and academic
by the conduct of the 10 May 2010 National and Local Elections.
Although the subject Petition for Registration filed by MAGDALO
was intended for the elections on even date, it specifically asked for
accreditation as a regional political party for purposes of subsequent
elections.23
Moreover, even assuming that the registration was only for the 10
May 2010 National and Local Elections, this case nevertheless
comes under the exceptions to the rules on mootness, as explained
in David v. Macapagal-Arroyo:24
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value. Generally,

13

courts decline jurisdiction over such case or dismiss it on ground of

mootness.
xxx

xxx

xxx

The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will
decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the
situation and the paramount public interest is involved; third, when
[the] constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and fourth, the
case is capable of repetition yet evading review.25 (Emphasis
supplied.)
The second and fourth exceptions are clearly present in the case at
bar. The instant action brings to the fore matters of public concern,
as it challenges the very notion of the use of violence or unlawful
means as a ground for disqualification from party registration.
Moreover, considering the expressed intention of MAGDALO to join
subsequent elections, as well as the occurrence of supervening
events pertinent to the case at bar, it remains prudent to examine
the issues raised and resolve the arising legal questions once and
for all.
Having established that this Court can exercise its power of judicial
review, the issue for resolution is whether the COMELEC gravely
abused its discretion when it denied the Petition for Registration filed
by MAGDALO on the ground that the latter seeks to achieve its
goals through violent or unlawful means. This Court rules in the
negative, but without prejudice to MAGDALOs filing anew of a
Petition for Registration.
The COMELEC has a constitutional and statutory mandate to
ascertain the eligibility of parties and organizations to participate in
electoral contests. The relevant portions of the 1987 Constitution
read:
ARTICLE VI LEGISLATIVE DEPARTMENT
xxx

xxx

xxx

Section 5. (1) The House of Representatives shall be composed of

not more than two hundred and fifty members, unless otherwise
fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio, and
those who, as provided by law, shall be elected through a party-list
system of registered national, regional, and sectoral parties or
organizations.
xxx

xxx

xxx

ARTICLE IX CONSTITUTIONAL COMMISSIONS

C. The Commission on Elections
xxx

xxx

xxx

Section 2. The Commission on Elections shall exercise the following

powers and functions:
xxx

xxx

xxx

(5) Register, after sufficient publication, political parties,

organizations, or coalitions which, in addition to other requirements,
must present their platform or program of government; and accredit
citizens arms of the Commission on Elections. Religious
denominations and sects shall not be registered. Those which seek
to achieve their goals through violence or unlawful means, or refuse
to uphold and adhere to this Constitution, or which are supported by
any foreign government shall likewise be refused registration. x x x.
(Emphasis supplied.)
Echoing these constitutional provisions, Batas Pambansa Bilang
881 (BP 881), otherwise known as the Omnibus Election Code,
states:
Sec. 60. Political party. "Political party" or "party," when used in
this Act, means an organized group of persons pursuing the same
ideology, political ideals or platforms of government and includes its
branches and divisions. To acquire juridical personality, qualify it
for subsequent accreditation, and to entitle it to the rights and
privileges herein granted to political parties, a political party
shall first be duly registered with the Commission. Any
registered political party that, singly or in coalition with others, fails to
obtain at least ten percent of the votes cast in the constituency in
which it nominated and supported a candidate or candidates in the
election next following its registration shall, after notice and hearing,
be deemed to have forfeited such status as a registered political
party in such constituency.
Sec. 61. Registration. Any organized group of persons seeking
registration as a national or regional political party may file with the
Commission a verified petition attaching thereto its constitution and
by-laws, platforms or program of government and such other
relevant information as may be required by the Commission. The
Commission shall after due notice and hearing, resolve the petition
within ten days from the date it is submitted for decision. No
religious sect shall be registered as a political party and no political
party which seeks to achieve its goal through violence shall be
entitled to accreditation. (Emphasis supplied.)
On the other hand, Republic Act No. 7941, otherwise known as the
Party-List System Act, reads in part:
Section 2. Declaration of policy. The State shall promote
proportional representation in the election of representatives to the
House of Representatives through a party-list system of registered
national, regional and sectoral parties or organizations or coalitions
thereof, which will enable Filipino citizens belonging to marginalized
and under-represented sectors, organizations and parties, and who
lack well-defined political constituencies but who could contribute to
the formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and
guarantee a full, free and open party system in order to attain the
broadcast possible representation of party, sectoral or group
interests in the House of Representatives by enhancing their
chances to compete for and win seats in the legislature, and shall
provide the simplest scheme possible.
Section 3. Definition of Terms. (a) The party-list system is a
mechanism of proportional representation in the election of
representatives to the House of Representatives from national,
regional and sectoral parties or organizations or coalitions thereof
registered with the Commission on Elections (COMELEC).
Component parties or organizations of a coalition may participate
independently provided the coalition of which they form part does
not participate in the party-list system. (Emphasis supplied.)

14

Thus, to join electoral contests, a party or organization must

undergo the two-step process of registration and accreditation, as
this Court explained in Liberal Party v. COMELEC:26

it treated these facts as public knowledge,35 and took cognizance

thereof without requiring the introduction and reception of evidence
thereon.

x x x Registration is the act that bestows juridical personality for

purposes of our election laws; accreditation, on the other hand,
relates to the privileged participation that our election laws grant to
qualified registered parties.

B. The COMELEC did not commit grave abuse of discretion in

finding that MAGDALO uses violence or unlawful means to achieve
its goals.

xxx

xxx

xxx

x x x Accreditation can only be granted to a registered political party,

organization or coalition; stated otherwise, a registration must first
take place before a request for accreditation can be made. Once
registration has been carried out, accreditation is the next natural
step to follow.27 (Emphasis supplied.)
Considering the constitutional and statutory authority of the
COMELEC to ascertain the eligibility of parties or organizations
seeking registration and accreditation, the pertinent question now is
whether its exercise of this discretion was so capricious or whimsical
as to amount to lack of jurisdiction. In view of the facts available to
the COMELEC at the time it issued its assailed Resolutions, this
Court rules that respondent did not commit grave abuse of
discretion.
A. The COMELEC did not commit grave abuse of discretion in
taking judicial notice of the Oakwood incident.
MAGDALO contends that it was grave abuse of discretion for the
COMELEC to have denied the Petition for Registration not on the
basis of facts or evidence on record, but on mere speculation and
conjectures.28 This argument cannot be given any merit.
Under the Rules of Court, judicial notice may be taken of matters
that are of "public knowledge, or are capable of unquestionable
demonstration."29 Further, Executive Order No. 292, otherwise
known as the Revised Administrative Code, specifically empowers
administrative agencies to admit and give probative value to
evidence commonly acceptable by reasonably prudent men, and to
take notice of judicially cognizable facts.30 Thus, in Saludo v.
American Express,31 this Court explained as follows:
The concept of "facts of common knowledge" in the context of
judicial notice has been explained as those facts that are "so
commonly known in the community as to make it unprofitable to
require proof, and so certainly known x x x as to make it indisputable
among reasonable men."32
This Court has, in a string of cases, already taken judicial notice of
the factual circumstances surrounding the Oakwood standoff. 33 The
incident involved over 300 heavily armed military officers and
enlisted men led by the founding members of MAGDALO who
surreptitiously took over Oakwood in the wee hours of 27 July 2003.
They disarmed the security guards and planted explosive devices
around the building and within its vicinity. They aired their
grievances against the administration of former President Gloria
Macapagal-Arroyo (former President Arroyo), withdrew their support
from the government, and called for her resignation, as well as that
of her cabinet members and of the top officials of the Philippine
National Police (PNP) and the Armed Forces of the Philippines
(AFP). After the ensuing negotiations for these military agents to lay
down their weapons, defuse the explosives and return to the
barracks, the debacle came to a close at 11:00 p.m. on the same
day.34 That the Oakwood incident was widely known and extensively
covered by the media made it a proper subject of judicial notice.
Thus, the COMELEC did not commit grave abuse of discretion when

In the instant Petition, MAGDALO claims that it did not resort to

violence when it took over Oakwood because (a) no one, either
civilian or military, was held hostage; (b) its members immediately
evacuated the guests and staff of the hotel; and (c) not a single shot
was fired during the incident.36 These arguments present a very
narrow interpretation of the concepts of violence and unlawful
means, and downplays the threat of violence displayed by the
soldiers during the takeover.
Under Article IX-C, Section 2(5) of the 1987 Constitution, parties,
organizations and coalitions that "seek to achieve their goals
through violence or unlawful means" shall be denied registration.
This disqualification is reiterated in Section 61 of B.P. 881, which
provides that "no political party which seeks to achieve its goal
through violence shall be entitled to accreditation."
Violence is the unjust or unwarranted exercise of force, usually with
the accompaniment of vehemence, outrage or fury.37 It also denotes
physical force unlawfully exercised; abuse of force; that force which
is employed against common right, against the laws, and against
public liberty.38 On the other hand, an unlawful act is one that is
contrary to law and need not be a crime, considering that the latter
must still unite with evil intent for it to exist. 39
In the present case, the Oakwood incident was one that was
attended with violence. As publicly announced by the leaders of
MAGDALO during the siege, their objectives were to express their
dissatisfaction with the administration of former President Arroyo,
and to divulge the alleged corruption in the military and the
supposed sale of arms to enemies of the state.40 Ultimately, they
wanted the President, her cabinet members, and the top officials of
the AFP and the PNP to resign.41 To achieve these goals,
MAGDALO opted to seize a hotel occupied by civilians, march in the
premises in full battle gear with ammunitions, and plant explosives in
the building. These brash methods by which MAGDALO opted to
ventilate the grievances of its members and withdraw its support
from the government constituted clear acts of violence.
The assertions of MAGDALO that no one was held hostage or that
no shot was fired42 do not mask its use of impelling force to take
over and sustain the occupation of Oakwood. Neither does its
express renunciation of the use of force, violence and other unlawful
means in its Petition for Registration and Program of
Government43obscure the actual circumstances surrounding the
encounter. The deliberate brandishing of military power, which
included the show of force, use of full battle gear, display of
ammunitions, and use of explosive devices, engendered an
alarming security risk to the public. At the very least, the totality of
these brazen acts fomented a threat of violence that preyed on the
vulnerability of civilians. The COMELEC did not, therefore, commit
grave abuse of discretion when it treated the Oakwood standoff as a
manifestation of the predilection of MAGDALO for resorting to
violence or threats thereof in order to achieve its objectives.
C. The finding that MAGDALO seeks to achieve its goals through
violence or unlawful means did not operate as a prejudgment of
Criminal Case No. 03-2784.

15

MAGDALO contends that the finding of the COMELEC that the

former pursues its goals through violence or unlawful means was
tantamount to an unwarranted verdict of guilt for several crimes,
which in effect, preempted the proceedings in Criminal Case No. 032784 and violated the right to presumption of innocence.44 This
argument cannot be sustained.
The power vested by Article IX-C, Section 2(5) of the Constitution
and Section 61 of BP 881 in the COMELEC to register political
parties and ascertain the eligibility of groups to participate in the
elections is purely administrative in character.45 In exercising this
authority, the COMELEC only has to assess whether the party or
organization seeking registration or accreditation pursues its goals
by employing acts considered as violent or unlawful, and not
necessarily criminal in nature. Although this process does not entail
any determination of administrative liability, as it is only limited to the
evaluation of qualifications for registration, the ruling of this Court in
Quarto v. Marcelo46 is nonetheless analogously applicable:
An administrative case is altogether different from a criminal case,
such that the disposition in the former does not necessarily result in
the same disposition for the latter, although both may arise from the
same set of facts. The most that we can read from the finding of
liability is that the respondents have been found to be
administratively guilty by substantial evidence the quantum of
proof required in an administrative proceeding. The requirement of
the Revised Rules of Criminal Procedurethat the proposed
witness should not appear to be the "most guilty" is obviously in line
with the character and purpose of a criminal proceeding, and the
much stricter standards observed in these cases. They are
standards entirely different from those applicable in administrative
proceedings.47 (Emphasis supplied.)
Further, there is a well-established distinction between the quantum
of proof required for administrative proceedings and that for criminal
actions, to wit:
As an administrative proceeding, the evidentiary bar against which
the evidence at hand is measured is not the highest quantum of
proof beyond reasonable doubt, requiring moral certainty to support
affirmative findings. Instead, the lowest standard of substantial
evidence, that is, such relevant evidence as a reasonable mind will
accept as adequate to support a conclusion, applies.48 (Emphasis
omitted.)
In the case at bar, the challenged COMELEC Resolutions were
issued pursuant to its administrative power to evaluate the eligibility
of groups to join the elections as political parties, for which the
evidentiary threshold of substantial evidence is applicable. In finding
that MAGDALO resorts to violence or unlawful acts to fulfil its
organizational objectives, the COMELEC did not render an
assessment as to whether the members of petitioner committed
crimes, as respondent was not required to make that determination
in the first place. Its evaluation was limited only to examining
whether MAGDALO possessed all the necessary qualifications and
none of disqualifications for registration as a political party. In
arriving at its assailed ruling, the COMELEC only had to assess
whether there was substantial evidence adequate to support this
conclusion.
On the other hand, Criminal Case No. 03-2784 is a criminal action
charging members of MAGDALO with coup dtat following the
events that took place during the Oakwood siege. As it is a criminal
case, proof beyond reasonable doubt is necessary. Therefore,
although the registration case before the COMELEC and the
criminal case before the trial court may find bases in the same
factual circumstances, they nevertheless involve entirely separate

and distinct issues requiring different evidentiary thresholds. The

COMELEC correctly ruled thus:
It is at once apparent that that [sic] the proceedings in and the
consequent findings of the Commission (Second Division) in the
subject resolution did not pre-empt the trial and decision of the court
hearing the cases of the Magdalo members. These are two different
processes. The proceedings in the Commission is [sic] a petition for
registration of Magdalo as a political party and the Commission is
empowered to ascertain facts and circumstances relative to this
case. It is not criminal in nature unlike the court case of the Magdalo
founders. Thus, the Second Division did not violate the right of the
Magdalo founders to be presumed innocent until proven guilty when
it promulgated the questioned resolution. There is likewise no
violation of due process. Accreditation as a political party is not a
right but only a privilege given to groups who have qualified and met
the requirements provided by law.49
It is unmistakable from the above reasons that the ruling of the
COMELEC denying the Petition for Registration filed by MAGDALO
has not, as respondent could not have, preempted Criminal Case
No. 03-2784 or violated the right of petitioners members to a
presumption of innocence.
Subsequent Grant of Amnesty to the Military Personnel involved in
the Oakwood standoff
It must be clarified that the foregoing discussion finding the absence
of grave abuse of discretion on the part of the COMELEC is based
on the facts available to it at the time it issued the assailed 26
October 2009 and 4 January 2010 Resolutions. It is crucial to make
this qualification, as this Court recognizes the occurrence of
supervening events that could have altered the COMELECs
evaluation of the Petition for Registration filed by MAGDALO. The
assessment of the COMELEC could have changed, had these
incidents taken place before the opportunity to deny the Petition
arose. In the same manner that this Court takes cognizance of the
facts surrounding the Oakwood incident, it also takes judicial notice
of the grant of amnesty in favor of the soldiers who figured in this
standoff.
This Court, in People v. Patriarca,50 explained the concept of
amnesty, to wit:
Amnesty commonly denotes a general pardon to rebels for their
treason or other high political offenses, or the forgiveness which one
sovereign grants to the subjects of another, who have offended, by
some breach, the law of nations. Amnesty looks backward, and
abolishes and puts into oblivion, the offense itself; it so overlooks
and obliterates the offense with which he is charged, that the person
released by amnesty stands before the law precisely as though he
had committed no offense.
xxx

xxx

xxx

In the case of People vs. Casido, the difference between pardon and
amnesty is given:
"Pardon is granted by the Chief Executive and as such it is a private
act which must be pleaded and proved by the person pardoned,
because the courts take no notice thereof; while amnesty by
Proclamation of the Chief Executive with the concurrence of
Congress, is a public act of which the courts should take judicial
notice. x x x"51(Emphasis supplied.)

16

Pursuant to Article VII, Section 19 of the Constitution, 52 President

Benigno S. Aquino III issued on 24 November 2010 Proclamation
No. 75,53 which reads in part:
GRANTING AMNESTY TO ACTIVE AND FORMER PERSONNEL
OF THE ARMED FORCES OF THE PHILIPPINES, PHILIPPINE
NATIONAL POLICE AND THEIR SUPPORTERS WHO MAY HAVE
COMMITTED CRIMES PUNISHABLE UNDER THE REVISED
PENAL CODE, THE ARTICLES OF WAR AND OTHER LAWS IN
CONNECTION WITH THE OAKWOOD MUTINY, THE MARINES
STAND-OFF AND THE PENINSULA MANILA HOTEL INCIDENT
WHEREAS, it is recognized that certain active and former personnel
of the Armed Forces of the Philippines (AFP), the Philippine National
Police (PNP) and their supporters have or may have committed
crimes punishable under the Revised Penal Code, the Articles of
War and other laws in connection with, in relation or incident to the
July 27, 2003 Oakwood Mutiny, the February 2006 Marines StandOff and the November 29, 2007 Manila Pen Incident;
WHEREAS, there is a clamor from certain sectors of society urging
the President to extend amnesty to said AFP personnel and their
supporters;
WHEREAS, Section 19, Article VII of the Constitution expressly
vests the President the power to grant amnesty;
WHEREAS, the grant of amnesty in favor of the said active and
former personnel of the AFP and PNP and their supporters will
promote an atmosphere conducive to the attainment of a just,
comprehensive and enduring peace and is in line with the
Governments peace and reconciliation initiatives;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, President of the
Philippines, by virtue of the powers vested in me by Section 19,
Article VII of the Philippine Constitution, do
hereby DECLARE and PROCLAIM:
SECTION 1. Grant of Amnesty. Amnesty is hereby granted to all
active and former personnel of the AFP and PNP as well as their
supporters who have or may have committed crimes punishable
under the Revised Penal Code, the Articles of War or other laws in
connection with, in relation or incident to the July 27, 2003 Oakwood
Mutiny, the February 2006 Marines Stand-Off and the November 29,
2007 Manila Peninsula Incident who shall apply therefor; Provided
that amnesty shall not cover rape, acts of torture, crimes against
chastity and other crimes committed for personal ends.
xxx

xxx

xxx

SECTION 4. Effects. (a) Amnesty pursuant to this proclamation

shall extinguish any criminal liability for acts committed in
connection, incident or related to the July 27, 2003 Oakwood Mutiny,
the February 2006 Marines Stand-Off and the November 29, 2007
Peninsula Manila Hotel Incident without prejudice to the grantees
civil liability for injuries or damages caused to private persons.
(b) Except as provided below, the grant of amnesty shall
effect the restoration of civil and political rights or
entitlement of grantees that may have been suspended,
lost or adversely affected by virtue of any executive,
administrative or criminal action or proceedings against the
grantee in connection with the subject incidents, including
criminal conviction or (sic) any form, if any.
(c) All enlisted personnel of the Armed Forces of the
Philippines with the rank of up to Technical Sergeant and

personnel of the PNP with the rank of up to Senior Police

Officer 3, whose applications for amnesty would be
approved shall be entitled to reintegration or reinstatement,
subject to existing laws and regulations. However, they
shall not be entitled to back pay during the time they have
been discharged or suspended from service or unable to
perform their military or police duties.
(d) Commissioned and Non-commissioned officers of the
AFP with the rank of Master Sergeant and personnel of the
PNP with the rank of at least Senior Police Officer 4 whose
application for amnesty will be approved shall not be
entitled to remain in the service, reintegration or
reinstatement into the service nor back pay.
(e) All AFP and PNP personnel granted amnesty who are
not reintegrated or reinstated shall be entitled to retirement
and separation benefits, if qualified under existing laws
and regulation, as of the time [of] separation, unless they
have forfeited such retirement benefits for reasons other
than the acts covered by this Proclamation. Those
reintegrated or reinstated shall be entitled to their
retirement and separation benefit[s] upon their actual
retirement. (Emphasis supplied.)
Thereafter, the House of Representatives and the Senate adopted
Concurrent Resolution No. 4 on 13 and 14 December 2010,
respectively.54 Relevant portions of the Resolution partly read:
CONCURRENT RESOLUTION CONCURRING WITH
PROCLAMATION NO. 75 OF THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES DATED 24 NOVEMBER 2010
ENTITLED "GRANTING AMNESTY TO ACTIVE AND FORMER
PERSONNEL OF THE ARMED FORCES OF THE PHILIPPINES,
PHILIPPINE NATIONAL POLICE AND THEIR SUPPORTERS WHO
MAY HAVE COMMITTED CRIMES PUNISHABLE UNDER THE
REVISED PENAL CODE, THE ARTICLES OF WAR AND OTHER
LAWS IN CONNECTION WITH THE OAKWOOD MUTINY, THE
MARINES STAND-OFF AND THE PENINSULA MANILA HOTEL
INCIDENT
WHEREAS, Section 19, Article VII of the Constitution provides that
the President shall have the power to grant amnesty with the
concurrence of a majority of all the Members of Congress;
xxx

xxx

xxx

WHEREAS, both Houses of Congress share the view of the

President that in order to promote an atmosphere conducive to the
attainment of a just, comprehensive and enduing peace and in line
with the Governments peace and reconciliation initiatives, there is a
need to declare amnesty in favor of the said active and former
personnel of the AFP and PNP and their supporters;
WHEREAS, it is the sense of both House of Congress that it is
imperative that an amnesty partaking the nature proclaimed by His
Excellency, the President of the Philippines, is necessary for the
general interest of the Philippines; xxx (Emphasis supplied.)
In light of the foregoing, to still sustain the finding, based on the
participation of its members in the Oakwood incident, that
MAGDALO employs violence or other harmful means would be
inconsistent with the legal effects of amnesty. Likewise, it would not
be in accord with the express intention of both the Executive and the
Legislative branches, in granting the said amnesty, to promote an
atmosphere conducive to attaining peace in line with the
governments peace and reconciliation initiatives.

17

Nevertheless, this Court is not unmindful of the apprehensions of the

COMELEC as regards the use of violence.1awp++i1Thus, should
MAGDALO decide to file another Petition for Registration, its officers
must individually execute affidavits renouncing the use of violence or
other harmful means to achieve the objectives of their organization.
Further, it must also be underscored that the membership of
MAGDALO cannot include military officers and/or enlisted personnel
in active service, as this act would run counter to the express
provisions of the Constitution:
ARTICLE XVI GENERAL PROVISIONS
Section 5. (1) All members of the armed forces shall take an oath or
affirmation to uphold and defend this Constitution.
xxx

xxx

xxx

(3) Professionalism in the armed forces and adequate remuneration

and benefits of its members shall be a prime concern of the State.
The armed forces shall be insulated from partisan politics.
No member of the military shall engage directly or indirectly in any
partisan political activity, except to vote.1wphi1
(4) No member of the armed forces in the active service shall, at any
time, be appointed or designated in any capacity to a civilian
position in the Government including government-owned or
controlled corporations or any of their subsidiaries. (Emphasis
supplied.)
This Court finds that the COMELEC did not commit grave abuse of
discretion in denying the Petition for Registration filed by
MAGDALO. However, in view of the subsequent amnesty granted in
favor of the members of MAGDALO, the events that transpired
during the Oakwood incident can no longer be interpreted as acts of
violence in the context of the disqualifications from party registration.
WHEREFORE, the instant Petition is DISMISSED. The 26 October
2009 and 4 January 2010 Resolutions of the Commission on
Elections are hereby AFFIRMED, without prejudice to the filing anew
of a Petition for Registration by MAGDALO.
SO ORDERED.
G.R. No. 199082

September 18, 2012

JOSE MIGUEL T. ARROYO, Petitioner,

vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS;
HON. LEILA DE LIMA, in her capacity as Secretary of the
Department of Justice; HON. SIXTO BRILLANTES, .JR., in his
capacity as Chairperson of the Commission on Elections; and
the JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITTEE and FACT-FINDING TEAM,Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in her capacity as Secretary of Justice;
HON. SIXTO S. BRILLANTES, JR., in his capacity as COMELEC
Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE,
ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN
ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their capacity
as COMELEC COMMISSIONERS; CLARO A. ARELLANO,
GEOUGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND

MICHAEL D. VILLARET, in their capacity as CHAIRPERSON

AND MEMBERS, RESPECTIVELY, OF THE JOINT DOJCOMELEC PRELIMINARY INVESTIGATION COMMITEE ON THE
2004 AND 2007 ELECTION FRAUD, Respondents.
x-----------------------x
G.R. No.199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by Chairperson
Sixto S. Brillantes, Jr., DEPARTMENT OF JUSTICE, represented
by Secretary Leila M. De Lima, JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITTEE, SENATOR
AQUILINO M. PIMENTEL III, and DOJ-COMELEC FACT FINDING
TEAM, Respondents.
DECISION
PERALTA, J.:
The Court is vested with the constitutional mandate to resolve
justiciable controversies by applying the rule of law with due
deference to the right to due process, irrespective of the standing in
society of the parties involved. It is an assurance that in this
jurisdiction, the wheels of justice turn unimpeded by public opinion
or clamor, but only for the ultimate end of giving each and every
member of society his just due without distinction.
Before the Court are three (3) consolidated petitions and
supplemental petitions for Certiorari and Prohibition under Rule 65
of the Rules of Court filed by Jose Miguel T. Arroyo (Mike Arroyo) in
G.R. No. 199082, Benjamin S. Abalos, Sr. (Abalos) in G.R. No.
199085 and Gloria Macapagal
Arroyo (GMA) in G.R. No. 199118 assailing the following: (1)
Commission on Elections (Comelec) Resolution No. 9266 "In the
Matter of the Commission on Elections and Department of Justice
Joint Investigation on the Alleged Election Offenses Committed
during the 2004 and 2007 Elections Pursuant to Law"1 dated August
2, 2011; (2) Joint Order No. 001-2011 (Joint Order) "Creating and
Constituting a Joint DOJ-Comelec Preliminary Investigation
Committee [Joint Committee] and Fact-Finding Team on the 2004
and 2007 National Elections Electoral Fraud and
Manipulation Cases"2 dated August 15, 2011; (3) Rules of Procedure
on the Conduct of Preliminary Investigation on the Alleged Election
Fraud in the 2004 and 2007 National Elections (Joint Committee
Rules of Procedure)3 dated August 23, 2011; and (4) Initial Report of
the Fact-Finding Team dated October 20, 2011.4 The consolidated
petitions and supplemental petitions likewise assail the validity of the
proceedings undertaken pursuant to the aforesaid issuances.
The Antecedents
Acting on the discovery of alleged new evidence and the surfacing
of new witnesses indicating the occurrence of massive electoral
fraud and manipulation of election results in the 2004 and 2007
National Elections, on August 2, 2011, the Comelec issued
Resolution No. 9266 approving the creation of a committee jointly
with the Department of Justice (DOJ), which shall conduct
preliminary investigation on the alleged election offenses and
anomalies committed during the 2004 and 2007 elections.5
On August 4, 2011, the Secretary of Justice issued Department
Order No. 6406 naming three (3) of its prosecutors to the Joint
Committee.
On August 15, 2011, the Comelec and the DOJ issued Joint Order
No. 001-2011 creating and constituting a Joint Committee and FactFinding Team on the 2004 and 2007 National Elections electoral
fraud and manipulation cases. The Joint Committee and the FactFinding Team are composed of officials from the DOJ and the

18

Comelec. Section 2 of the Joint Order lays down the mandate of the
Joint Committee, to wit:
Section 2. Mandate. The Committee shall conduct the necessary
preliminary investigation on the basis of the evidence gathered and
the charges recommended by the Fact-Finding Team created and
referred to in Section 4 hereof. Resolutions finding probable cause
for election offenses, defined and penalized under the Omnibus
Election Code and other election laws shall be approved by the
Comelec in accordance with the Comelec Rules of Procedure. For
other offenses, or those not covered by the Omnibus Election Code
and other election laws, the corresponding criminal information may
be filed directly with the appropriate courts.7
The Fact-Finding Team,8 on the other hand, was created for the
purpose of gathering real, documentary, and testimonial evidence
which can be utilized in the preliminary investigation to be conducted
by the Joint Committee. Its specific duties and functions as
enumerated in Section 4 of the Joint Order are as follows:
a) Gather and document reports, intelligence information,
and investigative leads from official as well as unofficial
sources and informants;
b) Conduct interviews, record testimonies, take affidavits of
witnesses, and collate material and relevant documentary
evidence, such as, but not limited to, election documents
used in the 2004 and 2007 national elections. For security
reasons, or to protect the identities of informants, the FactFinding Team may conduct interviews or document
testimonies discreetly;
c) Assess and evaluate affidavits already executed and
other documentary evidence submitted or may be
submitted to the Fact-Finding Team and/or Committee;
d) Identify the offenders, their offenses and the manner of
their commission, individually or in conspiracy, and the
provisions of election and general criminal laws violated,
establish evidence for individual criminal and
administrative liability and prosecution, and prepare the
necessary documentation, such as complaints and charge
sheets for the initiation of preliminary investigation
proceedings against said individuals to be conducted by
the Committee;
e) Regularly submit to the Committee, the Secretary of
Justice and the Chairman of the Comelec periodic reports
and recommendations, supported by real, testimonial and
documentary evidence, which may then serve as the
Committees basis for immediately commencing
appropriate preliminary investigation proceedings, as
provided under Section 6 of this Joint Order; and
f) Upon the termination of its investigation, make a full and
final report to the Committee, the Secretary of Justice, and
the Chairman of the Comelec.9
Pursuant to Section 710 of the Joint Order, on August 23, 2011, the
Joint Committee promulgated its Rules of Procedure.
The members of the Fact-Finding Team unanimously agreed that
the subject of the Initial Report would be the electoral fraud and
manipulation of election results allegedly committed during the May
14, 2007 elections. Thus, in its Initial Report11 dated October 20,
2011, the Fact-Finding Team concluded that manipulation of the
results in the May 14, 2007 senatorial elections in the provinces of
North and South Cotabato and Maguindanao were indeed
perpetrated.12 The Fact-Finding Team recommended that petitioner
Abalos and ten (10) others13 be subjected to preliminary
investigation for electoral sabotage for conspiring to manipulate the
election results in North and South Cotabato. Twenty-six
(26)14persons, including petitioners GMA and Abalos, were likewise
recommended for preliminary investigation for electoral sabotage for
manipulating the election results in Maguindanao.15 Several persons

were also recommended to be charged administratively, while

others,16 including petitioner Mike Arroyo, were recommended to be
subjected to further investigation.17 The case resulting from the
investigation of the Fact-Finding Team was docketed as DOJComelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III
(Senator Pimentel) filed a Complaint-Affidavit18 for Electoral
Sabotage against petitioners and twelve others19 and several John
Does and Jane Does. The case was docketed as DOJ-Comelec
Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas
against petitioners in DOJ-Comelec Case Nos. 001-2011 and 0022011.20 On November 3, 2011, petitioners, through counsel,
appeared before the Joint Committee.21 On that preliminary hearing,
the Joint Committee consolidated the two DOJ-Comelec cases.
Respondents therein were likewise ordered to submit their CounterAffidavits by November 14, 2011.22
Thereafter, petitioners filed before the Court separate Petitions for
Certiorari and Prohibition with Prayer for the Issuance of a
Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction assailing the creation of the Joint Panel.23 The petitions
were eventually consolidated.
On November 14, 2011, petitioner Mike Arroyo filed a Motion to
Defer Proceedings24 before the Joint Committee, in view of the
pendency of his petition before the Court. On the same day,
petitioner GMA filed before the Joint Committee an Omnibus Motion
Ad Cautelam25 to require Senator Pimentel to furnish her with
documents referred to in his complaint-affidavit and for the
production of election documents as basis for the charge of electoral
sabotage. GMA contended that for the crime of electoral sabotage to
be established, there is a need to present election documents
allegedly tampered which resulted in the increase or decrease in the
number of votes of local and national candidates.26 GMA prayed that
she be allowed to file her counter-affidavit within ten (10) days from
receipt of the requested documents.27 Petitioner Abalos, for his part,
filed a Motion to Suspend Proceedings (Ex Abundante Ad
Cautelam),28 in view of the pendency of his petition brought before
the Court.
In an Order29 dated November 15, 2011, the Joint Committee denied
the aforesaid motions of petitioners. GMA subsequently filed a
motion for reconsideration.30
On November 16, 2011, the Joint Committee promulgated a Joint
Resolution which was later indorsed to the Comelec.31On November
18, 2011, after conducting a special session, the Comelec en banc
issued a Resolution32 approving and adopting the Joint Resolution
subject to modifications. The dispositive portion of the Comelec
Resolution reads:
WHEREFORE, premises considered, the Resolution of the Joint
DOJ-COMELEC Preliminary Investigation Committee in DOJCOMELEC Case No. 001-2011 and DOJ-COMELEC Case No. 0022011, upon the recommendation of the COMELECs own
representatives in the Committee, is hereby APPROVED and
ADOPTED, subject to the following MODIFICATIONS:
1. That information/s for the crime of ELECTORAL
SABOTAGE under Section 42 (b) of R.A. 9369, amending
Section 27 (b) of R.A. 6646, be filed against GLORIA
MACAPAGAL-ARROYO, BENJAMIN ABALOS, SR.,
LINTANG H. BEDOL, DATU ANDAL AMPATUAN, SR. and
PETER REYES;
2. That the charges against MICHAEL C. ABAS,
NICODEMO FERRER, REUBEN BASIAO, JAIME PAZ
and NORIE K. UNAS be subjected to further investigation;
3. That the charges against JOSE MIGUEL T. ARROYO,
BONG SERRANO, ALBERTO AGRA, ANDREI BON
TAGUM, GABBY CLAUDIO, ROMY DAYDAY, JEREMY

19

JAVIER, JOHN DOE a.k.a BUTCH, be DISMISSED for

insufficiency of evidence to establish probable cause;
4. That the recommendation that ESTELITA B. ORBASE,
ELIZA A. GASMIN, ELSA Z. ATINEN, SALIAO S. AMBA,
MAGSAYSAY B. MOHAMAD, SALONGA K. EDZELA,
RAGAH D. AYUNAN, SUSAN U. CANANBAN, RUSSAM
H. MABANG, ASUNCION CORAZON P. RENIEDO, NENA
A. ALID, MA. SUSAN L. ALBANO, ROHAIDA T. KHALID,
ARAW M. CAO, JEEHAN S. NUR, ALICE A. LIM,
NORIJEAN P. HANGKAL, CHRISTINA ROAN M.
DALOPE, and MACEDA L. ABO be administratively
charged be subjected to further review by this Commission
to determine the appropriate charge/s that may be filed
against them;
5. That the findings of lack of probable cause against
LILIAN S. SUAN-RADAM and YOGIE G. MARTIRIZAR be
REJECTED by reason of the pendency of their respective
cases before the Regional Trial Court of Pasay (Branch
114) and this Commission for the same offense under
consideration.
In the higher interest of justice and by reason of manifest attempts to
frustrate the governments right to prosecute and to obtain speedy
disposition of the present case pending before the Commission, the
Law Department and/or any COMELEC legal officers as may be
authorized by this Commission is hereby ORDERED to
IMMEDIATELY PREPARE and FILE the necessary Information/s
before the appropriate court/s

C. THE CREATION OF THE JOINT COMMITTEE, WHICH

FUSES THE COMMISSION ON ELECTIONS - A
CONSTITUTIONALLY INDEPENDENT BODY - WITH THE
DEPARTMENT OF JUSTICE A POLITICAL AGENT OF
THE EXECUTIVE DEMOLISHES THE INDEPENDENCE
OF THE COMMISSION ON ELECTIONS AS PROVIDED
IN ARTICLE IX(A), SECTIONS 1 AND 2 AND IX(C) OF
THE CONSTITUTION.
D. IN VIEW OF THE NUMEROUS AND PERSISTENT
PUBLIC PRONOUNCEMENTS OF THE PRESIDENT, HIS
SPOKESPERSONS, THE HEADS OF THE DOJ AND THE
COMELEC, AND MEMBERS OF THE JOINT
COMMITTEE THAT CASES SHOULD BE FILED
AGAINST PETITIONER AND HIS FAMILY AND ALLEGED
ASSOCIATES BY THE END OF 2011, THE
PROCEEDINGS THEREOF SHOULD BE ENJOINED
FOR BEING PERSECUTORY, PURSUANT TO ALLADO
V. DIOKNO AND RELATED CASES.
E. THE CREATION AND CONSTITUTION OF THE JOINT
COMMITTEE TRAMPLES UPON PETITIONERS RIGHT
TO A FAIR PROCEEDING BY AN INDEPENDENT AND
IMPARTIAL TRIBUNAL.
F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF
PASAY CITY, HAVE ASSUMED JURISDICTION OVER
THE SUBJECT MATTER SOUGHT TO BE
INVESTIGATED BY THE JOINT COMMITTEE, TO THE
EXCLUSION OF ANY BODY, INCLUDING THE JOINT
COMMITTEE.38

SO ORDERED.33 (Emphasis supplied.)

In G.R. No. 199085, petitioner Abalos raises the following issues:
On even date, pursuant to the above Resolution, the Comelecs Law
Department filed with the Regional Trial Court (RTC), Pasay City, an
Information against petitioner GMA, Governor Andal Ampatuan, Sr.,
and Atty. Lintang H. Bedol, for violation of Section 42 (b)(3) of
Republic Act (R.A.) No. 9369, amending Section 27 (b) of R.A. No.
6646, docketed as Criminal Case No. RPSY-11-04432-CR.34 The
case was raffled to Branch 112 and the corresponding Warrant of
Arrest was issued which was served on GMA on the same day.35
On November 18, 2011, petitioner GMA filed with the RTC an Urgent
Omnibus Motion Ad Cautelam36 with leave to allow the Joint
Committee to resolve the motion for reconsideration filed by GMA, to
defer issuance of a warrant of arrest and a Hold Departure Order,
and to proceed to judicial determination of probable cause. She,
likewise, filed with the Comelec a Motion to Vacate Ad
Cautelam37 praying that its Resolution be vacated for being null and
void. The RTC nonetheless issued a warrant for her arrest which
was duly served. GMA thereafter filed a Motion for Bail which was
granted.
Issues
In G.R. No. 199082, petitioner Arroyo relies on the following
grounds:
A. THE CREATION OF THE JOINT COMMITTEE VIA THE
JOINT ORDER IS AT WAR WITH THE DUE PROCESS
AND EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION, HAVING BEEN CREATED WITH THE
SOLE END IN VIEW OF INVESTIGATING AND
PROSECUTING CERTAIN PERSONS AND INCIDENTS
ONLY, SPECIFICALLY THOSE INVOLVING THE 2004
AND 2007 ELECTIONS TO THE EXCLUSION OF
OTHERS, IN VIOLATION OF THE DOCTRINE IN
BIRAOGO V. TRUTH COMMISSION AND COMPANION
CASE.
B. NO LAW OR RULE AUTHORIZES THE JOINT
COMMITTEE TO CONDUCT PRELIMINARY
INVESTIGATION.

I.
DOES JOINT ORDER NO. 001-2011, CREATING THE
JOINT DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATON COMMITTEE VIOLATE
PETITIONERS CONSTITUTIONAL RIGHT TO EQUAL
PROTECTION OF THE LAW?
II.
DID THE CONDUCT AND PROCEEDINGS OF THE
JOINT DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATION COMMITTEE VIOLATE
PETITIONERS CONSTITUTIONAL RIGHT TO DUE
PROCESS OF LAW?
III.
DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE
OF SEPARATION OF POWERS BY CREATING THE
JOINT DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATION COMMITTEE WHICH
ENCROACHED UPON THE POWERS OF THE
LEGISLATURE AND THE REGIONAL TRIAL COURT?
IV.
DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM
AND PRELIMINARY INVESTIGATION COMMITTEE
HAVE THE POWER AND LEGAL AUTHORITY TO
CONDUCT A PRELIMINARY INVESTIGATION OF THE
SAME ELECTORAL SABOTAGE CASES WHICH THE
COMELEC HAD ALREADY TAKEN COGNIZANCE OF?39
In G.R. No. 199118, petitioner GMA anchors her petition on the
following grounds:
I. THE EXECUTIVE DEPARTMENT, THROUGH THE
DOJ, OSTENSIBLY ACTING "JOINTLY" WITH THE
COMELEC, HAS ACTED BEYOND THE LIMITS OF THE

20

CONSTITUTION, IN THAT IT HAS COMPROMISED THE

INDEPENDENCE OF THE COMELEC.
II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS
CONSTITUTIONAL MANDATE "TO INVESTIGATE AND,
WHERE APPROPRIATE, PROSECUTE CASES OF
VIOLATIONS OF ELECTION LAWS, INCLUDING ACTS
OR OMISSIONS CONSTITUTING ELECTION FRAUDS,
OFFENSES, AND MALPRACTICES" (ARTICLE IX-C,
SECTION 26, 1987 CONSTITUTION OF THE REPUBLIC
OF THE PHILIPPINES) IN FAVOR OF THE EXECUTIVE
DEPARTMENT, ACTING THROUGH RESPONDENT
JUSTICE SECRETARY DE LIMA.

of Pasay City.46 With the filing of the Information, the RTC has
already acquired jurisdiction over the case, including all issues
relating to the constitutionality or legality of her preliminary
investigation.47 Respondents also claim that the issues relating to
the constitutionality and validity of the conduct of the preliminary
investigation of GMA are best left to the trial court, considering that it
involves questions of fact.48Respondents add that considering that
the RTC has concurrent jurisdiction to determine a constitutional
issue, it will be practical for the Court to allow the RTC to determine
the constitutional issues in this case.49
We do not agree.
Mootness

III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND

THE JOINT COMMITTEE RULES HAVE NOT BEEN
PUBLISHED PURSUANT TO TAADA V. TUVERA, G.R.
No. L-63915 (29 DECEMBER 1986). AFTER ALL, AS THE
HONORABLE COURT LIKEWISE DECLARED IN
REPUBLIC V. PILIPINAS SHELL PETROLEUM
CORPORATION, G.R. No. 173918 (08 APRIL 2008),
(SIC)40
We deferred the resolution of petitioners Motion for the Issuance of
a TRO and, instead, required the respondents to comment on the
petitions.41
We likewise scheduled the consolidated cases for oral argument for
which the parties were directed to limit their respective discussions
to the following issues:
I. Whether or not Joint Order No. 001-2011 "Creating and
Constituting a Joint DOJ-COMELEC Preliminary Investigation
Committee and Fact-Finding Team on the 2004 and 2007 National
Elections Electoral Fraud and Manipulation Cases" is constitutional
in light of the following:
A. The due process clause of the 1987 Constitution
B. The equal protection clause of the 1987 Constitution
C. The principle of separation of powers
D. The independence of the COMELEC as a constitutional
body

It cannot be gainsaid that for a court to exercise its power of

adjudication, there must be an actual case or controversy, that is,
one which involves a conflict of legal rights, an assertion of opposite
legal claims susceptible of judicial resolution.50 The case must not
be moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice.51
A case becomes moot and academic when it ceases to present a
justiciable controversy so that a declaration on the issue would be of
no practical use or value.52 However, a case should not be
dismissed simply because one of the issues raised therein had
become moot and academic by the onset of a supervening event,
whether intended or incidental, if there are other causes which need
to be resolved after trial.53
Here, the consolidated cases are not rendered moot and academic
by the promulgation of the Joint Resolution by the Joint Committee
and the approval thereof by the Comelec. It must be recalled that
the main issues in the three petitions before us are the
constitutionality and legality of the creation of the Joint Committee
and the Fact-Finding Team as well as the proceedings undertaken
pursuant thereto. The assailed Joint Order specifically provides that
the Joint Committee was created for purposes of investigating the
alleged massive electoral fraud during the 2004 and 2007 national
elections. However, in the Fact-Finding Teams Initial Report, the
team specifically agreed that the report would focus on the
irregularities during the 2007 elections. Also, in its November 18,
2011 Resolution, the Comelec, while directing the filing of
information against petitioners Abalos and GMA, ordered that further
investigations be conducted against the other respondents therein.
Apparently, the Fact-Finding Teams and Joint

A. Whether or not due process was observed by the Joint DOJCOMELEC Fact-Finding Team and Preliminary Investigation
Committee, and the COMELEC in the conduct of the preliminary
investigation and approval of the Joint Panels Resolution. 42

Committees respective mandates have not been fulfilled and they

are, therefore, bound to continue discharging their duties set forth in
the assailed Joint Order. Moreover, petitioners question the validity
of the proceedings undertaken by the Fact-Finding Team and the
Joint Committee leading to the filing of information, on constitutional
grounds. We are not, therefore, barred from deciding on the
petitions simply by the occurrence of the supervening events of filing
an information and dismissal of the charges.

The Court, thereafter, required the parties to submit their respective

Memoranda.43

Jurisdiction over the validity of the

conduct of the preliminary investigation

The Courts Ruling

This is not the first time that the Court is confronted with the issue of
jurisdiction to conduct preliminary investigation and at the same time
with the propriety of the conduct of preliminary investigation. In
Cojuangco, Jr. v. Presidential Commission on Good Government
(PCGG),54 the Court resolved two issues, namely: (1) whether or not
the PCGG has the power to conduct a preliminary investigation of
the anti-graft and corruption cases filed by the Solicitor General
against Eduardo Conjuangco, Jr. and other respondents for the
alleged misuse of coconut levy funds; and (2) on the assumption
that it has jurisdiction to conduct such a preliminary investigation,
whether or not its conduct constitutes a violation of petitioners right
to due process and equal protection of the law.55 The Court decided
these issues notwithstanding the fact that Informations had already
been filed with the trial court.

II. Whether or not the COMELEC has jurisdiction under the law to
conduct preliminary investigation jointly with the DOJ.

Procedural Issues
Respondents claim that Mike Arroyos petition is moot and that of
GMA is moot and academic. They explain that the Mike Arroyo
petition presents no actual controversy that necessitates the
exercise by the Court of its power of judicial review, considering that
he was not among those indicted for electoral sabotage in the 2007
national elections as the Comelec dismissed the case against him
for insufficiency of evidence.44 Anent the 2004 national elections, the
Fact-Finding Team is yet to complete its investigation so Mike
Arroyos apprehensions are merely speculative and
anticipatory.45 As to the GMA petition, respondents aver that any
judgment of the Court will have no practical legal effect because an
Information has already been filed against her in Branch 112, RTC

In Allado v. Diokno,56 in a petition for certiorari assailing the propriety

of the issuance of a warrant of arrest, the Court could not ignore the

21

undue haste in the filing of the information and the inordinate

interest of the government in filing the same. Thus, this Court took
time to determine whether or not there was, indeed, probable cause
to warrant the filing of information. This, notwithstanding the fact that
information had been filed and a warrant of arrest had been issued.
Petitioners therein came directly to this Court and sought relief to
rectify the injustice that they suffered.
Hierarchy of courts
Neither can the petitions be dismissed solely because of violation of
the principle of hierarchy of courts. This principle requires that
recourse must first be made to the lower-ranked court exercising
concurrent jurisdiction with a higher court.57 The Supreme Court has
original jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus. While this jurisdiction
is shared with the Court of Appeals and the RTC, a direct invocation
of this Courts jurisdiction is allowed when there are special and
important reasons therefor, clearly and especially set out in the
petition, as in the present case.58 In the consolidated petitions,
petitioners invoke exemption from the observance of the rule on
hierarchy of courts in keeping with the Courts duty to determine
whether or not the other branches of government have kept
themselves within the limits of the Constitution and the laws, and
that they have not abused the discretion given to them.59
It is noteworthy that the consolidated petitions assail the
constitutionality of issuances and resolutions of the DOJ and the
Comelec. The general rule is that this Court shall exercise only
appellate jurisdiction over cases involving the constitutionality of a
statute, treaty or regulation.
However, such rule is subject to exception, that is, in circumstances
where the Court believes that resolving the issue of constitutionality
of a law or regulation at the first instance is of paramount importance
and immediately affects the social, economic, and moral well-being
of the people.60
This case falls within the exception. An expeditious resolution of the
issues raised in the petitions is necessary. Besides, the Court has
entertained a direct resort to the Court without the requisite motion
for reconsideration filed below or without exhaustion of
administrative remedies where there is an urgent necessity for the
resolution of the question and any further delay would prejudice the
interests of the government or of the petitioners and when there is
an alleged violation of due process, as in the present case. 61 We
apply the same relaxation of the Rules in the present case and,
thus, entertain direct resort to this Court.
Substantive Issues
Bases for the Creation of the
Fact-Finding Team and Joint Committee
Section 2, Article IX-C of the 1987 Constitution enumerates the
powers and functions of the Comelec. Paragraph (6) thereof vests in
the Comelec the power to:
(6) File, upon a verified complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses, and
malpractices.

The constitutional grant of prosecutorial power in the Comelec was

reflected in Section 265 of Batas Pambansa Blg. 881, otherwise
known as the Omnibus Election Code, to wit:
Section 265. Prosecution. The Commission shall, through its duly
authorized legal officers, have the exclusive power to conduct
preliminary investigation of all election offenses punishable under
this Code, and to prosecute the same. The Commission may avail of
the assistance of other prosecuting arms of the government:
Provided, however, That in the event that the Commission fails to
act on any complaint within four months from his filing, the
complainant may file the complaint with the office of the fiscal [public
prosecutor], or with the Ministry Department of Justice for proper
investigation and prosecution, if warranted.
Under the above provision of law, the power to conduct preliminary
investigation is vested exclusively with the Comelec. The latter,
however, was given by the same provision of law the authority to
avail itself of the assistance of other prosecuting arms of the
government.64 Thus, under Section 2,65 Rule 34 of the Comelec
Rules of Procedure, provincial and city prosecutors and their
assistants are given continuing authority as deputies to conduct
preliminary investigation of complaints involving election offenses
under election laws and to prosecute the same. The complaints may
be filed directly with them or may be indorsed to them by the
petitioner or its duly authorized representatives.66
Thus, under the Omnibus Election Code, while the exclusive
jurisdiction to conduct preliminary investigation had been lodged
with the Comelec, the prosecutors had been conducting preliminary
investigations pursuant to the continuing delegated authority given
by the Comelec. The reason for this delegation of authority has been
explained in Commission on Elections v. Espaol:67
The deputation of the Provincial and City Prosecutors is
necessitated by the need for prompt investigation and dispensation
of election cases as an indispensable part of the task of securing
fine, orderly, honest, peaceful and credible elections. Enfeebled by
lack of funds and the magnitude of its workload, the petitioner does
not have a sufficient number of legal officers to conduct such
investigation and to prosecute such cases.68
Moreover, as we acknowledged in People v. Basilla,69 the prompt
and fair investigation and prosecution of election offenses committed
before or in the course of nationwide elections would simply not be
possible without the assistance of provincial and city fiscals
prosecutors and their assistants and staff members, and of the state
prosecutors of the DOJ.70
Section 265 of the Omnibus Election Code was amended by Section
43 of R.A. No. 9369,71 which reads:
Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby
amended to read as follows:
SEC. 265. Prosecution. The Commission shall, through its duly
authorized legal officers, have the power, concurrent with the other
prosecuting arms of the government, to conduct preliminary
investigation of all election offenses punishable under this Code,
and to prosecute the same.72

This was an important innovation introduced by the 1987

Constitution, because the above-quoted provision was not in the
1935 and 1973 Constitutions.62

As clearly set forth above, instead of a mere delegated authority, the

other prosecuting arms of the government, such as the DOJ, now
exercise concurrent jurisdiction with the Comelec to conduct
preliminary investigation of all election offenses and to prosecute the
same.

The grant to the Comelec of the power to investigate and prosecute

election offenses as an adjunct to the enforcement and
administration of all election laws is intended to enable the Comelec
to effectively insure to the people the free, orderly, and honest
conduct of elections. The failure of the Comelec to exercise this
power could result in the frustration of the true will of the people and
make a mere idle ceremony of the sacred right and duty of every
qualified citizen to vote.63

It is, therefore, not only the power but the duty of both the Comelec
and the DOJ to perform any act necessary to ensure the prompt and
fair investigation and prosecution of election offenses. Pursuant to
the above constitutional and statutory provisions, and as will be
explained further below, we find no impediment for the Comelec and
the DOJ to create the Joint Committee and Fact-Finding Team for
the purpose of conducting a thorough investigation of the alleged
massive electoral fraud and the manipulation of election results in

22

the 2004 and 2007 national elections relating in particular to the

presidential and senatorial elections.73
Constitutionality of Joint-Order No. 001-2011
A. Equal Protection Clause
Petitioners claim that the creation of the Joint Committee and FactFinding Team is in violation of the equal protection clause of the
Constitution because its sole purpose is the investigation and
prosecution of certain persons and incidents. They argue that there
is no substantial distinction between the allegations of massive
electoral fraud in 2004 and 2007, on the one hand, and previous and
subsequent national elections, on the other hand; and no substantial
distinction between petitioners and the other persons or public
officials who might have been involved in previous election offenses.
They insist that the Joint Panel was created to target only the Arroyo
Administration as well as public officials linked to the Arroyo
Administration. To bolster their claim, petitioners explain that Joint
Order No. 001-2011 is similar to Executive Order No. 1 (creating the
Philippine Truth Commission) which this Court had already nullified
for being
violative of the equal protection clause.
Respondents, however, refute the above contentions and argue that
the wide array of the possible election offenses and broad spectrum
of individuals who may have committed them, if any, immediately
negate the assertion that the assailed orders are aimed only at the
officials of the Arroyo Administration.
We agree with the respondents.
The equal protection clause is enshrined in Section 1, Article III of
the Constitution which reads:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.74
The concept of equal protection has been laid down in Biraogo v.
Philippine Truth Commission of 2010:75
One of the basic principles on which this government was founded is
that of the equality of right which is embodied in Section 1, Article III
of the 1987 Constitution. The equal protection of the laws is
embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has
been embodied in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or hostility
from the government. Arbitrariness in general may be challenged on
the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.
According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed. It requires public bodies and institutions to treat similarlysituated individuals in a similar manner. The purpose of the equal
protection clause is to secure every person within a state's
jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statute or by its improper
execution through the state's duly-constituted authorities. In other
words, the concept of equal justice under the law requires the state
to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate
governmental objective.76
Unlike the matter addressed by the Courts ruling in Biraogo v.
Philippine Truth Commission of 2010, Joint Order No. 001-2011
cannot be nullified on the ground that it singles out the officials of the
Arroyo Administration and, therefore, it infringes the equal protection
clause. The Philippine Truth Commission of 2010 was expressly

created for the purpose of investigating alleged graft and corruption

during the Arroyo Administration since Executive Order No.
177 specifically referred to the "previous administration"; while the
Joint Committee was created for the purpose of conducting
preliminary investigation of election offenses during the 2004 and
2007 elections. While GMA and Mike Arroyo were among those
subjected to preliminary investigation, not all respondents therein
were linked to GMA as there were public officers who were
investigated upon in connection with their acts in the performance of
their official duties. Private individuals were also subjected to the
investigation by the Joint Committee.
The equal protection guarantee exists to prevent undue favor or
privilege. It is intended to eliminate discrimination and oppression
based on inequality. Recognizing the existence of real differences
among men, it does not demand absolute equality. It merely requires
that all persons under like circumstances and conditions shall be
treated alike both as to privileges conferred and liabilities enforced. 78
We once held that the Office of the Ombudsman is granted virtually
plenary investigatory powers by the Constitution and by law and
thus may, for every particular investigation, whether commenced by
complaint or on its own initiative, decide how best to pursue each
investigation. Since the Office of the Ombudsman is granted such
latitude, its varying treatment of similarly situated investigations
cannot by itself be considered a violation of any of the parties rights
to the equal protection of the laws.79 This same doctrine should
likewise apply in the present case.
Thus, as the constitutional body granted with the broad power of
enforcing and administering all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and
recall,80 and tasked to ensure free, orderly, honest, peaceful, and
credible elections,81 the Comelec has the authority to determine how
best to perform such constitutional mandate. Pursuant to this
authority, the Comelec issues various resolutions prior to every local
or national elections setting forth the guidelines to be observed in
the conduct of the elections. This shows that every election is
distinct and requires different guidelines in order to ensure that the
rules are updated to respond to existing circumstances.
Moreover, as has been practiced in the past, complaints for
violations of election laws may be filed either with the Comelec or
with the DOJ. The Comelec may even initiate, motu proprio,
complaints for election offenses.82
Pursuant to law and the Comelecs own Rules, investigations may
be conducted either by the Comelec itself through its law
department or through the prosecutors of the DOJ. These varying
procedures and treatment do not, however, mean that respondents
are not treated alike. Thus, petitioners insistence of infringement of
their constitutional right to equal protection of the law is misplaced.
B. Due Process
Petitioners claim that the Joint Panel does not possess the required
cold neutrality of an impartial judge because it is all at once the
evidence-gatherer, prosecutor and judge. They explain that since
the Fact-Finding Team has found probable cause to subject them to
preliminary investigation, it is impossible for the Joint Committee to
arrive at an opposite conclusion. Petitioners likewise express doubts
of any possibility that the Joint Committee will be fair and impartial to
them as Secretary De Lima and Chairman Brillantes had repeatedly
expressed prejudgment against petitioners through their statements
captured by the media.
For their part, respondents contend that petitioners failed to present
proof that the President of the Philippines, Secretary of Justice, and
Chairman of the Comelec actually made the statements allegedly
prejudging their case and in the context in which they interpreted
them. They likewise contend that assuming that said statements
were made, there was no showing that Secretary De Lima had tried
to intervene in the investigation to influence its outcome nor was it
proven that the Joint Committee itself had prejudged the case.
Lastly, they point out that Joint Order No. 001-2011 created two

23

bodies, the Fact-Finding Team and the Joint Committee, with their
respective mandates. Hence, they cannot be considered as one.

of the Joint Panel are existing officers of the DOJ and the Comelec
who exercise duties and functions that are already vested in them.

We find for respondents.

Again, we agree with respondents.

It is settled that the conduct of preliminary investigation is, like court

proceedings, subject to the requirements of both substantive and
procedural due process.83 Preliminary investigation is considered as
a judicial proceeding wherein the prosecutor or investigating officer,
by the nature of his functions, acts as a quasi-judicial officer.84 The
authority of a prosecutor or investigating officer duly empowered to
preside over or to conduct a preliminary investigation is no less than
that of a municipal judge or even an RTC Judge.85 Thus, as
emphasized by the Court in Ladlad v. Velasco:86

As clearly explained above, the Comelec is granted the power to

investigate, and where appropriate, prosecute cases of election
offenses. This is necessary in ensuring free, orderly, honest,
peaceful and credible elections. On the other hand, the DOJ is
mandated to administer the criminal justice system in accordance
with the accepted processes thereof consisting in the investigation
of the crimes, prosecution of offenders and administration of the
correctional system.91 It is specifically empowered to "investigate the
commission of crimes, prosecute offenders and administer the
probation and correction system."92 Also, the provincial or city
prosecutors and their assistants, as well as the national and regional
state prosecutors, are specifically named as the officers authorized
to conduct preliminary investigation.93 Recently, the Comelec,
through its duly authorized legal offices, is given the power,
concurrent with the other prosecuting arms of the government such
as the DOJ, to conduct preliminary investigation of all election
offenses.94

x x x We cannot emphasize too strongly that prosecutors should not

allow, and should avoid, giving the impression that their noble office
is being used or prostituted, wittingly or unwittingly, for political ends,
or other purposes alien to, or subversive of, the basic and
fundamental objective of serving the interest of justice
evenhandedly, without fear or favor to any and all litigants alike,
whether rich or poor, weak or strong, powerless or mighty. Only by
strict adherence to the established procedure may public's
perception of the impartiality of the prosecutor be enhanced. 87
In this case, as correctly pointed out by respondents, there was no
showing that the statements claimed to have prejudged the case
against petitioners were made by Secretary De Lima and Chairman
Brillantes or were in the prejudicial context in which petitioners
claimed the statements were made. A reading of the statements
allegedly made by them reveals that they were just responding to
hypothetical questions in the event that probable cause would
eventually be found by the Joint Committee.
More importantly, there was no proof or even an allegation that the
Joint Committee itself, tasked to conduct the requisite preliminary
investigation against petitioners, made biased statements that would
convey to the public that the members were favoring a particular
party. Neither did the petitioners show that the President of the
Philippines, the Secretary of Justice or the Chairman of the Comelec
intervened in the conduct of the preliminary investigation or exerted
undue pressure on their subordinates to tailor their decision with
their public declarations and adhere to a pre-determined
result.88 Moreover, insofar as the Comelec is concerned, it must be
emphasized that the constitutional body is collegial. The act of the
head of a collegial body cannot be considered as that of the entire
body itself.89 In equating the alleged bias of the above-named
officials with that of the Joint Committee, there would be no arm of
the government credible enough to conduct a preliminary
investigation.90
It must also be emphasized that Joint Order No. 001-2011 created
two bodies, namely: (1) the Fact-Finding Team tasked to gather real,
documentary and testimonial evidence which can be utilized in the
preliminary investigation to be conducted by the Joint Committee;
and (2) the Joint Committee mandated to conduct preliminary
investigation. It is, therefore, inaccurate to say that there is only one
body which acted as evidence-gatherer, prosecutor and judge.
C. Separation of powers
Petitioners claim that the Joint Panel is a new public office as shown
by its composition, the creation of its own Rules of Procedure, and
the source of funding for its operation. It is their position that the
power of the DOJ to investigate the commission of crimes and the
Comelecs constitutional mandate to investigate and prosecute
violations of election laws do not include the power to create a new
public office in the guise of a joint committee. Thus, in creating the
Joint Panel, the DOJ and the Comelec encroached upon the power
of the Legislature to create public office.
Respondents dispute this and contend that the Joint Committee and
Fact-Finding Team are not new public offices, but merely
collaborations between two existing government agencies sharing
concurrent jurisdiction. This is shown by the fact that the members

Undoubtedly, it is the Constitution, statutes, and the Rules of Court

and not the assailed Joint Order which give the DOJ and the
Comelec the power to conduct preliminary investigation. No new
power is given to them by virtue of the assailed order. As to the
members of the Joint Committee and Fact-Finding Team, they
perform such functions that they already perform by virtue of their
current positions as prosecutors of the DOJ and legal officers of the
Comelec. Thus, in no way can we consider the Joint Committee as a
new public office.

D. Independence of the Comelec

Petitioners claim that in creating the Joint Panel, the Comelec has
effectively abdicated its constitutional mandate to investigate and,
where appropriate, to prosecute cases of violation of election laws
including acts or omissions constituting election frauds, offenses,
and malpractices in favor of the Executive Department acting
through the DOJ Secretary. Under the set- up, the Comelec
personnel is placed under the supervision and control of the DOJ.
The chairperson is a DOJ official. Thus, the Comelec has willingly
surrendered its independence to the DOJ and has acceded to share
its exercise of judgment and discretion with the Executive Branch.
We do not agree.
Section 1,95 Article IX-A of the 1987 Constitution expressly describes
all the Constitutional Commissions as independent. Although
essentially executive in nature, they are not under the control of the
President of the Philippines in the discharge of their respective
functions.96 The Constitution envisions a truly independent Comelec
committed to ensure free, orderly, honest, peaceful, and credible
elections and to serve as the guardian of the peoples sacred right of
suffrage the citizenrys vital weapon in effecting a peaceful change
of government and in achieving and promoting political stability.97
Prior to the amendment of Section 265 of the Omnibus Election
Code, the Comelec had the exclusive authority to investigate and
prosecute election offenses. In the discharge of this exclusive
power, the Comelec was given the right to avail and, in fact, availed
of the assistance of other prosecuting arms of the government such
as the prosecutors of the DOJ. By virtue of this continuing authority,
the state prosecutors and the provincial or city prosecutors were
authorized to receive the complaint for election offense and delegate
the conduct of investigation to any of their assistants. The
investigating prosecutor, in turn, would make a recommendation
either to dismiss the complaint or to file the information. This
recommendation is subject to the approval of the state, provincial or
city prosecutor, who himself may file the information with the proper

24

court if he finds sufficient cause to do so, subject, however, to the

accuseds right to appeal to the Comelec.98
Moreover, during the past national and local elections, the Comelec
issued Resolutions99 requesting the Secretary of Justice to assign
prosecutors as members of Special Task Forces to assist the
Comelec in the investigation and prosecution of election offenses.
These Special Task Forces were created because of the need for
additional lawyers to handle the investigation and prosecution of
election offenses.
Clearly, the Comelec recognizes the need to delegate to the
prosecutors the power to conduct preliminary investigation.
Otherwise, the prompt resolution of alleged election offenses will not
be attained. This delegation of power, otherwise known as
deputation, has long been recognized and, in fact, been utilized as
an effective means of disposing of various election offense cases.
Apparently, as mere deputies, the prosecutors played a vital role in
the conduct of preliminary investigation, in the resolution of
complaints filed before them, and in the filing of the informations with
the proper court.
As pointed out by the Court in Barangay Association for National
Advancement and Transparency (BANAT) Party-List v. Commission
on Elections,100 the grant of exclusive power to investigate and
prosecute cases of election offenses to the Comelec was not by
virtue of the Constitution but by the Omnibus Election Code which
was eventually amended by Section 43 of R.A. 9369. Thus, the DOJ
now conducts preliminary investigation of election offenses
concurrently with the Comelec and no longer as mere deputies. If
the prosecutors had been allowed to conduct preliminary
investigation and file the necessary information by virtue only of a
delegated authority, they now have better grounds to perform such
function by virtue of the statutory grant of authority. If deputation was
justified because of lack of funds and legal officers to ensure prompt
and fair investigation and prosecution of election offenses, the same
justification should be cited to justify the grant to the other
prosecuting arms of the government of such concurrent jurisdiction.
In view of the foregoing disquisition, we find no impediment for the
creation of a Joint Committee. While the composition of the Joint
Committee and Fact-Finding Team is dominated by DOJ officials, it
does not necessarily follow that the Comelec is inferior. Under the
Joint Order, resolutions of the Joint Committee finding probable
cause for election offenses shall still be approved by the Comelec in
accordance with the Comelec Rules of Procedure. This shows that
the Comelec, though it acts jointly with the DOJ, remains in control
of the proceedings. In no way can we say that the Comelec has
thereby abdicated its independence to the executive department.
The text and intent of the constitutional provision granting the
Comelec the authority to investigate and prosecute election offenses
is to give the Comelec all the necessary and incidental powers for it
to achieve the objective of holding free, orderly, honest, peaceful,
and credible elections.101 The Comelec should be allowed
considerable latitude in devising means and methods that will insure
the accomplishment of the great objective for which it was
created.102 We may not agree fully with its choice of means, but
unless these are clearly illegal or constitute gross abuse of
discretion, this Court should not interfere.103 Thus, Comelec
Resolution No. 9266, approving the creation of the Joint Committee
and Fact-Finding Team, should be viewed not as an abdication of
the constitutional bodys independence but as a means to fulfill its
duty of ensuring the prompt investigation and prosecution of election
offenses as an adjunct of its mandate of ensuring a free, orderly,
honest, peaceful and credible elections.
Although it belongs to the executive department, as the agency
tasked to investigate crimes, prosecute offenders, and administer
the correctional system, the DOJ is likewise not barred from acting
jointly with the Comelec. It must be emphasized that the DOJ and
the Comelec exercise concurrent jurisdiction in conducting
preliminary investigation of election offenses. The doctrine of
concurrent jurisdiction means equal jurisdiction to deal with the
same subject matter.104Contrary to the contention of the petitioners,
there is no prohibition on simultaneous exercise of power between
two coordinate bodies. What is prohibited is the situation where one

files a complaint against a respondent initially with one office (such

as the Comelec) for preliminary investigation which was immediately
acted upon by said office and the re-filing of substantially the same
complaint with another office (such as the DOJ). The subsequent
assumption of jurisdiction by the second office over the cases filed
will not be allowed. Indeed, it is a settled rule that the body or
agency that first takes cognizance of the complaint shall exercise
jurisdiction to the exclusion of the others.105 As cogently held by the
Court in Department of Justice v. Hon. Liwag:106
To allow the same complaint to be filed successively before two or
more investigative bodies would promote multiplicity of proceedings.
It would also cause undue difficulties to the respondent who would
have to appear and defend his position before every agency or body
where the same complaint was filed. This would lead hapless
litigants at a loss as to where to appear and plead their cause or
defense.
There is yet another undesirable consequence. There is the distinct
possibility that the two bodies exercising jurisdiction at the same
time would come up with conflicting resolutions regarding the guilt of
the respondents.
Finally, the second investigation would entail an unnecessary
expenditure of public funds, and the use of valuable and limited
resources of Government, in a duplication of proceedings already
started with the Ombudsman.107
None of these problems would likely arise in the present case. The
Comelec and the DOJ themselves agreed that they would exercise
their concurrent jurisdiction jointly. Although the preliminary
investigation was conducted on the basis of two complaints the
initial report of the Fact-Finding Team and the complaint of Senator
Pimentel both complaints were filed with the Joint Committee.
Consequently, the complaints were filed with and the preliminary
investigation was conducted by only one investigative body. Thus,
we find no reason to disallow the exercise of concurrent jurisdiction
jointly by those given such authority. This is especially true in this
case given the magnitude of the crimes allegedly committed by
petitioners. The joint preliminary investigation also serves to
maximize the resources and manpower of both the Comelec and the
DOJ for the prompt disposition of the cases.
Citing the principle of concurrent jurisdiction, petitioners insist that
the investigation conducted by the Comelec involving Radam and
Martirizar bars the creation of the Joint Committee for purposes of
conducting another preliminary investigation. In short, they claim
that the exercise by the Comelec of its jurisdiction to investigate
excludes other bodies such as the DOJ and the Joint Committee
from taking cognizance of the case. Petitioners add that the
investigation should have been conducted also by the Comelec as
the 2007 cases of Radam and Martirizar include several John Does
and Jane Does.
We do not agree.
While the Comelec conducted the preliminary investigation against
Radam, Martirizar and other unidentified persons, it only pertains to
election offenses allegedly committed in North and South Cotabato.
On the other hand, the preliminary investigation conducted by the
Joint Committee (involving GMA) pertains to election offenses
supposedly committed in Maguindanao. More importantly,
considering the broad power of the Comelec to choose the means of
fulfilling its duty of ensuring the prompt investigation and prosecution
of election offenses as discussed earlier, there is nothing wrong if
the Comelec chooses to work jointly with the DOJ in the conduct of
said investigation. To reiterate, in no way can we consider this as an
act abdicating the independence of the Comelec.
Publication Requirement
In the conduct of preliminary investigation, the DOJ is governed by
the Rules of Court, while the Comelec is governed by the 1993
Comelec Rules of Procedure. There is, therefore, no need to
promulgate new Rules as may be complementary to the DOJ and
Comelec Rules.

25

As earlier discussed, considering that Joint Order No. 001-2011 only

enables the Comelec and the DOJ to exercise powers which are
already vested in them by the Constitution and other existing laws, it
need not be published for it to be valid and effective. A close
examination of the Joint Committees Rules of Procedure, however,
would show that its provisions affect the public. Specifically, the
following provisions of the Rules either restrict the rights of or
provide remedies to the affected parties, to wit: (1) Section 1
provides that "the Joint Committee will no longer entertain
complaints from the public as soon as the Fact-Finding Team
submits its final report, except for such complaints involving offenses
mentioned in the Fact-Finding Teams Final Report"; (2) Section 2
states that "the Joint Committee shall not entertain a Motion to
Dismiss"; and (3) Section 5 provides that a Motion for
Reconsideration may be availed of by the aggrieved parties against
the Joint Committees Resolution. Consequently, publication of the
Rules is necessary.
The publication requirement covers not only statutes but
administrative regulations and issuances, as clearly outlined in
Taada v. Tuvera:108 effectivity, which shall begin fifteen days after
publication unless a different effectivity date is fixed by the
legislature. Covered by this rule are presidential decrees and
executive orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated by the
legislature or, at present, directly conferred by the Constitution.
Administrative rules and regulations must also be published if their
purpose is to enforce or implement existing law pursuant also to a
valid delegation. Interpretative regulations and those merely internal
in nature, that is, regulating only the personnel of the administrative
agency and not the public, need not be published. Neither is
publication required of the so called letters of instructions issued by
administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties. 109
As opposed to Honasan II v. The Panel of Investigating Prosecutors
of the Department of Justice,110 where the Court held that OMB-DOJ
Joint Circular No. 95-001 is only an internal arrangement between
the DOJ and the Office of the Ombudsman outlining the authority
and responsibilities among prosecutors of both offices in the conduct
of preliminary investigation, the assailed Joint Committees Rules of
Procedure regulate not only the prosecutors of the DOJ and the
Comelec but also the conduct and rights of persons, or the public in
general. The publication requirement should, therefore, not be
ignored.
Publication is a necessary component of procedural due process to
give as wide publicity as possible so that all persons having an
interest in the proceedings may be notified thereof.111 The
requirement of publication is intended to satisfy the basic
requirements of due process. It is imperative for it will be the height
of injustice to punish or otherwise burden a citizen for the
transgressions of a law or rule of which he had no notice
whatsoever.112
Nevertheless, even if the Joint Committees Rules of Procedure is
ineffective for lack of publication, the proceedings undertaken by the
Joint Committee are not rendered null and void for that reason,
because the preliminary investigation was conducted by the Joint
Committee pursuant to the procedures laid down in Rule 112 of the
Rules on Criminal Procedure and the 1993 Comelec Rules of
Procedure.
Validity of the Conduct of
Preliminary Investigation
In her Supplemental Petition,113 GMA outlines the incidents that took
place after the filing of the instant petition, specifically the issuance
by the Joint Committee of the Joint Resolution, the approval with
modification of such resolution by the Comelec and the filing of
information and the issuance of a warrant of arrest by the RTC. With
these supervening events, GMA further assails the validity of the
proceedings that took place based on the following additional
grounds: (1) the undue and unbelievable haste attending the Joint
Committees conduct of the preliminary investigation, its resolution
of the case, and its referral to and approval by the Comelec, taken in
conjunction with the statements from the Office of the President,

demonstrate a deliberate and reprehensible pattern of abuse of

inalienable rights and a blatant disregard of the envisioned integrity
and independence of the Comelec; (2) as it stands, the creation of
the Joint Committee was for the singular purpose of railroading the
proceedings in the prosecution of the petitioner and in flagrant
violation of her right to due process and equal protection of the laws;
(3) the proceedings of the Joint Committee cannot be considered
impartial and fair, considering that respondents have acted as law
enforcers, who conducted the criminal investigation, gathered
evidence and thereafter ordered the filing of complaints, and at the
same time authorized preliminary investigation based on the
complaints they caused to be filed; (4) the Comelec became an
instrument of oppression when it hastily approved the resolution of
the Joint Committee even if two of its members were in no position
to cast their votes as they admitted to not having yet read the
voluminous records of the cases; and (5) flagrant and repeated
violations of her right to due process at every stage of the
proceedings demonstrate a deliberate attempt to single out
petitioner through the creation of the Joint Committee. 114
In their Supplement to the Consolidated Comment,115 respondents
accuse petitioners of violating the rule against forum shopping. They
contend that in filing the Supplemental Petition before the Court, the
Urgent Omnibus Motion Ad Cautelam with the RTC, and the Motion
to Vacate Ad Cautelam with the Comelec, GMA raises the common
issue of whether or not the proceedings before the Joint Committee
and the Comelec are null and void for violating the Constitution.
Respondents likewise claim that the issues raised in the
supplemental petition are factual which is beyond the power of this
Court to decide.
We cannot dismiss the cases before us on the ground of forum
shopping.
Forum shopping is the act of a party against whom an adverse
judgment has been rendered in one forum, of seeking another and
possibly favorable opinion in another forum other than by appeal or
the special civil action of certiorari.116There can also be forum
shopping when a party institutes two or more suits in different
courts, either simultaneously or successively, in order to ask the
courts to rule on the same and related causes and/or to grant the
same or substantially the same reliefs on the supposition that one or
the other court would make a favorable disposition or increase a
partys chances of obtaining a favorable decision or action.117
Indeed, petitioner GMA filed a Supplemental Petition before the
Court, an Urgent Omnibus Motion Ad Cautelam before the RTC, and
a Motion to Vacate Ad Cautelam before the Comelec, emphasizing
the unbelievable haste committed by the Joint Committee and the
Comelec in disposing of the cases before them. However, a plain
reading of the allegations in GMAs motion before the RTC would
show that GMA raised the issue of undue haste in issuing the Joint
Resolution only in support of her prayer for the trial court to hold in
abeyance the issuance of the warrant of arrest, considering that her
motion for reconsideration of the denial of her motion to be furnished
copies of documents was not yet acted upon by the Joint
Committee. If at all the constitutional issue of violation of due
process was raised, it was merely incidental. More importantly, GMA
raised in her motion with the RTC the finding of probable cause as
she sought the judicial determination of probable cause which is not
an issue in the petitions before us. GMAs ultimate prayer is actually
for the court to defer the issuance of the warrant of arrest. Clearly,
the reliefs sought in the RTC are different from the reliefs sought in
this case. Thus, there is no forum shopping.
With respect to the Motion to Vacate Ad Cautelam filed with the
Comelec, while the issues raised therein are substantially similar to
the issues in the supplemental petition which, therefore, strictly
speaking, warrants outright dismissal on the ground of forum
shopping, we cannot do so in this case in light of the due process
issues raised by GMA.118 It is worthy to note that the main issues in
the present petitions are the constitutionality of the creation of the
Joint Panel and the validity of the proceedings undertaken pursuant
thereto for alleged violation of the constitutional right to due process.
In questioning the propriety of the conduct of the preliminary
investigation in her Supplemental Petition, GMA only raises her
continuing objection to the exercise of jurisdiction of the Joint

26

Committee and the Comelec. There is, therefore, no impediment for

the Court to rule on the validity of the conduct of preliminary
investigation.

g. Documents which served as basis in the allegations of

"Significant findings specific to the protested municipalities
in the Province of Sulu."

In Uy v. Office of the Ombudsman,119 the Court explained the nature

of preliminary investigation, to wit:

h. Documents which served as basis in the allegations of

"Significant findings specific to the protested municipalities
in the Province of Basilan."

A preliminary investigation is held before an accused is placed on

trial to secure the innocent against hasty, malicious, and oppressive
prosecution; to protect him from an open and public accusation of a
crime, as well as from the trouble, expenses, and anxiety of a public
trial. It is also intended to protect the state from having to conduct
useless and expensive trials. While the right is statutory rather than
constitutional, it is a component of due process in administering
criminal justice. The right to have a preliminary investigation
conducted before being bound for trial and before being exposed to
the risk of incarceration and penalty is not a mere formal or technical
right; it is a substantive right. To deny the accused's claim to a
preliminary investigation is to deprive him of the full measure of his
right to due process.120
A preliminary investigation is the crucial sieve in the criminal justice
system which spells for an individual the difference between months
if not years of agonizing trial and possibly jail term, on the one hand,
and peace of mind and liberty, on the other hand. Thus, we have
characterized the right to a preliminary investigation as not a mere
formal or technical right but a substantive one, forming part of due
process in criminal justice.121
In a preliminary investigation, the Rules of Court guarantee the
petitioners basic due process rights such as the right to be furnished
a copy of the complaint, the affidavits, and other supporting
documents, and the right to submit counter-affidavits, and other
supporting documents in her defense.122 Admittedly, GMA received
the notice requiring her to submit her counter-affidavit. Yet, she did
not comply, allegedly because she could not prepare her counteraffidavit. She claimed that she was not furnished by Senator
Pimentel pertinent documents that she needed to adequately
prepare her counter-affidavit.
In her Omnibus Motion Ad Cautelam123 to require Senator Pimentel
to furnish her with documents referred to in his complaint-affidavit
and for production of election documents as basis for the charge of
electoral sabotage, GMA prayed that the Joint Committee issue an
Order directing the Fact-Finding Team and Senator Pimentel to
furnish her with copies of the following documents:
a. Complaint-affidavit and other relevant documents of
Senator Aquilino Pimentel III filed before the Commission
on Elections against Attys. Lilia Suan-Radam and Yogie
Martirizar, as well as the Informations filed in the Regional
Trial Court of Pasay City, Branch 114 in Criminal Case
Nos. R-PSU-11-03190-CR to R-PSU-11-03200-CR.
b. Records in the petitions filed by complainant Pimentel
before the National Board of Canvassers, specifically in
NBC Case Nos. 07-162, 07-168, 07-157, 07-159, 07-161
and 07-163.
c. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Maguindanao."
d. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Lanao del Norte."
e. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Shariff Kabunsuan."
f. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Lanao del Sur."

i. Documents which served as basis in the allegations of

"Significant findings specific to the protested municipalities
in the Province of Sultan Kudarat."124
GMA likewise requested the production of election documents used
in the Provinces of South and North Cotabato and Maguindanao.125
The Joint Committee, however, denied GMAs motion which carried
with it the denial to extend the filing of her counter-affidavit.
Consequently, the cases were submitted for resolution sans GMAs
and the other petitioners counter-affidavits. This, according to GMA,
violates her right to due process of law.
We do not agree.
GMAs insistence of her right to be furnished the above-enumerated
documents is based on Section 3 (b), Rule 112 of the Rules on
Criminal Procedure, which reads:
(b) x x x
The respondent shall have the right to examine the evidence
submitted by the complainant which he may not have been
furnished and to copy them at his expense. If the evidence is
voluminous, the complainant may be required to specify those which
he intends to present against the respondent, and these shall be
made available for examination or copying by the respondent at his
expense,
Objects as evidence need not be furnished a party but shall be
made available for examination, copying or photographing at the
expense of the requesting party.126
Section 6 (a), Rule 34 of the Comelec Rules of Procedure also
grants the respondent such right of examination, to wit:
Sec. 6. Conduct of preliminary investigation. (a) If on the basis of
the complaint, affidavits and other supporting evidence, the
investigating officer finds no ground to continue with the inquiry, he
shall recommend the dismissal of the complaint and shall follow the
procedure prescribed in Sec. 8 (c) of this Rule. Otherwise, he shall
issue a subpoena to the respondent, attaching thereto a copy of the
complaint, affidavits and other supporting documents giving said
respondent ten (10) days from receipt within which to submit
counter-affidavits and other supporting documents. The respondent
shall have the right to examine all other evidence submitted by the
complainant.127
Clearly from the above-quoted provisions, the subpoena issued
against respondent therein should be accompanied by a copy of the
complaint and the supporting affidavits and documents. GMA also
has the right to examine documents but such right of examination is
limited only to the documents or evidence submitted by the
complainants (Senator Pimentel and the Fact-Finding Team) which
she may not have been furnished and to copy them at her expense.
While it is true that Senator Pimentel referred to certain election
documents which served as bases in the allegations of significant
findings specific to the protested municipalities involved, there were
no annexes or attachments to the complaint filed.128 As stated in the
Joint Committees Order dated November 15, 2011 denying GMAs
Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to
furnish petitioners with all the supporting evidence129 However,
Senator Pimentel manifested that he was adopting all the affidavits
attached to the Fact-Finding Teams Initial Report.130Therefore, when
GMA was furnished with the documents attached to the Initial

27

Report, she was already granted the right to examine as guaranteed

by the Comelec Rules of Procedure and the Rules on Criminal
Procedure. Those were the only documents submitted by the
complainants to the Committee. If there are other documents that
were referred to in Senator Pimentels complaint but were not
submitted to the Joint Committee, the latter considered those
documents unnecessary at that point (without foreclosing the
relevance of other evidence that may later be presented during the
trial)131 as the evidence submitted before it were considered
adequate to find probable cause against her.132 Anyway, the failure
of the complainant to submit documents supporting his allegations in
the complaint may only weaken his claims and eventually works for
the benefit of the respondent as these merely are allegations
unsupported by independent evidence.
We must, however, emphasize at this point that during the
preliminary investigation, the complainants are not obliged to prove
their cause beyond reasonable doubt. It would be unfair to expect
them to present the entire evidence needed to secure the conviction
of the accused prior to the filing of information.133 A preliminary
investigation is not the occasion for the full and exhaustive display of
the parties respective evidence but the presentation only of such
evidence as may engender a well-grounded belief that an offense
has been committed and that the accused is probably guilty thereof
and should be held for trial.134 Precisely there is a trial to allow the
reception of evidence for the prosecution in support of the charge. 135
With the denial of GMAs motion to be furnished with and examine
the documents referred to in Senator Pimentels complaint, GMAs
motion to extend the filing of her counter-affidavit and countervailing
evidence was consequently denied. Indeed, considering the nature
of the crime for which GMA was subjected to preliminary
investigation and the documents attached to the complaint, it is
incumbent upon the Joint Committee to afford her ample time to
examine the documents submitted to the Joint Committee in order
that she would be able to prepare her counter-affidavit. She cannot,
however, insist to examine documents not in the possession and
custody of the Joint Committee nor submitted by the complainants.
Otherwise, it might cause undue and unnecessary delay in the
disposition of the cases. This undue delay might result in the
violation of the right to a speedy disposition of cases as enshrined in
Section 16, Article III of the Constitution which states that "all
persons shall have the right to a speedy disposition of their cases
before all judicial, quasi-judicial, or administrative bodies." The
constitutional right to speedy disposition of cases is not limited to the
accused in criminal proceedings but extends to all parties in all
cases, including civil and administrative cases, and in all
proceedings, including judicial and quasi-judicial hearings.136 Any
party to a case has the right to demand on all officials tasked with
the administration of justice to expedite its disposition. 137 Society has
a particular interest in bringing swift prosecutions, and the societys
representatives are the ones who should protect that interest. 138
Even assuming for the sake of argument that the denial of GMAs
motion to be furnished with and examine the documents referred to
in Senator Pimentels complaint carried with it the denial to extend
the filing of her counter-affidavit and other countervailing evidence
rendering the preliminary investigation irregular, such irregularity
would not divest the RTC of jurisdiction over the case and would not
nullify the warrant of arrest issued in connection therewith,
considering that Informations had already been filed against
petitioners, except Mike Arroyo. This would only compel us to
suspend the proceedings in the RTC and remand the case to the
Joint Committee so that GMA could submit her counter-affidavit and
other countervailing evidence if she still opts to. However, to do so
would hold back the progress of the case which is anathema to the
accuseds right to speedy disposition of cases.
It is well settled that the absence or irregularity of preliminary
investigation does not affect the courts jurisdiction over the case.
Nor does it impair the validity of the criminal information or render it
defective. Dismissal is not the remedy.139Neither is it a ground to
quash the information or nullify the order of arrest issued against the
accused or justify the release of the accused from detention.140 The
proper course of action that should be taken is to hold in abeyance
the proceedings upon such information and to remand the case for
the conduct of preliminary investigation.141

In the landmark cases of Cojuangco, Jr. v. Presidential Commission

on Good Government (PCGG)142 and Allado v. Diokno,143 we
dismissed the criminal cases and set aside the informations and
warrants of arrest. In Cojuangco, we dismissed the criminal case
because the information was filed by the PCGG which we declared
to be unauthorized to conduct the preliminary investigation and,
consequently, file the information as it did not possess the cold
neutrality of an impartial judge. In Allado, we set aside the warrant of
arrest issued against petitioners therein and enjoined the trial court
from proceeding further for lack of probable cause. For one, there
was serious doubt on the reported death of the victim in that case
since the corpus delicti had not been established nor had his
remains been recovered;and based on the evidence submitted,
there was nothing to incriminate petitioners therein. In this case, we
cannot reach the same conclusion because the Information filed
before the RTC of Pasay City was filed by the Comelec en banc
which had the authority to file the information for electoral sabotage
and because the presence or absence of probable cause is not an
issue herein. As can be gleaned from their assignment of
errors/issues, petitioners did not question the finding of probable
cause in any of their supplemental petitions. It was only in GMAs
memorandum where she belatedly included a discussion on the
"insufficiency" of the evidence supporting the finding of probable
cause for the filing of the Information for electoral sabotage against
her.144 A closer look at her arguments, however, would show that
they were included only to highlight the necessity of examining the
election documents GMA requested to see before she could file her
counter-affidavit. At any rate, since GMA failed to submit her
counter-affidavit and other countervailing evidence within the period
required by the Joint Committee, we cannot excuse her from noncompliance.
There might have been overzealousness on the part of the Joint
Committee in terminating the investigation, endorsing the Joint
Resolution to the Comelec for approval, and in filing the information
in court. However, speed in the conduct of proceedings by a judicial
or quasi-judicial officer cannot per se be instantly attributed to an
injudicious performance of functions.145 The orderly administration of
justice remains the paramount consideration with particular regard to
the peculiar circumstances of each case.146 To be sure, petitioners
were given the opportunity to present countervailing evidence.
Instead of complying with the Joint Committees directive, several
motions were filed but were denied by the Joint Committee.
Consequently, petitioners right to submit counter-affidavit and
countervailing evidence was forfeited. Taking into account the
constitutional right to speedy disposition of cases and following the
procedures set forth in the Rules on Criminal Procedure and the
Comelec Rules of Procedure, the Joint Committee finally reached its
conclusion and referred the case to the Comelec. The latter, in turn,
performed its task and filed the information in court. Indeed,
petitioners were given the opportunity to be heard. They even
actively participated in the proceedings and in fact filed several
motions before the Joint Committee. Consistent with the
constitutional mandate of speedy disposition of cases, unnecessary
delays should be avoided.
Finally, we take judicial notice that on February 23, 2012, GMA was
already arraigned and entered a plea of "not guilty" to the charge
against her and thereafter filed a Motion for Bail which has been
granted. Considering that the constitutionality of the creation of the
Joint Panel is sustained, the actions of the Joint Committee and
Fact-Finding Team are valid and effective. As the information was
filed by the Commission authorized to do so, its validity is sustained.
Thus, we consider said entry of plea and the Petition for Bail waiver
on the part of GMA of her right to submit counter-affidavit and
countervailing evidence before the Joint Committee, and recognition
of the validity of the information against her. Her act indicates that
she opts to avail of judicial remedies instead of the executive
remedy of going back to the Joint Committee for the submission of
the counter-affidavit and countervailing evidence. Besides, as
discussed earlier, the absence or irregularity of preliminary
investigation does not affect the courts jurisdiction over the case nor
does it impair the validity of the criminal information or render it
defective.
It must be stressed, however, that this supervening event does not
render the cases before the Court moot and academic as the main
issues raised by petitioners are the constitutionality of the creation of

28

the Joint Committee and the Fact-Finding Team and the validity of
the proceedings undertaken pursuant to their respective mandates.
The Court notes that the Joint Committee and the Comelec have not
disposed of the cases of the other respondents subjects of the
preliminary investigation as some of them were subjected to further
investigation. In order to remove the cloud of doubt that pervades
that petitioners are being singled out, it is to the best interest of all
the parties concerned that the Joint Committee and the Comelec
terminate the proceedings as to the other respondents therein and
not make a piecemeal disposition of the cases.
A peripheral issue which nonetheless deserves our attention is the
question about the credibility of the Comelec brought about by the
alleged professional relationship between Comelec Chairman
Brillantes on one hand and the complainant Senator Pimentel and
Fernando Poe, Jr. (FPJ), GMAs rival in the 2004 elections, on the
other hand; and by the other Commissioners147 reasons for their
partial inhibition. To be sure, Chairman Brillantes relationship with
FPJ and Senator Pimentel is not one of the grounds for the
mandatory disqualification of a Commissioner. At its most expansive,
it may be considered a ground for voluntary inhibition which is
indeed discretionary as the same was primarily a matter of
conscience and sound discretion on the part of the Commissioner
judge based on his or her rational and logical assessment of the
case.148 Bare allegations of bias and prejudice are not enough in the
absence of clear and convincing evidence to overcome the
presumption that a judge will undertake his noble role to dispense
justice according to law and evidence without fear or favor.149 It
being discretionary and since Commissioner Brillantes was in the
best position to determine whether or not there was a need to inhibit
from the case, his decision to participate in the proceedings, in view
of higher interest of justice, equity and public interest, should be
respected. While a party has the right to seek the inhibition or
disqualification of a judge (or prosecutor or Commissioner) who
does not appear to be wholly free, disinterested, impartial, and
independent in handling the case, this right must be weighed with
his duty to decide cases without fear of repression.150
Indeed, in Javier v. Comelec,151 the Court set aside the Comelecs
decision against Javier when it was disclosed that one of the
Commissioners who had decided the case was a law partner of
Javiers opponent and who had refused to excuse himself from
hearing the case. Javier, however, is not applicable in this case.
First, the cited case involves the Comelecs exercise of its
adjudicatory function as it was called upon to resolve the propriety of
the proclamation of the winner in the May 1984 elections for
Batasang Pambansa of Antique. Clearly, the grounds for
inhibition/disqualification were applicable. Second, the case arose at
the time where the purity of suffrage has been defiled and the
popular will scorned through the confabulation of those in
authority.152 In other words, the controversy arose at the time when
the public confidence in the Comelec was practically nil because of
its transparent bias in favor of the administration.153 Lastly, in
determining the propriety of the decision rendered by the Comelec,
the Court took into consideration not only the relationship (being
former partners in the law firm) between private respondents therein,
Arturo F. Pacificador, and then Comelec Commissioner Jaime
Opinion (Commissioner Opinion) but also the general attitude of the
Comelec toward the party in power at that time. Moreover, the
questioned Comelec decision was rendered only by a division of the
Comelec. The Court thus concluded in Javier that Commissioner
Opinions refusal to inhibit himself divested the Comelecs Second
Division of the necessary vote for the questioned decision and
rendered the proceedings null and void.154
On the contrary, the present case involves only the conduct of
preliminary investigation and the questioned resolution is an act of
the Comelec En Banc where all the Commissioners participated and
more than a majority (even if Chairman Brillantes is excluded) voted
in favor of the assailed Comelec resolution. Unlike in 1986, public
confidence in the Comelec remains. The Commissioners have
already taken their positions in light of the claim of "bias and
partiality" and the causes of their partial inhibition. Their positions
should be respected confident that in doing so, they had the end in
view of ensuring that the credibility of the Commission is not
seriously affected.

To recapitulate, we find and so hold that petitioners failed to

establish any constitutional or legal impediment to the creation of the
Joint DOJ-Comelec Preliminary Investigation Committee and FactFinding Team.
First, while GMA and Mike Arroyo were among those subjected to
preliminary investigation, not all respondents therein were linked to
GMA; thus, Joint Order No. 001-2011 does not violate the equal
protection clause of the Constitution.
Second, the due process clause is likewise not infringed upon by the
alleged prejudgment of the case as petitioners failed to prove that
the Joint Panel itself showed such bias and partiality against them.
Neither was it shown that the Justice Secretary herself actually
intervened in the conduct of the preliminary investigation. More
importantly, considering that the Comelec is a collegial body, the
perceived prejudgment of Chairman Brillantes as head of the
Comelec cannot be considered an act of the body itself.
Third, the assailed Joint Order did not create new offices because
the Joint Committee and Fact-Finding Team perform functions that
they already perform by virtue of the Constitution, the statutes, and
the Rules of Court.1wphi1
Fourth, in acting jointly with the DOJ, the Comelec cannot be
considered to have abdicated its independence in favor of the
executive branch of government. Resolution No. 9266 was validly
issued by the Comelec as a means to fulfill its duty of ensuring the
prompt investigation and prosecution of election offenses as an
adjunct of its mandate of ensuring a free, orderly, honest, peaceful,
and credible elections. The role of the DOJ in the conduct of
preliminary investigation of election offenses has long been
recognized by the Comelec because of its lack of funds and legal
officers to conduct investigations and to prosecute such cases on its
own. This is especially true after R.A. No. 9369 vested in the
Comelec and the DOJ the concurrent jurisdiction to conduct
preliminary investigation of all election offenses. While we uphold
the validity of Comelec Resolution No. 9266 and Joint Order No.
001-2011, we declare the Joint Committees Rules of Procedure
infirm for failure to comply with the publication requirement.
Consequently, Rule 112 of the Rules on Criminal Procedure and the
1993 Comelec Rules of Procedure govern.
Fifth, petitioners were given the opportunity to be heard. They were
furnished a copy of the complaint, the affidavits, and other
supporting documents submitted to the Joint Committee and they
were required to submit their counter-affidavit and countervailing
evidence. As to petitioners Mike Arroyo and Abalos, the pendency of
the cases before the Court does not automatically suspend the
proceedings before the Joint Committee nor excuse them from their
failure to file the required counter-affidavits. With the foregoing
disquisitions, we find no reason to nullify the proceedings
undertaken by the Joint Committee and the Comelec in the electoral
sabotage cases against petitioners.
WHEREFORE, premises considered, the petitions and
supplemental petitions are DISMISSED. Comelec Resolution No.
9266 dated August 2, 2011, Joint Order No. 001-2011 dated August
15, 2011, and the Fact-Finding Teams Initial Report dated October
20, 2011, are declared VALID. However, the Rules of Procedure on
the Conduct of Preliminary Investigation on the Alleged Election
Fraud in the 2004 and 2007 National Elections is declared
INEFFECTIVE for lack of publication.
In view of the constitutionality of the Joint Panel and the proceedings
having been conducted in accordance with Rule 112 of the Rules on
Criminal Procedure and Rule 34 of the Comelec Rules of Procedure,
the conduct of the preliminary investigation is hereby declared
VALID.
Let the proceedings in the Regional Trial Court of Pasay City,
Branch 112, where the criminal cases for electoral sabotage against
petitioners GMA and Abalos are pending, proceed with dispatch.
SO ORDERED.

29

G.R. No. 181613

September 11, 2009

ROSALINDA A. PENERA, Petitioner,

vs.
COMMISSION ON ELECTIONS and EDGAR T.
ANDANAR, Respondents.

adjudication. It was subsequently raffled to the COMELEC Second

Division.1avvphi1
While SPA No. 07-224 was pending before the COMELEC Second
Division, the 14 May 2007 elections took place and, as a result
thereof, Penera was proclaimed the duly elected Mayor of Sta.
Monica. Penera soon assumed office on 2 July 2002.

DECISION
CHICO-NAZARIO, J.:
This Petition for Certiorari with Prayer for the Issuance of a Writ of
Preliminary Injunction and/or Temporary Restraining Order 1 under
Rule 65, in relation to Rule 64 of the Rules of Court, seeks the
nullification of the Resolution2 dated 30 January 2008 of the
Commission on Elections (COMELEC) en banc. Said Resolution
denied the Motion for Reconsideration of the earlier
Resolution3 dated 24 July 2007 of the COMELEC Second Division in
SPA No. 07-224, ordering the disqualification of herein petitioner
Rosalinda A. Penera (Penera) as a candidate for the position of
mayor of the Municipality of Sta. Monica, Surigao del Norte (Sta.
Monica) in the 2007 Synchronized National and Local Elections.
The antecedents of the case, both factual and procedural, are set
forth hereunder:
Penera and private respondent Edgar T. Andanar (Andanar) were
mayoralty candidates in Sta. Monica during the 14 May 2007
elections.
On 2 April 2007, Andanar filed before the Office of the Regional
Election Director (ORED), Caraga Region (Region XIII), a Petition
for Disqualification4 against Penera, as well as the candidates for
Vice-Mayor and Sangguniang Bayan who belonged to her political
party,5 for unlawfully engaging in election campaigning and partisan
political activity prior to the commencement of the campaign period.
The petition was docketed as SPA No. 07-224.
Andanar claimed that on 29 March 2007 a day before the start of
the authorized campaign period on 30 March 2007 Penera and her
partymates went around the different barangays in Sta. Monica,
announcing their candidacies and requesting the people to vote for
them on the day of the elections. Attached to the Petition were the
Affidavits of individuals6 who witnessed the said incident.
Penera alone filed an Answer7 to the Petition on 19 April 2007,
averring that the charge of premature campaigning was not true.
Although Penera admitted that a motorcade did take place, she
explained that it was simply in accordance with the usual practice in
nearby cities and provinces, where the filing of certificates of
candidacy (COCs) was preceded by a motorcade, which dispersed
soon after the completion of such filing. In fact, Penera claimed, in
the motorcade held by her political party, no person made any
speech, not even any of the candidates. Instead, there was only
marching music in the background and "a grand standing for the
purpose of raising the hands of the candidates in the motorcade."
Finally, Penera cited Barroso v. Ampig8 in her defense, wherein the
Court supposedly ruled that a motorcade held by candidates during
the filing of their COCs was not a form of political campaigning.
Also on 19 April 2007, Andanar and Penera appeared with their
counsels before the ORED-Region XIII, where they agreed to submit
their position papers and other evidence in support of their
allegations.9
After the parties filed their respective Position Papers, the records of
the case were transmitted to the COMELEC main office in Manila for

On 24 July 2007, the COMELEC Second Division issued its

Resolution in SPA No. 07-224, penned by Commissioner Nicodemo
T. Ferrer (Ferrer), which disqualified Penera from continuing as a
mayoralty candidate in Sta. Monica, for engaging in premature
campaigning, in violation of Sections 80 and 68 of the Omnibus
Election Code.
The COMELEC Second Division found that:
On the afternoon of 29 March 2007, the 1st [sic] day to file the
certificates of candidacy for local elective positions and a day before
the start of the campaign period for the May 14, 2007 elections
[some of the members of the political party Partido Padajon
Surigao], headed by their mayoralty candidate "Datty" Penera, filed
their respective Certificates of Candidacy before the Municipal
Election Officer of Sta. Monica, Surigao del Norte.
Accompanied by a bevy of supporters, [Penera and her partymates]
came to the municipal COMELEC office on board a convoy of two
(2) trucks and an undetermined number of motorcycles, laden with
balloons ad [sic] posters/banners containing names and pictures
and the municipal positions for which they were seeking election.
Installed with [sic] one of the trucks was a public speaker sound
subsystem which broadcast [sic] the intent the [sic] run in the
coming elections. The truck had the posters of Penera attached to it
proclaiming his [sic] candidacy for mayor. The streamer of [Mar
Longos, a candidate for the position of Board Member,] was proudly
seen at the vehicles side. The group proceeded to motorcade until
the barangays of Bailan, Libertad and as afar [sic] as Mabini almost
nine (9) kilometers from Sta. Monica. [Penera and her partymates]
were seen aboard the vehicles and throwing candies to the
residents and onlookers.
Various affidavits and pictures were submitted elucidating the
above-mentioned facts. The above facts were also admitted in the
Answer, the Position Paper and during the hearings conducted for
this case, the only defense propounded by [Penera] is that such acts
allegedly do not constitute campaigning and is therefore not
proscribed by the pertinent election laws.
xxxx
What we however find disturbing is [Peneras] reference to the
Ampig Case as the justification for the acts committed by [her].
There is really no reference to the acts or similar acts committed by
[Penera] as having been considered as not constituting political
campaign or partisan political activity. The issue in that case is
whether or not the defect of the lack of a certification against nonforum [sic] shopping should result to the immediate dismissal of the
election cases filed in that case. There is nothing in said case
justifying a motorcade during the filing of certificates of candidacy.
[Peneras] reliance thereon is therefore misplaced and of no potency
at all.
xxxx
However, the photos submitted by [Andanar] only identified [Penera]
and did not have any notation identifying or indicating any of the
other [candidates from Peneras party]. It cannot be conclusively

30

proven that the other [candidates from Peneras party] were indeed
with Penera during the Motorcade. More importantly, the Answer
and the Position Paper contain admissions referring only to
[Penera]. There is therefore no justification for a whole sale [sic]
disqualification of all the [candidates from Peneras party], as even
the petition failed to mention particularly the participation of the other
individual [party members].10
The afore-quoted findings of fact led the COMELEC Second Division
to decree:
PREMISES CONSIDERED, this Commission resolves to disqualify
[Penera] but absolves the other [candidates from Peneras party]
from violation of section 80 and 68 of the Omnibus Elections [sic]
Code.11
Commissioner Florentino A. Tuason, Jr. (Tuason) wrote a Separate
Opinion12 on the 24 July 2007 Resolution. Although Commissioner
Tuason concurred with the ponente, he stressed that, indeed,
Penera should be made accountable for her actions after the filing of
her COC on 29 March 2007. Prior thereto, there was no candidate
yet whose candidacy would have been enhanced by the premature
campaigning.
It was the third member of the COMELEC Second Division,
Commissioner Rene V. Sarmiento (Sarmiento) who put forth a
Dissenting Opinion13 on the 24 July 2007 Resolution. Commissioner
Sarmiento believed that the pieces of evidence submitted by
Andanar did not sufficiently establish probable cause that Penera
engaged in premature campaigning, in violation of Sections 80 and
68 of the Omnibus Election Code. The two photocopied pictures,
purporting to be those of Penera, did not clearly reveal what was
actually happening in the truck or who were the passengers thereof.
Likewise, the Affidavits seemed to have been prepared and
executed by one and the same person because they had similar
sentence construction and form, and they were sworn to before the
same attesting officer.
Penera filed before the COMELEC en banc a Motion for
Reconsideration14 of the 24 July 2007 Resolution of the COMELEC
Second Division, maintaining that she did not make any admission
on the factual matters stated in the appealed resolution. Penera also
contended that the pictures and Affidavits submitted by Andanar
should not have been given any credence. The pictures were mere
photocopies of the originals and lacked the proper authentication,
while the Affidavits were taken ex parte, which would almost always
make them incomplete and inaccurate. Subsequently, Penera filed a
Supplemental Motion for Reconsideration,15 explaining that
supporters spontaneously accompanied Penera and her fellow
candidates in filing their COCs, and the motorcade that took place
after the filing was actually part of the dispersal of said supporters
and their transportation back to their respective barangays.
In the Resolution dated 30 January 2008, the COMELEC en banc
denied Peneras Motion for Reconsideration, disposing thus:
WHEREFORE, this Commission RESOLVES to DENY the instant
Motion for Reconsideration filed by [Penera] for UTTER LACK OF
MERIT.16
The COMELEC en banc ruled that Penera could no longer advance
the arguments set forth in her Motion for Reconsideration and
Supplemental Motion for Reconsideration, given that she failed to
first express and elucidate on the same in her Answer and Position
Paper. Penera did not specifically deny the material averments that
the motorcade "went as far as Barangay Mabini, announcing their
candidacy and requesting the people to vote for them on Election

Day," despite the fact that the same were clearly propounded by
Andanar in his Petition for Disqualification and Position Paper.
Therefore, these material averments should be considered admitted.
Although the COMELEC en banc agreed that no undue importance
should be given to sworn statements or affidavits submitted as
evidence, this did not mean that such affidavits should not be given
any evidentiary weight at all. Since Penera neither refuted the
material averments in Andanars Petition and the Affidavits attached
thereto nor submitted countervailing evidence, then said Affidavits,
even if taken ex parte, deserve some degree of importance. The
COMELEC en banc likewise conceded that the pictures submitted
by Andanar as evidence would have been unreliable, but only if they
were presented by their lonesome. However, said pictures, together
with Peneras admissions and the Affidavits of Andanars witnesses,
constituted sufficient evidence to establish Peneras violation of the
rule against premature campaigning. Lastly, the COMELEC en banc
accused Penera of deliberately trying to mislead the Commission by
citing Barroso, given that the said case was not even remotely
applicable to the case at bar.
Consistent with his previous stand, Commissioner Sarmiento again
dissented17 from the 30 January 2008 Resolution of the COMELEC
en banc. He still believed that Andanar was not able to adduce
substantial evidence that would support the claim of violation of
election laws. Particularly, Commissioner Sarmiento accepted
Peneras explanation that the motorcade conducted after the filing
by Penera and the other candidates of their COCs was merely part
of the dispersal of the spontaneous gathering of their supporters.
The incident was only in accord with normal human social
experience.
Still undeterred, Penera filed the instant Petition before us, praying
that the Resolutions dated 24 July 2007 and 30 January 2008 of the
COMELEC Second Division and en banc, respectively, be declared
null and void for having been issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.
In a Resolution18 dated 4 March 2008, we issued a Temporary
Restraining Order (TRO), enjoining the COMELEC from
implementing the assailed Resolutions, on the condition that Penera
post a bond in the amount of P5,000.00. We also directed
COMELEC and Andanar to comment on the instant Petition.
After the COMELEC, through the Office of the Solicitor General
(OSG), and Andanar filed their respective Comments19 on the
Petition at bar, we required Penera, in a Resolution20 dated 17 June
2008, to file a Reply. However, as no Reply was filed in due time, we
dismissed Peneras Petition in a Resolution21 dated 14 October
2008, in accordance with Rule 56, Section 5(e) of the Rules of
Court.22 Penera subsequently filed an Ex Parte Motion to Admit
Reply,23 which we treated as a Motion for Reconsideration of the
Resolution dated 14 October 2008. On 11 November 2008, we
issued another Resolution reinstating Peneras Petition.24
Penera presents the following issues for our consideration:
I.
Whether or not [Penera] has engaged in an election campaign or
partisan political activity outside the campaign period.
II.
Whether the contents of the complaint are deemed admitted for
failure of [Penera] to specifically deny the same.
III.

31

Whether or not [Andanar] has presented competent and substantial

evidence to justify a conclusion that [Penera] violated Section 80
and 68 of the Omnibus Election Code.
IV.
Whether or not [the COMELEC] committed grave abuse of
discretion amounting to lack of or in excess of jurisdiction in finding
that the act of [Penera] in conducting a motorcade before the filing of
her certificate of candidacy constitutes premature campaigning.
V.
Whether or not [the COMELEC] committed grave abuse of
discretion amounting to lack of or in excess of jurisdiction when it
resolves [sic] to disqualify [Penera] despite the failure of [Andanar]
to present competent, admissible and substantial evidence to prove
[the] violation of Section 68 and 80 of the Omnibus Election Code.
Penera claims that the COMELEC exercised its discretion
despotically, arbitrarily and whimsically in disqualifying her as a
mayoralty candidate in Sta. Monica on the ground that she engaged
in premature campaigning. She asserts that the evidence adduced
by Andanar was grossly insufficient to warrant the ruling of the
COMELEC.
Penera insists that the COMELEC Second Division erred in its
findings of fact, basically adopting Andanars allegations which,
contrary to the belief of the COMELEC Second Division, Penera
never admitted. Penera maintains that the motorcade was
spontaneous and unplanned, and the supporters merely joined
Penera and the other candidates from her party along the way to, as
well as within the premises of, the office of the COMELEC Municipal
Election Officer. Andanars averments that after Penera and the
other candidates from her party filed their COCs, they held a
motorcade in the different barangays of Sta. Monica, waived their
hands to the public and threw candies to the onlookers were not
supported by competent substantial evidence. Echoing
Commissioner Sarmientos dissent from the assailed COMELEC
Resolutions, Penera argues that too much weight and credence
were given to the pictures and Affidavits submitted by Andanar. The
declaration by the COMELEC that it was Penera in the pictures is
tenuous and erroneous, as the COMELEC has no personal
knowledge of Peneras identity, and the said pictures do not clearly
reveal the faces of the individuals and the contents of the posters
therein. In the same vein, the Affidavits of Andanars known
supporters, executed almost a month after Andanar filed his Petition
for Disqualification before the ORED-Region XIII, were obviously
prepared and executed by one and the same person, because they
have a similar sentence construction, and computer font and form,
and were even sworn to before the same attesting officer on the
same date.
We find no merit in the instant Petition.
The questions of fact
Crystal clear from the above arguments is that Penera is raising only
questions of fact in her Petition presently before us. We do not find
any reason to pass upon the same, as this Court is not a trier of
facts. It is not the function of the Court to review, examine and
evaluate or weigh the probative value of the evidence presented. A
question of fact would arise in such an event.
The sole function of a writ of certiorari is to address issues of want of
jurisdiction or grave abuse of discretion, and it does not include a
review of the tribunals evaluation of the evidence.25 Because of its

fact-finding facilities and its knowledge derived from actual

experience, the COMELEC is in a peculiarly advantageous position
to evaluate, appreciate and decide on factual questions before it.
Factual findings of the COMELEC, based on its own assessments
and duly supported by evidence, are conclusive on this Court, more
so in the absence of a grave abuse of discretion, arbitrariness,
fraud, or error of law in the questioned resolutions. Unless any of
these causes are clearly substantiated, the Court will not interfere
with the findings of fact of the COMELEC.26
Grave abuse of discretion is such capricious and whimsical exercise
of judgment equivalent to lack of jurisdiction. Mere abuse of
discretion is not enough. It must be grave, as when it is exercised
arbitrarily or despotically by reason of passion or personal hostility.
The abuse must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law.27
We find no grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the COMELEC Second Division in
disqualifying Penera as a mayoralty candidate in Sta. Monica in the
Resolution dated 24 July 2007; and also on the part of the
COMELEC en banc in denying Peneras Motion for Reconsideration
on the Resolution dated 30 January 2008. Said Resolutions are
sufficiently supported by substantial evidence, meaning, such
evidence as a reasonable mind might accept as adequate to support
a conclusion.28
The prohibited act of premature campaigning is defined under
Section 80 of the Omnibus Election Code, to wit:
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: 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 Vice-Presidential election. (Emphasis ours.)
If the commission of the prohibited act of premature campaigning is
duly proven, the consequence of the violation is clearly spelled out
in Section 68 of the said Code, which reads:
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 xxx
(e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d,
e, k, v, and cc, subparagraph 6, shall be disqualified from
continuing as a candidate, or if he has been elected, from
holding the office. Any person who is a permanent resident of or
an immigrant to a foreign country shall not be qualified to run for any
elective office under this Code, unless said person has waived his
status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the
election laws. (Emphases ours.)
In the case at bar, it had been sufficiently established, not just by
Andanars evidence, but also those of Penera herself, that Penera
and her partymates, after filing their COCs on 29 March 2007,
participated in a motorcade which passed through the different
barangays of Sta. Monica, waived their hands to the public, and
threw candies to the onlookers.
Indeed, Penera expressly admitted in her Position Paper that:

32

Respondents actually had a motorcade of only two (2) jeppneys [sic]

and ten (10) motorcycles after filing their Certificate of Candidacy at
3:00 P.M., March 29, 2007 without any speeches made and only one
streamer of a board member Candidate and multi-colored balloons
attached to the jeppneys [sic] and motorcycles.29 (Emphasis ours.)
Additionally, the Joint Affidavit of Marcial Dolar, Allan Llatona, and
Renante Platil, attached to Peneras Position Paper, gave an even
more straightforward account of the events, thus:
1. That on March 29, 2007 at 3:00 P.M. at Sta. Monica,
Surigao del Norte, Mayoralty Candidates Rosalinda CA.
Penera [sic] and her parties of four (4) kagawads filed their
certificate of candidacy at the COMELEC Office;
2. That their [sic] was a motorcade consisting of two
jeppneys [sic] and 10 motorcycles after actual registration
with the COMELEC with jeeps decorated with balloons and
a streamer of Margarito Longos, Board Member
Candidate;
3. That the motorcade proceeded to three (3) barangays
out of the 11 barangays while supporters were throwing
sweet candies to the crowd;
4. That there was merriment and marching music without
mention of any name of the candidates more particularly
lead-candidate Rosalinda CA. Penera [sic];
5. That we were in the motorcade on that afternoon only
riding in one of the jeepneys.30 (Emphases ours.)
In view of the foregoing admissions by Penera and her witnesses,
Penera cannot now be allowed to adopt a conflicting position.
More importantly, the conduct of a motorcade 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[.]" A motorcade is a procession or parade of
automobiles or other motor vehicles.31 The conduct thereof during
election periods by the candidates and their supporters is a fact that
need not be belabored due to its widespread and pervasive practice.
The obvious purpose of the conduct of motorcades 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. Unmistakably, motorcades are
undertaken for no other purpose than to promote the election of a
particular candidate or candidates.
In the instant Petition, Penera never denied that she took part in the
conduct of the motorcade after she filed her COC on the day before
the start of the campaign period. She merely claimed that the same
was not undertaken for campaign purposes. Penera proffered the
excuse that the motorcade was already part of the dispersal of the
supporters who spontaneously accompanied Penera and her
partymates in filing their COCs. The said supporters were already
being transported back to their respective barangays after the COC
filing. Penera stressed that no speech was made by any person, and
there was only background marching music and a "grand standing
for the purpose of raising the hands of the candidates in the
motorcade.

As we previously noted, Penera and her witnesses admitted that the

vehicles, consisting of two jeepneys and ten motorcycles, were
festooned with multi-colored balloons; the motorcade went around
three barangays in Sta. Monica; and Penera and her partymates
waved their hands and threw sweet candies to the crowd. With
vehicles, balloons, and even candies on hand, Penera can hardly
persuade us that the motorcade was spontaneous and unplanned.
For violating Section 80 of the Omnibus Election Code, proscribing
election campaign or partisan political activity outside the campaign
period, Penera must be disqualified from holding the office of Mayor
of Sta. Monica.
The questions of law
The dissenting opinion, however, raises the legal issue that Section
15 of Republic Act No. 8436, as amended by Republic Act No. 9369,
provides a new definition of the term "candidate," as a result of
which, premature campaigning may no longer be committed.
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."
Republic Act No. 8436,32 enacted on 22 December 1997, authorized
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. The statute also
mandated the COMELEC to acquire automated counting machines,
computer equipment, devices and materials; and to adopt new
electoral forms and printing materials. In particular, Section 11 of
Republic Act No. 8436 provided for the specifications of the official
ballots to be used in the automated election system and the
guidelines for the printing thereof, the relevant portions of which
state:
SECTION 11. Official ballot. - The Commission shall prescribe the
size and form of the official ballot which shall contain the titles of the
positions to be filled and/or the propositions to be voted upon in an
initiative, referendum or plebiscite. Under each position, the names
of candidates shall be arranged alphabetically by surname and
uniformly printed using the same type size. A fixed space where the
chairman of the Board of Election inspectors shall affix his/her
signature to authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the
election shall not be later than one hundred twenty (120) days
before the elections: Provided, That, any elective official, whether
national or local, running for any office other than the one which
he/she is holding in a permanent capacity, except for president and
vice-president, shall be deemed resigned only upon the start of the
campaign period corresponding to the position for which he/she is
running: Provided, further, That, unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the
aforesaid campaign period: Provided, finally, That, for purposes of
the May 11, 1998 elections, the deadline for filing of the certificate of
candidacy for the positions of President, Vice President, Senators
and candidates under the Party-List System as well as petitions for
registration and/or manifestation to participate in the Party-List
System shall be on February 9, 1998 while the deadline for the filing
of certificate of candidacy for other positions shall be on March 27,
1998. (Emphases ours.)

We are not convinced.

33

On 10 February 2007, Republic Act No. 936933 took effect. Section

13 of Republic Act No. 9369 amended Section 11 of Republic Act
No. 8436 and renumbered the same as the new Section 15 of
Republic Act No. 8436. The pertinent portions of Section 15 of
Republic Act No. 8436, as amended by Republic Act No. 9369, now
read:
SECTION.15. Official Ballot. - The Commission shall prescribe the
format of the electronic display and/or the size and form of the
official ballot, which shall contain the titles of the position to be filled
and/or the proposition to be voted upon in an initiative, referendum
or plebiscite. Where practicable, electronic displays must be
constructed to present the names of all candidates for the same
position in the same page or screen, otherwise, the electronic
displays must be constructed to present the entire ballot to the voter,
in a series of sequential pages, and to ensure that the voter sees all
of the ballot options on all pages before completing his or her vote
and to allow the voter to review and change all ballot choices prior to
completing and casting his or her ballot. Under each position to be
filled, the names of candidates shall be arranged alphabetically by
surname and uniformly indicated using the same type size. The
maiden or married name shall be listed in the official ballot, as
preferred by the female candidate. Under each proposition to be
vote upon, the choices should be uniformly indicated using the same
font and size.
A fixed space where the chairman of the board of election inspector
shall affix her/her signature to authenticate the official ballot shall be
provided.
For this purpose, the Commission shall set the deadline for the filing
of certificate of candidacy/petition of registration/manifestation to
participate in the election. Any person who files his certificate of
candidacy within this period shall only be considered as a candidate
at the start of the campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions applicable to
a candidate shall effect only upon 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 orcontrolled corporations, shall be considered ipso factor resigned
from his/her office and must vacate the same at the start of the day
of the filing of his/her certification of candidacy. (Emphases ours.)
In view of the third paragraph of Section 15 of Republic Act No.
8436, as amended, the Dissenting Opinion argues that Section 80 of
the Omnibus Election Code can not be applied to the present case
since, as the Court held in Lanot v. Commission on Elections,34 the
election campaign or partisan activity, which constitute the prohibited
premature campaigning, should be designed to promote the election
or defeat of a particular candidate or candidates. Under present
election laws, while a person may have filed his/her COC within the
prescribed period for doing so, said person shall not be considered a
candidate until the start of the campaign period. Thus, prior to the
start of the campaign period, there can be no election campaign or
partisan political activity designed to promote the election or defeat
of a particular candidate to public office because there is no
candidate to speak of.
According to the Dissenting Opinion, even if Peneras acts before
the start of the campaign period constitute election campaigning or
partisan political activities, these are not punishable under Section
80 of the Omnibus Election Code given that she was not yet a
candidate at that time. On the other hand, Peneras acts, if
committed within the campaign period, when she was already a
candidate, are likewise not covered by Section 80 as this provision
punishes only acts outside the campaign period.

The Dissenting Opinion ultimately concludes that because of

Section 15 of Republic Act No. 8436, as amended, the prohibited act
of premature campaigning in Section 80 of the Omnibus Election
Code, is practically impossible to commit at any time.
We disagree. Section 80 of the Omnibus Election Code remains
relevant and applicable despite Section 15 of Republic Act No. 8436,
as amended.
A close reading of the entire Republic Act No. 9369, which amended
Republic Act No. 8436, would readily reveal that that it did not
contain an express repeal of Section 80 of the Omnibus Election
Code. An express repeal is one wherein a statute declares, usually
in its repealing clause, that a particular and specific law, identified by
its number or title, is repealed.35 Absent this specific requirement, an
express repeal may not be presumed.
Although the title of Republic Act No. 9369 particularly mentioned
the amendment of Batas Pambansa Blg. 881, or the Omnibus
Election Code, to wit:
An Act Amending Republic Act No. 8436, Entitled "An Act
Authorizing the Commission on Elections to Use an Automated
Election System x x x, Amending for the Purpose Batas
Pambansa Blg. 881, As Amended x x x. (Emphasis ours.),
said title explicitly mentions, not the repeal, but the amendment of
Batas Pambansa Blg. 881. Such fact is indeed very material. Repeal
of a law means its complete abrogation by the enactment of a
subsequent statute, whereas the amendment of a statute means an
alteration in the law already existing, leaving some part of the
original still standing.36 Section 80 of the Omnibus Election Code is
not even one of the specific provisions of the said code that were
expressly amended by Republic Act No. 9369.
Additionally, Section 46,37 the repealing clause of Republic Act No.
9369, states that:
Sec. 46. Repealing Clause. All laws, presidential decrees,
executive orders, rules and regulations or parts thereof inconsistent
with the provisions of this Act are hereby repealed or modified
accordingly.
Section 46 of Republic Act No. 9369 is a general repealing clause. It
is a clause which predicates the intended repeal under the condition
that a substantial conflict must be found in existing and prior acts.
The failure to add a specific repealing clause indicates that the intent
was not to repeal any existing law, unless an irreconcilable
inconsistency and repugnancy exist in the terms of the new and old
laws. This latter situation falls under the category of an implied
repeal.38
Well-settled is the rule in statutory construction that implied repeals
are disfavored. In order to effect a repeal by implication, the later
statute must be so irreconcilably inconsistent and repugnant with the
existing law that they cannot be made to reconcile and stand
together. The clearest case possible must be made before the
inference of implied repeal may be drawn, for inconsistency is never
presumed. There must be a showing of repugnance clear and
convincing in character. The language used in the later statute must
be such as to render it irreconcilable with what had been formerly
enacted. An inconsistency that falls short of that standard does not
suffice.39
Courts of justice, when confronted with apparently conflicting
statutes, should endeavor to reconcile the same instead of declaring
outright the invalidity of one as against the other. Such alacrity

34

should be avoided. The wise policy is for the judge to harmonize

them if this is possible, bearing in mind that they are equally the
handiwork of the same legislature, and so give effect to both while at
the same time also according due respect to a coordinate
department of the government.40
To our mind, there is no absolute and irreconcilable incompatibility
between Section 15 of Republic Act No. 8436, as amended, and
Section 80 of the Omnibus Election Code, which defines the
prohibited act of premature campaigning. It is possible to harmonize
and reconcile these two provisions and, thus, give effect to both.
The following points are explanatory:
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.
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,"41 is clearly erroneous.
Second, Section 79(b) of the Omnibus Election Code defines
election campaign or partisan political activity in the following
manner:
SECTION 79. Definitions. - As used in this Code:
xxxx
(b) The term "election campaign" or "partisan political activity" refers
to an act designed to promote the election or defeat of a particular
candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees
or other groups of persons for the purpose of soliciting
votes and/or undertaking any campaign for or against a
candidate;
(2) Holding political caucuses, conferences, meetings,
rallies, parades, or other similar assemblies, for the
purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or
holding interviews for or against the election of any
candidate for public office;
(4) Publishing or distributing campaign literature or
materials designed to support or oppose the election of
any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support
for or against a candidate.
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.
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 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. Also, conversely, if said person, for any
reason, withdraws his/her COC before the campaign period, then
there is no point to view his/her acts prior to said period as acts for
the promotion of his/her election as a candidate. In the latter case,
there can be no premature campaigning as there is no candidate,
whose disqualification may be sought, to begin with.42
Third, in connection with the preceding discussion, the 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 the said proviso was it stated that campaigning before
the start of the campaign period is lawful, such that the offender may
freely carry out the same with impunity.
As previously established, a person, after filing his/her COC but prior
to his/her becoming a candidate (thus, prior to the start of the
campaign period), can already commit the acts described under
Section 79(b) of the Omnibus Election Code as election campaign or
partisan political activity. However, only after said person officially
becomes a candidate, at the beginning of the campaign period, can
said acts be given effect as premature campaigning under Section
80 of the Omnibus Election Code. Only after said person officially
becomes a candidate, at the start of the campaign period, can
his/her disqualification be sought for acts constituting premature
campaigning. Obviously, it is only at the start of the campaign
period, when the person officially becomes a candidate, that the
undue and iniquitous advantages of his/her prior acts, constituting
premature campaigning, shall accrue to his/her benefit. Compared
to the other candidates who are only about to begin their election
campaign, a candidate who had previously engaged in premature
campaigning already enjoys an unfair headstart in promoting his/her
candidacy.
As can be gleaned from the foregoing disquisition, harmony in the
provisions of Sections 80 and 79 of the Omnibus Election Code, as
well as Section 15 of Republic Act No. 8436, as amended, is not
only very possible, but in fact desirable, necessary and consistent
with the legislative intent and policy of the law.
The laudable and exemplary intention behind the prohibition against
premature campaigning, as declared in Chavez v. Commission on
Elections,43 is to level the playing field for candidates of public office,
to equalize the situation between the popular or rich candidates, on
one hand, and lesser-known or poorer candidates, on the other, by
preventing the former from enjoying undue advantage in exposure
and publicity on account of their resources and popularity. The
intention for prohibiting premature campaigning, as explained in
Chavez, could not have been significantly altered or affected by
Republic Act No. 8436, as amended by Republic Act No. 9369, the
avowed purpose of which is to carry-on the automation of the
election system. 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

35

candidates, on the other, by allowing them to campaign only within

the same limited period remains.
We cannot stress strongly enough that premature campaigning is a
pernicious act that is continuously threatening to undermine the
conduct of fair and credible elections in our country, no matter how
great or small the acts constituting the same are. 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.
Verily, the consequences provided for in Section 6844 of the Omnibus
Election Code for the commission of the prohibited act of premature
campaigning are severe: the candidate who is declared guilty of
committing the offense shall be disqualified from continuing as a
candidate, or, if he/she has been elected, from holding office. Not to
mention that said candidate also faces criminal prosecution for an
election offense under Section 262 of the same Code.
The Dissenting Opinion, therefore, should not be too quick to
pronounce the ineffectiveness or repeal of Section 80 of the
Omnibus Election Code just because of a change in the meaning of
candidate by Section 15 of Republic Act No. 8436, as amended,
primarily, for administrative purposes. An interpretation should be
avoided under which a statute or provision being construed is
defeated, or as otherwise expressed, nullified, destroyed,
emasculated, repealed, explained away, or rendered insignificant,
meaningless, inoperative, or nugatory.45 Indeed, not only will the
prohibited act of premature campaigning be officially decriminalized,
the value and significance of having a campaign period before the
conduct of elections would also be utterly negated. Any
unscrupulous individual with the deepest of campaign war chests
could then afford to spend his/her resources to promote his/her
candidacy well ahead of everyone else. Such is the very evil that the
law seeks to prevent. Our lawmakers could not have intended to
cause such an absurd situation.
The Dissenting Opinion attempts to brush aside our preceding
arguments by contending that there is no room for statutory
construction in the present case since Section 15 of Republic Act
No. 8436,46 as amended by Section 13 of Republic Act No. 9369,47 is
crystal clear in its meaning. We disagree. There would only be no
need for statutory construction if there is a provision in Republic Act
No. 8436 or Republic Act No. 9369 that explicitly states that there
shall be no more premature campaigning. But absent the same, our
position herein, as well as that of the Dissenting Opinion,
necessarily rest on our respective construction of the legal
provisions involved in this case.
Notably, while faulting us for resorting to statutory construction to
resolve the instant case, the Dissenting Opinion itself cites a rule of
statutory construction, particularly, that penal laws should be liberally
construed in favor of the offender. The Dissenting Opinion asserts
that because of the third paragraph in Section 15 of Republic Act
No. 8436, as amended, the election offense described in Section 80
of the Omnibus Election Code is practically impossible to commit at
any time and that this flaw in the law, which defines a criminal act,
must be construed in favor of Penera, the offender in the instant
case.
The application of the above rule is uncalled for. It was
acknowledged in Lanot that a disqualification case has two aspects:
one, electoral;48 the other, criminal.49 The instant case concerns only
the electoral aspect of the disqualification case. Any discussion
herein on the matter of Peneras criminal liability for premature
campaigning would be nothing more than obiter dictum. More

importantly, as heretofore already elaborated upon, Section 15 of

Republic Act No. 8436, as amended, did not expressly or even
impliedly repeal Section 80 of the Omnibus Election Code, and
these two provisions, based on legislative intent and policy, can be
harmoniously interpreted and given effect. Thus, there is no flaw
created in the law, arising from Section 15 of Republic Act No. 8436,
as amended, which needed to be construed in Peneras favor.
The Dissenting Opinion further expresses the fear that pursuant to
our "theory," all the politicians with "infomercials" prior to the filing of
their COCs would be subject to disqualification, and this would
involve practically all the prospective presidential candidates who
are now leading in the surveys.
This fear is utterly unfounded. It is the filing by the person of his/her
COC through which he/she explicitly declares his/her intention to run
as a candidate in the coming elections. It is such declaration which
would color the subsequent acts of said person to be election
campaigning or partisan political activities as described under
Section 79(b) of the Omnibus Election Code. It bears to point out
that, at this point, no politician has yet submitted his/her COC. Also,
the plain solution to this rather misplaced apprehension is for the
politicians themselves to adhere to the letter and intent of the law
and keep within the bounds of fair play in the pursuit of their
candidacies. This would mean that after filing their COCs, the
prudent and proper course for them to take is to wait for the
designated start of the campaign period before they commence their
election campaign or partisan political activities. Indeed, such is the
only way for them to avoid disqualification on the ground of
premature campaigning. It is not for us to carve out exceptions to
the law, much more to decree away the repeal thereof, in order to
accommodate any class of individuals, where no such exception or
repeal is warranted.
Lastly, as we have observed at the beginning, Peneras Petition is
essentially grounded on questions of fact. Peneras defense against
her disqualification, before the COMELEC and this Court, rests on
the arguments that she and her partymates did not actually hold a
motorcade; that their supporters spontaneously accompanied
Penera and the other candidates from her political party when they
filed their certificates of candidacy; that the alleged motorcade was
actually the dispersal of the supporters of Penera and the other
candidates from her party as said supporters were dropped off at
their respective barangays; and that Andanar was not able to
present competent, admissible, and substantial evidence to prove
that Penera committed premature campaigning. Penera herself
never raised the argument that she can no longer be disqualified for
premature campaigning under Section 80, in relation to Section 68,
of the Omnibus Election Code, since the said provisions have
already been, in the words of the Dissenting Opinion, rendered
"inapplicable," "repealed," and "done away with" by Section 15 of
Republic Act No. 8436, as amended. This legal argument was
wholly raised by the Dissenting Opinion.
As a rule, a party who deliberately adopts a certain theory upon
which the case is tried and decided by the lower court will not be
permitted to change theory on appeal. Points of law, theories,
issues, and arguments not brought to the attention of the lower court
need not be, and ordinarily will not be, considered by a reviewing
court, as these cannot be raised for the first time at such late stage.
Basic considerations of due process underlie this rule.50 If we do not
allow and consider the change in theory of a case by a party on
appeal, should we not also refrain from motu proprio adopting a
theory which none of the parties even raised before us?
Nonetheless, the questions of fact raised by Penera and questions
of law raised by the Dissenting Opinion must all be resolved against
Penera. Penera should be disqualified from holding office as Mayor

36

of Sta. Monica for having committed premature campaigning when,

right after she filed her COC, but still a day before the start of the
campaign period, she took part in a motorcade, which consisted of
two jeepneys and ten motorcycles laden with multi-colored balloons
that went around several barangays of Sta. Monica, and gave away
candies to the crowd.

Code while the Resolution2 of the COMELEC En Banc dated 2

February 2011 is being questioned for finding that respondent
Rommel Arnado y Cagoco (respondent Arnado/Arnado) is solely a
Filipino citizen qualified to run for public office despite his continued
use of a U.S. passport.
FACTS

Succession
Despite the disqualification of Penera, we cannot grant Andanars
prayer to be allowed to assume the position of Mayor of Sta.
Monica. The well-established principle is that the ineligibility of a
candidate receiving majority votes does not entitle the candidate
receiving the next highest number of votes to be declared elected. 51
In this case, the rules on succession under the Local Government
Code shall apply, to wit:

Respondent Arnado is a natural born Filipino citizen.3 However, as a

consequence of his subsequent naturalization as a citizen of the
United States of America, he lost his Filipino citizenship. Arnado
applied for repatriation under Republic Act (R.A.) No. 9225 before
the Consulate General of the Philippines in San Franciso, USA and
took the Oath of Allegiance to the Republic of the Philippines on 10
July 2008.4 On the same day an Order of Approval of his Citizenship
Retention and Re-acquisition was issued in his favor.5
The aforementioned Oath of Allegiance states:

SECTION 44. Permanent Vacancies in the Offices of the Governor,

Vice-Governor, Mayor, and Vice-Mayor. If a permanent vacancy
occurs in the office of the xxx mayor, the x x x vice-mayor concerned
shall become the x x x mayor.
xxxx
For purposes of this Chapter, a permanent vacancy arises when an
elective local official fills a higher vacant office, refuses to assume
office, fails to qualify or is removed from office, voluntarily
resigns, or is otherwise permanently incapacitated to discharge the
functions of his office. (Emphases ours.)
Considering Peneras disqualification from holding office as Mayor of
Sta. Monica, the proclaimed Vice-Mayor shall then succeed as
Mayor.
WHEREFORE, premises considered, the instant Petition for
Certiorari is hereby DISMISSED. The Resolutions dated 24 July
2007 and 30 January 2008 of the COMELEC Second Division and
en banc, respectively, in SPA No. 07-224 are hereby AFFIRMED. In
view of the disqualification of petitioner Rosalinda A. Penera from
running for the office of Mayor of Sta. Monica, Surigao del Norte,
and the resulting permanent vacancy therein, it is hereby
DECLARED that the proclaimed Vice-Mayor is the rightful successor
to said office. The Temporary Restraining Order issued on 4 March
2008 is hereby ORDERED lifted. Costs against the petitioner.

I, Rommel Cagoco Arnado, solemnly swear that I will support and

defend the Constitution of the Republic of the Philippines and obey
the laws and legal orders promulgated by the duly constituted
authorities of the Philippines and I hereby declare that I recognize
and accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I impose this
obligation upon myself voluntarily without mental reservation or
purpose of evasion.6
On 3 April 2009 Arnado again took his Oath of Allegiance to the
Republic and executed an Affidavit of Renunciation of his foreign
citizenship, which states:
I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and
perpetually renounce all allegiance and fidelity to the UNITED
STATES OF AMERICA of which I am a citizen, and I divest myself of
full employment of all civil and political rights and privileges of the
United States of America.
I solemnly swear that all the foregoing statement is true and correct
to the best of my knowledge and belief.7
On 30 November 2009, Arnado filed his Certificate of Candidacy for
Mayor of Kauswagan, Lanao del Norte, which contains, among
others, the following statements:
I am a natural born Filipino citizen / naturalized Filipino citizen.

SO ORDERED.
I am not a permanent resident of, or immigrant to, a foreign country.
G.R. No. 195649

April 16, 2013

I am eligible for the office I seek to be elected to.

CASAN MACODE MAQUILING, Petitioner,

vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO,
LINOG G. BALUA, Respondents.

I will support and defend the Constitution of the Republic of the

Philippines and will maintain true faith and allegiance thereto. I will
obey the laws, legal orders and decrees promulgated by the duly
constituted authorities.

DECISION
I impose this obligation upon myself voluntarily without mental
reservation or purpose of evasion.8

SERENO, CJ.:
THE CASE
This is a Petition for Certiorari ender Rule 64 in conjunction with
Rule 65 of the Rules of Court to review the Resolutions of the
Commission on Elections (COMELEC). The Resolution1 in SPA No.
10-1 09(DC) of the COMELEC First Division dated 5 October 201 0
is being assailed for applying Section 44 of the Local Government

On 28 April 2010, respondent Linog C. Balua (Balua), another

mayoralty candidate, filed a petition to disqualify Arnado and/or to
cancel his certificate of candidacy for municipal mayor of
Kauswagan, Lanao del Norte in connection with the 10 May 2010
local and national elections.9

37

Respondent Balua contended that Arnado is not a resident of

Kauswagan, Lanao del Norte and that he is a foreigner, attaching
thereto a certification issued by the Bureau of Immigration dated 23
April 2010 indicating the nationality of Arnado as "USAAmerican."10To further bolster his claim of Arnados US citizenship,
Balua presented in his Memorandum a computer-generated travel
record11 dated 03 December 2009 indicating that Arnado has been
using his US Passport No. 057782700 in entering and departing the
Philippines. The said record shows that Arnado left the country on
14 April 2009 and returned on 25 June 2009, and again departed on
29 July 2009, arriving back in the Philippines on 24 November 2009.
Balua likewise presented a certification from the Bureau of
Immigration dated 23 April 2010, certifying that the name "Arnado,
Rommel Cagoco" appears in the available Computer
Database/Passenger manifest/IBM listing on file as of 21 April 2010,
with the following pertinent travel records:
DATE OF Arrival : 01/12/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700

5. Voter Certification issued by the Election Officer of

Kauswagan certifying that Arnado has been a registered
voter of Kauswagan since 03 April 2009.
THE RULING OF THE COMELEC FIRST DIVISION
Instead of treating the Petition as an action for the cancellation of a
certificate of candidacy based on misrepresentation,15 the
COMELEC First Division considered it as one for disqualification.
Baluas contention that Arnado is a resident of the United States was
dismissed upon the finding that "Balua failed to present any
evidence to support his contention,"16 whereas the First Division still
could "not conclude that Arnado failed to meet the one-year
residency requirement under the Local Government Code."17
In the matter of the issue of citizenship, however, the First Division
disagreed with Arnados claim that he is a Filipino citizen.18
We find that although Arnado appears to have substantially
complied with the requirements of R.A. No. 9225, Arnados act of
consistently using his US passport after renouncing his US
citizenship on 03 April 2009 effectively negated his Affidavit of
Renunciation.

DATE OF Arrival : 03/23/2010

NATIONALITY : USA-AMERICAN
PASSPORT : 05778270012
On 30 April 2010, the COMELEC (First Division) issued an
Order13 requiring the respondent to personally file his answer and
memorandum within three (3) days from receipt thereof.
After Arnado failed to answer the petition, Balua moved to declare
him in default and to present evidence ex-parte.
Neither motion was acted upon, having been overtaken by the 2010
elections where Arnado garnered the highest number of votes and
was subsequently proclaimed as the winning candidate for Mayor of
Kauswagan, Lanao del Norte.
It was only after his proclamation that Arnado filed his verified
answer, submitting the following documents as evidence:14
1. Affidavit of Renunciation and Oath of Allegiance to the
Republic of the Philippines dated 03 April 2009;
2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno,
Virginia Branzuela, Leoncio Daligdig, and Jessy Corpin, all
neighbors of Arnado, attesting that Arnado is a long-time
resident of Kauswagan and that he has been
conspicuously and continuously residing in his familys
ancestral house in Kauswagan;
3. Certification from the Punong Barangay of Poblacion,
Kauswagan, Lanao del Norte dated 03 June 2010 stating
that Arnado is a bona fide resident of his barangay and
that Arnado went to the United States in 1985 to work and
returned to the Philippines in 2009;
4. Certification dated 31 May 2010 from the Municipal
Local Government Operations Office of Kauswagan stating
that Dr. Maximo P. Arnado, Sr. served as Mayor of
Kauswagan, from January 1964 to June 1974 and from 15
February 1979 to 15 April 1986; and

xxxx
Arnados continued use of his US passport is a strong indication that
Arnado had no real intention to renounce his US citizenship and that
he only executed an Affidavit of Renunciation to enable him to run
for office. We cannot turn a blind eye to the glaring inconsistency
between Arnados unexplained use of a US passport six times and
his claim that he re-acquired his Philippine citizenship and
renounced his US citizenship. As noted by the Supreme Court in the
Yu case, "a passport is defined as an official document of identity
and nationality issued to a person intending to travel or sojourn in
foreign countries." Surely, one who truly divested himself of US
citizenship would not continue to avail of privileges reserved solely
for US nationals.19
The dispositive portion of the Resolution rendered by the COMELEC
First Division reads:
WHEREFORE, in view of the foregoing, the petition for
disqualification and/or to cancel the certificate of candidacy of
Rommel C. Arnado is hereby GRANTED. Rommel C. Arnados
proclamation as the winning candidate for Municipal Mayor of
Kauswagan, Lanao del Nore is hereby ANNULLED. Let the order of
succession under Section 44 of the Local Government Code of 1991
take effect.20
The Motion for Reconsideration and
the Motion for Intervention
Arnado sought reconsideration of the resolution before the
COMELEC En Banc on the ground that "the evidence is insufficient
to justify the Resolution and that the said Resolution is contrary to
law."21 He raised the following contentions:22
1. The finding that he is not a Filipino citizen is not
supported by the evidence consisting of his Oath of
Allegiance and the Affidavit of Renunciation, which show
that he has substantially complied with the requirements of
R.A. No. 9225;

38

2. The use of his US passport subsequent to his

renunciation of his American citizenship is not tantamount
to a repudiation of his Filipino citizenship, as he did not
perform any act to swear allegiance to a country other than
the Philippines;
3. He used his US passport only because he was not
informed of the issuance of his Philippine passport, and
that he used his Philippine passport after he obtained it;
4. Baluas petition to cancel the certificate of candidacy of
Arnado was filed out of time, and the First Divisions
treatment of the petition as one for disqualification
constitutes grave abuse of discretion amounting to excess
of jurisdiction;23
5. He is undoubtedly the peoples choice as indicated by
his winning the elections;
6. His proclamation as the winning candidate ousted the
COMELEC from jurisdiction over the case; and
7. The proper remedy to question his citizenship is through
a petition for quo warranto, which should have been filed
within ten days from his proclamation.
Petitioner Casan Macode Maquiling (Maquiling), another candidate
for mayor of Kauswagan, and who garnered the second highest
number of votes in the 2010 elections, intervened in the case and
filed before the COMELEC En Banc a Motion for Reconsideration
together with an Opposition to Arnados Amended Motion for
Reconsideration. Maquiling argued that while the First Division
correctly disqualified Arnado, the order of succession under Section
44 of the Local Government Code is not applicable in this case.
Consequently, he claimed that the cancellation of Arnados
candidacy and the nullification of his proclamation, Maquiling, as the
legitimate candidate who obtained the highest number of lawful
votes, should be proclaimed as the winner.
Maquiling simultaneously filed his Memorandum with his Motion for
Intervention and his Motion for Reconsideration. Arnado opposed all
motions filed by Maquiling, claiming that intervention is prohibited
after a decision has already been rendered, and that as a secondplacer, Maquiling undoubtedly lost the elections and thus does not
stand to be prejudiced or benefitted by the final adjudication of the
case.
RULING OF THE COMELEC EN BANC
In its Resolution of 02 February 2011, the COMELEC En Banc held
that under Section 6 of Republic Act No. 6646, the Commission
"shall continue with the trial and hearing of the action, inquiry or
protest even after the proclamation of the candidate whose
qualifications for office is questioned."
As to Maquilings intervention, the COMELEC En Banc also cited
Section 6 of R.A. No. 6646 which allows intervention in proceedings
for disqualification even after elections if no final judgment has been
rendered, but went on further to say that Maquiling, as the second
placer, would not be prejudiced by the outcome of the case as it
agrees with the dispositive portion of the Resolution of the First
Division allowing the order of succession under Section 44 of the
Local Government Code to take effect.
The COMELEC En Banc agreed with the treatment by the First
Division of the petition as one for disqualification, and ruled that the
petition was filed well within the period prescribed by law,24 having

been filed on 28 April 2010, which is not later than 11 May 2010, the
date of proclamation.
However, the COMELEC En Banc reversed and set aside the ruling
of the First Division and granted Arnados Motion for
Reconsideration, on the following premises:
First:
By renouncing his US citizenship as imposed by R.A. No. 9225, the
respondent embraced his Philippine citizenship as though he never
became a citizen of another country. It was at that time, April 3,
2009, that the respondent became a pure Philippine Citizen again.
xxxx
The use of a US passport does not operate to revert back his
status as a dual citizen prior to his renunciation as there is no law
saying such. More succinctly, the use of a US passport does not
operate to "un-renounce" what he has earlier on renounced. The
First Divisions reliance in the case of In Re: Petition for Habeas
Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The
petitioner in the said case is a naturalized citizen who, after taking
his oath as a naturalized Filipino, applied for the renewal of his
Portuguese passport. Strict policy is maintained in the conduct of
citizens who are not natural born, who acquire their citizenship by
choice, thus discarding their original citizenship. The Philippine State
expects strict conduct of allegiance to those who choose to be its
citizens. In the present case, respondent is not a naturalized citizen
but a natural born citizen who chose greener pastures by working
abroad and then decided to repatriate to supposedly help in the
progress of Kauswagan. He did not apply for a US passport after his
renunciation. Thus the mentioned case is not on all fours with the
case at bar.
xxxx
The respondent presented a plausible explanation as to the use of
his US passport. Although he applied for a Philippine passport, the
passport was only issued on June 18, 2009. However, he was not
notified of the issuance of his Philippine passport so that he was
actually able to get it about three (3) months later. Yet as soon as he
was in possession of his Philippine passport, the respondent already
used the same in his subsequent travels abroad. This fact is proven
by the respondents submission of a certified true copy of his
passport showing that he used the same for his travels on the
following dates: January 31, 2010, April 16, 2010, May 20, 2010,
January 12, 2010, March 31, 2010 and June 4, 2010. This then
shows that the use of the US passport was because to his
knowledge, his Philippine passport was not yet issued to him for his
use. As probably pressing needs might be undertaken, the
respondent used whatever is within his control during that time. 25
In his Separate Concurring Opinion, COMELEC Chairman Sixto
Brillantes cited that the use of foreign passport is not one of the
grounds provided for under Section 1 of Commonwealth Act No. 63
through which Philippine citizenship may be lost.
"The application of the more assimilative principle of continuity of
citizenship is more appropriate in this case. Under said principle,
once a person becomes a citizen, either by birth or naturalization, it
is assumed that he desires to continue to be a citizen, and this
assumption stands until he voluntarily denationalizes or expatriates
himself. Thus, in the instant case respondent after reacquiring his
Philippine citizenship should be presumed to have remained a
Filipino despite his use of his American passport in the absence of

39

clear, unequivocal and competent proof of expatriation. Accordingly,

all doubts should be resolved in favor of retention of citizenship." 26
On the other hand, Commissioner Rene V. Sarmiento dissented,
thus:
Respondent evidently failed to prove that he truly and
wholeheartedly abandoned his allegiance to the United States. The
latters continued use of his US passport and enjoyment of all the
privileges of a US citizen despite his previous renunciation of the
afore-mentioned citizenship runs contrary to his declaration that he
chose to retain only his Philippine citizenship. Respondents
submission with the twin requirements was obviously only for the
purpose of complying with the requirements for running for the
mayoralty post in connection with the May 10, 2010 Automated
National and Local Elections.
Qualifications for elective office, such as citizenship, are continuing
requirements; once any of them is lost during his incumbency, title to
the office itself is deemed forfeited. If a candidate is not a citizen at
the time he ran for office or if he lost his citizenship after his election
to office, he is disqualified to serve as such. Neither does the fact
that respondent obtained the plurality of votes for the mayoralty post
cure the latters failure to comply with the qualification requirements
regarding his citizenship.
Since a disqualified candidate is no candidate at all in the eyes of
the law, his having received the highest number of votes does not
validate his election. It has been held that where a petition for
disqualification was filed before election against a candidate but was
adversely resolved against him after election, his having obtained
the highest number of votes did not make his election valid. His
ouster from office does not violate the principle of vox populi
suprema est lex because the application of the constitutional and
statutory provisions on disqualification is not a matter of popularity.
To apply it is to breath[e] life to the sovereign will of the people who
expressed it when they ratified the Constitution and when they
elected their representatives who enacted the law.27
THE PETITION BEFORE THE COURT
Maquiling filed the instant petition questioning the propriety of
declaring Arnado qualified to run for public office despite his
continued use of a US passport, and praying that Maquiling be
proclaimed as the winner in the 2010 mayoralty race in Kauswagan,
Lanao del Norte.
Ascribing both grave abuse of discretion and reversible error on the
part of the COMELEC En Banc for ruling that Arnado is a Filipino
citizen despite his continued use of a US passport, Maquiling now
seeks to reverse the finding of the COMELEC En Banc that Arnado
is qualified to run for public office.
Corollary to his plea to reverse the ruling of the COMELEC En Banc
or to affirm the First Divisions disqualification of Arnado, Maquiling
also seeks the review of the applicability of Section 44 of the Local
Government Code, claiming that the COMELEC committed
reversible error in ruling that "the succession of the vice mayor in
case the respondent is disqualified is in order."
There are three questions posed by the parties before this Court
which will be addressed seriatim as the subsequent questions hinge
on the result of the first.
The first question is whether or not intervention is allowed in a
disqualification case.

The second question is whether or not the use of a foreign passport

after renouncing foreign citizenship amounts to undoing a
renunciation earlier made.
A better framing of the question though should be whether or not the
use of a foreign passport after renouncing foreign citizenship affects
ones qualifications to run for public office.
The third question is whether or not the rule on succession in the
Local Government Code is applicable to this case.
OUR RULING
Intervention of a rival candidate in a
disqualification case is proper when
there has not yet been any
proclamation of the winner.
Petitioner Casan Macode Maquiling intervened at the stage when
respondent Arnado filed a Motion for Reconsideration of the First
Division Resolution before the COMELEC En Banc. As the
candidate who garnered the second highest number of votes,
Maquiling contends that he has an interest in the disqualification
case filed against Arnado, considering that in the event the latter is
disqualified, the votes cast for him should be considered stray and
the second-placer should be proclaimed as the winner in the
elections.
It must be emphasized that while the original petition before the
COMELEC is one for cancellation of the certificate of candidacy
and / or disqualification, the COMELEC First Division and the
COMELEC En Banc correctly treated the petition as one for
disqualification.
The effect of a disqualification case is enunciated in Section 6 of
R.A. No. 6646:
Sec. 6. Effect of Disqualification Case. - Any candidate who has
been declared by final judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be counted. If for any reason
a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number
of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
Mercado v. Manzano28
clarified the right of intervention in a disqualification case. In that
case, the Court said:
That petitioner had a right to intervene at that stage of the
proceedings for the disqualification against private respondent is
clear from Section 6 of R.A. No. 6646, otherwise known as the
Electoral Reforms Law of 1987, which provides: Any candidate who
has been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of guilt is
strong. Under this provision, intervention may be allowed in

40

proceedings for disqualification even after election if there has yet

been no final judgment rendered.29
Clearly then, Maquiling has the right to intervene in the case. The
fact that the COMELEC En Banc has already ruled that Maquiling
has not shown that the requisites for the exemption to the secondplacer rule set forth in Sinsuat v. COMELEC30 are present and
therefore would not be prejudiced by the outcome of the case, does
not deprive Maquiling of the right to elevate the matter before this
Court.
Arnados claim that the main case has attained finality as the original
petitioner and respondents therein have not appealed the decision
of the COMELEC En Banc, cannot be sustained. The elevation of
the case by the intervenor prevents it from attaining finality. It is only
after this Court has ruled upon the issues raised in this instant
petition that the disqualification case originally filed by Balua against
Arnado will attain finality.
The use of foreign passport after renouncing ones foreign
citizenship is a positive and voluntary act of representation as
to ones nationality and citizenship; it does not divest Filipino
citizenship regained by repatriation but it recants the Oath of
Renunciation required to qualify one to run for an elective
position.
Section 5(2) of The Citizenship Retention and Re-acquisition Act of
2003 provides:
Those who retain or re-acquire Philippine citizenship under this Act
shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines
and the following conditions:

By renouncing his foreign citizenship, he was deemed to be solely a

Filipino citizen, regardless of the effect of such renunciation under
the laws of the foreign country.32
However, this legal presumption does not operate permanently and
is open to attack when, after renouncing the foreign citizenship, the
citizen performs positive acts showing his continued possession of a
foreign citizenship.33
Arnado himself subjected the issue of his citizenship to attack when,
after renouncing his foreign citizenship, he continued to use his US
passport to travel in and out of the country before filing his certificate
of candidacy on 30 November 2009. The pivotal question to
determine is whether he was solely and exclusively a Filipino citizen
at the time he filed his certificate of candidacy, thereby rendering
him eligible to run for public office.
Between 03 April 2009, the date he renounced his foreign
citizenship, and 30 November 2009, the date he filed his COC, he
used his US passport four times, actions that run counter to the
affidavit of renunciation he had earlier executed. By using his foreign
passport, Arnado positively and voluntarily represented himself as
an American, in effect declaring before immigration authorities of
both countries that he is an American citizen, with all attendant rights
and privileges granted by the United States of America.
The renunciation of foreign citizenship is not a hollow oath that can
simply be professed at any time, only to be violated the next day. It
requires an absolute and perpetual renunciation of the foreign
citizenship and a full divestment of all civil and political rights
granted by the foreign country which granted the citizenship.
Mercado v. Manzano34 already hinted at this situation when the
Court declared:

xxxx
(2)Those seeking elective public in the Philippines shall meet the
qualification for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of
any and all foreign before any public officer authorized to administer
an oath.
x x x31
Rommel Arnado took all the necessary steps to qualify to run for a
public office. He took the Oath of Allegiance and renounced his
foreign citizenship. There is no question that after performing these
twin requirements required under Section 5(2) of R.A. No. 9225 or
the Citizenship Retention and Re-acquisition Act of 2003, he
became eligible to run for public office.
Indeed, Arnado took the Oath of Allegiance not just only once but
twice: first, on 10 July 2008 when he applied for repatriation before
the Consulate General of the Philippines in San Francisco, USA,
and again on 03 April 2009 simultaneous with the execution of his
Affidavit of Renunciation. By taking the Oath of Allegiance to the
Republic, Arnado re-acquired his Philippine citizenship. At the time,
however, he likewise possessed American citizenship. Arnado had
therefore become a dual citizen.
After reacquiring his Philippine citizenship, Arnado renounced his
American citizenship by executing an Affidavit of Renunciation, thus
completing the requirements for eligibility to run for public office.

His declarations will be taken upon the faith that he will fulfill his
undertaking made under oath. Should he betray that trust, there are
enough sanctions for declaring the loss of his Philippine citizenship
through expatriation in appropriate proceedings. In Yu v. DefensorSantiago, we sustained the denial of entry into the country of
petitioner on the ground that, after taking his oath as a naturalized
citizen, he applied for the renewal of his Portuguese passport and
declared in commercial documents executed abroad that he was a
Portuguese national. A similar sanction can be taken against anyone
who, in electing Philippine citizenship, renounces his foreign
nationality, but subsequently does some act constituting
renunciation of his Philippine citizenship.
While the act of using a foreign passport is not one of the acts
enumerated in Commonwealth Act No. 63 constituting renunciation
and loss of Philippine citizenship,35 it is nevertheless an act which
repudiates the very oath of renunciation required for a former
Filipino citizen who is also a citizen of another country to be qualified
to run for a local elective position.
When Arnado used his US passport on 14 April 2009, or just eleven
days after he renounced his American citizenship, he recanted his
Oath of Renunciation36 that he "absolutely and perpetually
renounce(s) all allegiance and fidelity to the UNITED STATES OF
AMERICA"37 and that he "divest(s) himself of full employment of all
civil and political rights and privileges of the United States of
America."38
We agree with the COMELEC En Banc that such act of using a
foreign passport does not divest Arnado of his Filipino citizenship,
which he acquired by repatriation. However, by representing himself
as an American citizen, Arnado voluntarily and effectively reverted to

41

his earlier status as a dual citizen. Such reversion was not

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

The COMELEC En Banc differentiated Arnado from Willy Yu, the

Portuguese national who sought naturalization as a Filipino citizen
and later applied for the renewal of his Portuguese passport. That
Arnado did not apply for a US passport after his renunciation does
not make his use of a US passport less of an act that violated the
Oath of Renunciation he took. It was still a positive act of
representation as a US citizen before the immigration officials of this
country.
The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon
as he was in possession of his Philippine passport, the respondent
already used the same in his subsequent travels abroad."44 We
cannot agree with the COMELEC. Three months from June is
September. If indeed, Arnado used his Philippine passport as soon
as he was in possession of it, he would not have used his US
passport on 24 November 2009.
Besides, Arnados subsequent use of his Philippine passport does
not correct the fact that after he renounced his foreign citizenship
and prior to filing his certificate of candidacy, he used his US
passport. In the same way that the use of his foreign passport does
not undo his Oath of Renunciation, his subsequent use of his
Philippine passport does not undo his earlier use of his US passport.
Citizenship is not a matter of convenience. It is a badge of identity
that comes with attendant civil and political rights accorded by the
state to its citizens. It likewise demands the concomitant duty to
maintain allegiance to ones flag and country. While those who
acquire dual citizenship by choice are afforded the right of suffrage,
those who seek election or appointment to public office are required
to renounce their foreign citizenship to be deserving of the public
trust. Holding public office demands full and undivided allegiance to
the Republic and to no other.
We therefore hold that Arnado, by using his US passport after
renouncing his American citizenship, has recanted the same Oath of
Renunciation he took. Section 40(d) of the Local Government Code
applies to his situation. He is disqualified not only from holding the
public office but even from becoming a candidate in the May 2010
elections.
We now resolve the next issue.
Resolving the third issue necessitates revisiting Topacio v.
Paredes45 which is the jurisprudential spring of the principle that a
second-placer cannot be proclaimed as the winner in an election
contest. This doctrine must be re-examined and its soundness once
again put to the test to address the ever-recurring issue that a
second-placer who loses to an ineligible candidate cannot be
proclaimed as the winner in the elections.
The Facts of the case are as follows:
On June 4, 1912, a general election was held in the town of Imus,
Province of Cavite, to fill the office of municipal president. The
petitioner, Felipe Topacio, and the respondent, Maximo Abad, were
opposing candidates for that office. Topacio received 430 votes, and
Abad 281. Abad contested the election upon the sole ground that
Topacio was ineligible in that he was reelected the second time to
the office of the municipal president on June 4, 1912, without the
four years required by Act No. 2045 having intervened.46
Abad thus questioned the eligibility of To p a c i o on the basis of a
statutory prohibition for seeking a second re-election absent the four
year interruption.

42

The often-quoted phrase in Topacio v. Paredes is that "the wreath of

victory cannot be transferred from an ineligible candidate to any
other candidate when the sole question is the eligibility of the one
receiving a plurality of the legally cast ballots."47
This phrase is not even the ratio decidendi; it is a mere obiter
dictum. The Court was comparing "the effect of a decision that a
candidate is not entitled to the office because of fraud or
irregularities in the elections x x x with that produced by declaring a
person ineligible to hold such an office."
The complete sentence where the phrase is found is part of a
comparison and contrast between the two situations, thus:
Again, the effect of a decision that a candidate is not entitled to the
office because of fraud or irregularities in the elections is quite
different from that produced by declaring a person ineligible to hold
such an office. In the former case the court, after an examination of
the ballots may find that some other person than the candidate
declared to have received a plurality by the board of canvassers
actually received the greater number of votes, in which case the
court issues its mandamus to the board of canvassers to correct the
returns accordingly; or it may find that the manner of holding the
election and the returns are so tainted with fraud or illegality that it
cannot be determined who received a plurality of the legally cast
ballots. In the latter case, no question as to the correctness of the
returns or the manner of casting and counting the ballots is before
the deciding power, and generally the only result can be that the
election fails entirely. In the former, we have a contest in the strict
sense of the word, because of the opposing parties are striving for
supremacy. If it be found that the successful candidate (according to
the board of canvassers) obtained a plurality in an illegal manner,
and that another candidate was the real victor, the former must retire
in favor of the latter. In the other case, there is not, strictly speaking,
a contest, as the wreath of victory cannot be transferred from an
ineligible candidate to any other candidate when the sole question is
the eligibility of the one receiving a plurality of the legally cast
ballots. In the one case the question is as to who received a plurality
of the legally cast ballots; in the other, the question is confined to the
personal character and circumstances of a single
individual.48 (Emphasis supplied)
Note that the sentence where the phrase is found starts with "In the
other case, there is not, strictly speaking, a contest" in contrast to
the earlier statement, "In the former, we have a contest in the strict
sense of the word, because of the opposing parties are striving for
supremacy."
The Court in Topacio v. Paredes cannot be said to have held that
"the wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast ballots."
A proper reading of the case reveals that the ruling therein is that
since the Court of First Instance is without jurisdiction to try a
disqualification case based on the eligibility of the person who
obtained the highest number of votes in the election, its jurisdiction
being confined "to determine which of the contestants has been duly
elected" the judge exceeded his jurisdiction when he "declared that
no one had been legally elected president of the municipality of Imus
at the general election held in that town on 4 June 1912" where "the
only question raised was whether or not Topacio was eligible to be
elected and to hold the office of municipal president."
The Court did not rule that Topacio was disqualified and that Abad
as the second placer cannot be proclaimed in his stead. The Court
therein ruled:

For the foregoing reasons, we are of the opinion and so hold that the
respondent judge exceeded his jurisdiction in declaring in those
proceedings that no one was elected municipal president of the
municipality of Imus at the last general election; and that said order
and all subsequent proceedings based thereon are null and void and
of no effect; and, although this decision is rendered on respondents'
answer to the order to show cause, unless respondents raised some
new and additional issues, let judgment be entered accordingly in 5
days, without costs. So ordered.49
On closer scrutiny, the phrase relied upon by a host of decisions
does not even have a legal basis to stand on. It was a mere
pronouncement of the Court comparing one process with another
and explaining the effects thereof. As an independent statement, it is
even illogical.
Let us examine the statement:
"x x x the wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast ballots."
What prevents the transfer of the wreath of victory from the ineligible
candidate to another candidate?
When the issue being decided upon by the Court is the eligibility of
the one receiving a plurality of the legally cast ballots and ineligibility
is thereafter established, what stops the Court from adjudging
another eligible candidate who received the next highest number of
votes as the winner and bestowing upon him that "wreath?"
An ineligible candidate who receives the highest number of votes is
a wrongful winner. By express legal mandate, he could not even
have been a candidate in the first place, but by virtue of the lack of
material time or any other intervening circumstances, his ineligibility
might not have been passed upon prior to election date.
Consequently, he may have had the opportunity to hold himself out
to the electorate as a legitimate and duly qualified candidate.
However, notwithstanding the outcome of the elections, his
ineligibility as a candidate remains unchanged. Ineligibility does not
only pertain to his qualifications as a candidate but necessarily
affects his right to hold public office. The number of ballots cast in
his favor cannot cure the defect of failure to qualify with the
substantive legal requirements of eligibility to run for public office.
The popular vote does not cure the
ineligibility of a candidate.
The ballot cannot override the constitutional and statutory
requirements for qualifications and disqualifications of candidates.
When the law requires certain qualifications to be possessed or that
certain disqualifications be not possessed by persons desiring to
serve as elective public officials, those qualifications must be met
before one even becomes a candidate. When a person who is not
qualified is voted for and eventually garners the highest number of
votes, even the will of the electorate expressed through the ballot
cannot cure the defect in the qualifications of the candidate. To rule
otherwise is to trample upon and rent asunder the very law that sets
forth the qualifications and disqualifications of candidates. We might
as well write off our election laws if the voice of the electorate is the
sole determinant of who should be proclaimed worthy to occupy
elective positions in our republic.
This has been, in fact, already laid down by the Court in Frivaldo v.
COMELEC50 when we pronounced:

43

x x x. The fact that he was elected by the people of Sorsogon does

not excuse this patent violation of the salutary rule limiting public
office and employment only to the citizens of this country. The
qualifications prescribed for elective office cannot be erased by the
electorate alone.
The will of the people as expressed through the ballot cannot cure
the vice of ineligibility, especially if they mistakenly believed, as in
this case, that the candidate was qualified. Obviously, this rule
requires strict application when the deficiency is lack of citizenship. If
a person seeks to serve in the Republic of the Philippines, he must
owe his total loyalty to this country only, abjuring and renouncing all
fealty and fidelity to any other state.51(Emphasis supplied)
This issue has also been jurisprudentially clarified in Velasco v.
COMELEC52 where the Court ruled that the ruling in Quizon and
Saya-ang cannot be interpreted without qualifications lest "Election
victory x x x becomes a magic formula to bypass election eligibility
requirements."53
We have ruled in the past that a candidates victory in the election
may be considered a sufficient basis to rule in favor of the candidate
sought to be disqualified if the main issue involves defects in the
candidates certificate of candidacy. We said that while provisions
relating to certificates of candidacy are mandatory in terms, it is an
established rule of interpretation as regards election laws, that
mandatory provisions requiring certain steps before elections will be
construed as directory after the elections, to give effect to the will of
the people. We so ruled in Quizon v. COMELEC and Saya-ang v.
COMELEC:
The present case perhaps presents the proper time and opportunity
to fine-tune our above ruling. We say this with the realization that a
blanket and unqualified reading and application of this ruling can be
fraught with dangerous significance for the rule of law and the
integrity of our elections. For one, such blanket/unqualified reading
may provide a way around the law that effectively negates election
requirements aimed at providing the electorate with the basic
information to make an informed choice about a candidates
eligibility and fitness for office.
The first requirement that may fall when an unqualified reading is
made is Section 39 of the LGC which specifies the basic
qualifications of local government officials. Equally susceptive of
being rendered toothless is Section 74 of the OEC that sets out what
should be stated in a COC. Section 78 may likewise be emasculated
as mere delay in the resolution of the petition to cancel or deny due
course to a COC can render a Section 78 petition useless if a
candidate with false COC data wins. To state the obvious,
candidates may risk falsifying their COC qualifications if they know
that an election victory will cure any defect that their COCs may
have. Election victory then becomes a magic formula to bypass
election eligibility requirements. (Citations omitted)
What will stop an otherwise disqualified individual from filing a
seemingly valid COC, concealing any disqualification, and
employing every strategy to delay any disqualification case filed
against him so he can submit himself to the electorate and win, if
winning the election will guarantee a disregard of constitutional and
statutory provisions on qualifications and disqualifications of
candidates?
It is imperative to safeguard the expression of the sovereign voice
through the ballot by ensuring that its exercise respects the rule of
law. To allow the sovereign voice spoken through the ballot to trump
constitutional and statutory provisions on qualifications and
disqualifications of candidates is not democracy or republicanism. It
is electoral anarchy. When set rules are disregarded and only the

electorates voice spoken through the ballot is made to matter in the

end, it precisely serves as an open invitation for electoral anarchy to
set in.1wphi1
Maquiling is not a second-placer as
he obtained the highest number of
votes from among the qualified
candidates.
With Arnados disqualification, Maquiling then becomes the winner in
the election as he obtained the highest number of votes from among
the qualified candidates.
We have ruled in the recent cases of Aratea v. COMELEC54 and
Jalosjos v. COMELEC55 that a void COC cannot produce any legal
effect.
Thus, the votes cast in favor of the ineligible candidate are not
considered at all in determining the winner of an election.
Even when the votes for the ineligible candidate are disregarded,
the will of the electorate is still respected, and even more so. The
votes cast in favor of an ineligible candidate do not constitute the
sole and total expression of the sovereign voice. The votes cast in
favor of eligible and legitimate candidates form part of that voice and
must also be respected.
As in any contest, elections are governed by rules that determine
the qualifications and disqualifications of those who are allowed to
participate as players. When there are participants who turn out to
be ineligible, their victory is voided and the laurel is awarded to the
next in rank who does not possess any of the disqualifications nor
lacks any of the qualifications set in the rules to be eligible as
candidates.
There is no need to apply the rule cited in Labo v. COMELEC56 that
when the voters are well aware within the realm of notoriety of a
candidates disqualification and still cast their votes in favor said
candidate, then the eligible candidate obtaining the next higher
number of votes may be deemed elected. That rule is also a mere
obiter that further complicated the rules affecting qualified
candidates who placed second to ineligible ones.
The electorates awareness of the candidates disqualification is not
a prerequisite for the disqualification to attach to the candidate. The
very existence of a disqualifying circumstance makes the candidate
ineligible. Knowledge by the electorate of a candidates
disqualification is not necessary before a qualified candidate who
placed second to a disqualified one can be proclaimed as the
winner. The second-placer in the vote count is actually the firstplacer among the qualified candidates.
That the disqualified candidate has already been proclaimed and
has assumed office is of no moment. The subsequent
disqualification based on a substantive ground that existed prior to
the filing of the certificate of candidacy voids not only the COC but
also the proclamation.
Section 6 of R.A. No. 6646 provides:
Section 6. Effect of Disqualification Case. - Any candidate who has
been declared by final judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be counted. If for any reason
a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number
of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry, or protest and, upon

44

motion of the complainant or any intervenor, may during the

pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
There was no chance for Arnados proclamation to be suspended
under this rule because Arnado failed to file his answer to the
petition seeking his disqualification. Arnado only filed his Answer on
15 June 2010, long after the elections and after he was already
proclaimed as the winner.
The disqualifying circumstance surrounding Arnados candidacy
involves his citizenship. It does not involve the commission of
election offenses as provided for in the first sentence of Section 68
of the Omnibus Election Code, the effect of which is to disqualify the
individual from continuing as a candidate, or if he has already been
elected, from holding the office.
The disqualifying circumstance affecting Arnado is his citizenship. As
earlier discussed, Arnado was both a Filipino and an American
citizen when he filed his certificate of candidacy. He was a dual
citizen disqualified to run for public office based on Section 40(d) of
the Local Government Code.
Section 40 starts with the statement "The following persons are
disqualified from running for any elective local position." The
prohibition serves as a bar against the individuals who fall under any
of the enumeration from participating as candidates in the election.
With Arnado being barred from even becoming a candidate, his
certificate of candidacy is thus rendered void from the beginning. It
could not have produced any other legal effect except that Arnado
rendered it impossible to effect his disqualification prior to the
elections because he filed his answer to the petition when the
elections were conducted already and he was already proclaimed
the winner.
To hold that such proclamation is valid is to negate the prohibitory
character of the disqualification which Arnado possessed even prior
to the filing of the certificate of candidacy. The affirmation of
Arnado's disqualification, although made long after the elections,
reaches back to the filing of the certificate of candidacy. Arnado is
declared to be not a candidate at all in the May 201 0 elections.
Arnado being a non-candidate, the votes cast in his favor should not
have been counted. This leaves Maquiling as the qualified candidate
who obtained the highest number of votes. Therefore, the rule on
succession under the Local Government Code will not apply.
WHEREFORE, premises considered, the Petition is GRANTED. The
Resolution of the COMELEC En Bane dated 2 February 2011 is
hereby ANNULLED and SET ASIDE. Respondent ROMMEL
ARNADO y CAGOCO is disqualified from running for any local
elective position. CASAN MACODE MAQUILING is hereby
DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte
in the 10 May 2010 elections.
This Decision is immediately executory.
Let a copy of this Decision be served personally upon the parties
and the Commission on Elections.

SILVERIO R. TAGOLINO, Petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND
LUCY MARIE TORRES-GOMEZ, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this Petition for Certiorari and Prohibition under Rule 65
of the Rules of Court is the March 22, 2012 Decision1 of the House
of Representatives Electoral Tribunal (HRET) in HRET Case No. 10031 (QW) which declared the validity of private respondent Lucy
Marie Torres-Gomezs substitution as the Liberal Partys
replacement candidate for the position of Leyte Representative
(Fourth Legislative District) in lieu of Richard Gomez.
The Facts
On November 30, 2009, Richard Gomez (Richard) filed his
certificate of candidacy2 (CoC) with the Commission on Elections
(COMELEC), seeking congressional office as Representative for the
Fourth Legislative District of Leyte under the ticket of the Liberal
Party. Subsequently, on December 6, 2009, one of the opposing
candidates, Buenaventura Juntilla (Juntilla), filed a Verified
Petition,3 alleging that Richard, who was actually a resident of
College Street, East Greenhills, San Juan City, Metro Manila,
misrepresented in his CoC that he resided in 910 Carlota Hills, Canadieng, Ormoc City. In this regard, Juntilla asserted that Richard
failed to meet the one (1) year residency requirement under Section
6, Article VI4 of the 1987 Philippine Constitution (Constitution) and
thus should be declared disqualified/ineligible to run for the said
office. In addition, Juntilla prayed that Richards CoC be denied due
course and/or cancelled.5
On February 17, 2010, the COMELEC First Division rendered a
Resolution6 granting Juntillas petition without any qualification. The
dispositive portion of which reads:
WHEREFORE, premises considered, the Commission RESOLVED,
as it hereby RESOLVE, to GRANT the Petition to Disqualify
Candidate for Lack of Qualification filed by BUENAVENTURA O.
JUNTILLA against RICHARD I. GOMEZ. Accordingly, RICHARD I.
GOMEZ is DISQUALIFIED as a candidate for the Office of
Congressman, Fourth District of Leyte, for lack of residency
requirement.
SO ORDERED.
Aggrieved, Richard moved for reconsideration but the same was
denied by the COMELEC En Banc through a Resolution dated May
4, 2010.7 Thereafter, in a Manifestation of even date, Richard
accepted the said resolution with finality "in order to enable his
substitute to facilitate the filing of the necessary documents for
substitution."8
On May 5, 2010, Lucy Marie Torres-Gomez (private respondent)
filed her CoC9 together with a Certificate of Nomination and
Acceptance10 from the Liberal Party endorsing her as the partys
official substitute candidate vice her husband, Richard, for the same
congressional post. In response to various letter-requests submitted
to the COMELECs Law Department (Law Department), the
COMELEC En Banc, in the exercise of its administrative functions,
issued Resolution No. 889011 on May 8, 2010, approving, among
others, the recommendation of the said department to allow the
substitution of private respondent. The recommendation reads:
STUDY AND OBSERVATION

No pronouncement as to costs.
On the same date, this Department received an Opposition from Mr.
Buenaventura O. Juntilla, thru his counsel, opposing the candidacy
of Ms. Lucy Marie Torres Gomez, as a substitute candidate for Mr.
Richard I. Gomez.

SO ORDERED.
G.R. No. 202202

March 19, 2013

45

The crux of the opposition stemmed from the issue that there should
be no substitution because there is no candidate to substitute for.

i.e., she failed to present valid and competent proof of her identity
before the notarizing officer.17

It must be stressed that the resolution of the First Division, this

Commission, in SPA No. 09-059 speaks for disqualification of
candidate Richard I. Gomez and not of cancellation of his Certificate
of Candidacy:

In her Verified Answer,18 private respondent denied petitioners

allegations and claimed that she validly substituted her husband in
the electoral process. She also averred that she personally known to
the notary public who notarized her CoC, one Atty. Edgardo
Cordeno, and thus, she was not required to have presented any
competent proof of identity during the notarization of the said
document. Lastly, she asserted that despite her marriage to Richard
and exercise of profession in Metro Manila, she continued to
maintain her residency in Ormoc City which was the place where
she was born and raised.

Wherefore, premises considered, the Commission RESOLVED, as

it hereby RESOLVES, to GRANT the Petition to Disqualify
Candidate for Lack of Qualification filed x x x against RICHARD I.
GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a
candidate for the Office of Congressman, Fourth District of Leyte, for
lack of residency requirement.
The said resolution was affirmed by the Commission En Banc on
May 04, 2010.
The disqualification of a candidate does not automatically cancel
ones certificate of candidacy, especially when it is nominated by a
political party. In effect, the political party is still allowed to substitute
the candidate whose candidacy was declared disqualified. After all,
the right to substitute is a privilege given to a political party to
exercise and not dependent totally to a candidate.

During the preliminary conference, and as shown in the Preliminary

Conference Order dated September 2, 2010, the parties agreed on
the following issues for resolution:
1.

Whether or not the instant petition for quo warranto is

meritorious;

2.

Whether or not the substitution of respondent is valid;

3.

Whether or not a petition for quo warranto can be used as

a substitute for failure to file the necessary petition for
disqualification with the COMELEC;

4.

Whether or not respondents COC was duly subscribed;

and

5.

Whether or not respondent is ineligible for the position of

Representative of the Fourth District of Leyte for lack of
residency requirement.19

Nonetheless, in case of doubt, the same must always be resolved to

the qualification of a candidate to run in the public office.
The substitution complied with the requirements provided under
Section 12 in relation to Section 13 of Comelec Resolution No. 8678
dated October 6, 2009.
xxxx
In view of the foregoing, the Law Department RECOMMENDS the
following:
xxxx
2. TO ALLOW CANDIDATE LUCY MARIE TORRES GOMEZ AS A
SUBSTITUTE CANDIDATE FOR RICHARD GOMEZ: (Emphasis
and underscoring supplied)
xxxx
The following day, or on May 9, 2010, Juntilla filed an Extremely
Urgent Motion for Reconsideration12 (May 9, 2010 Motion) of the
above-mentioned COMELEC En Banc resolution
Pending resolution of Juntillas May 9, 2010 Motion, the national and
local elections were conducted as scheduled on May 10, 2010.
During the elections, Richards, whose name remained on the
ballots, garnered 101, 250 votes while his opponents, namely,
Eufrocino Codilla, Jr. and herein petitioner Silverio Tagolino,
obtained 76,549 and 493 votes, respectively.13 In view of the
aforementioned substitution, Richards votes were credited in favor
of private respondent and as a result, she was proclaimed the dulyelected Representative of the Fourth District of Leyte.
On May 11, 2010, Juntilla filed an Extremely Urgent Motion to
resolve the pending May 9, 2010 Motion relative to Resolution No.
8890.14 The said motion, however, remained unacted.
On May 24, 2010, petitioner filed a Petition15 for quo warranto before
the HRET in order to oust private respondent from her congressional
seat, claiming that: (1) she failed to comply with the one (1) year
residency requirement under Section 6, Article VI of the Constitution
considering that the transfer of her voter registration from San
Rafael Bulacan16 to the Fourth District of Leyte was only applied for
on July 23, 2009; (2) she did not validly substitute Richard as his
CoC was void ab initio; and (3) private respondents CoC was void
due to her non-compliance with the prescribed notarial requirements

Ruling of the HRET

After due proceedings, the HRET issued the assailed March 22,
2012 Decision20 which dismissed the quo warranto petition and
declared that private respondent was a qualified candidate for the
position of Leyte Representative (Fourth Legislative District). It
observed that the resolution denying Richards candidacy i.e., the
COMELEC First Divisions February 17, 2010 Resolution, spoke of
disqualification and not of CoC cancellation. Hence, it held that the
substitution of private respondent in lieu of Richard was legal and
valid.21 Also, it upheld the validity of private respondents CoC due to
petitioners failure to controvert her claim that she was personally
known to the notary public who notarized her CoC.22 Finally, the
HRET ruled that while it had been admitted that private respondent
resides in Colgate Street, San Juan City and lived in San Rafael,
Bulacan, the fact was she continued to retain her domicile in Ormoc
City given that her absence therefrom was only temporary.
Hence, the instant petition.
Issues Before the Court
The crux of the present controversy is whatever or not the HRET
gravely abused its discretion in finding that Richard was validly
substituted by private respondent as candidate for Leyte
Representative (Fourth Legislative District) in view of the formers
failure to meet the one (1) year residency requirement provided
under Section 6, Article VI of the Constitution.
It is petitioners submission that the HRET gravely abused its
discretion when it upheld the validity of private respondents
substitution despite contrary jurisprudence holding that substitution
is impermissible where the substituted candidates CoC was denied
due course to and/or cancelled, as in the case of Richard. On the
other hand, respondents maintain that Richards CoC was not
denied due course to and/or cancelled by the COMELEC as he was
only "disqualified" and therefore, was properly substituted by private
respondent.
Ruling of the Court

46

The petition is meritorious.

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

in the determination of whether ones CoC should be deemed

cancelled or not.39 What remains material is that the petition
essentially seeks to deny due course to and/or cancel the CoC on
the basis of ones ineligibility and that the same be granted without
any qualification.40
Pertinently, while a disqualified candidate under Section 68 is still
considered to have been a candidate for all intents and purposes, on
the other hand, a person whose CoC had been denied due course
to and/or cancelled under Section 78 is deemed to have not been a
candidate at all. The reason being is that a cancelled CoC is
considered void ab initio and thus, cannot give rise to a valid
candidacy and necessarily, to valid votes.41 In Talaga v.
COMELEC42 (Talaga), the Court ruled that:
x x x x While a person who is disqualified under Section 68 is merely
prohibited to continue as a candidate, a person who certificate is
cancelled or denied due course under Section 78 is not treated as a
candidate at all, as if he/she never filed a CoC.
The foregoing variance gains utmost importance to the present case
considering its implications on candidate substitution.
B. Valid CoC as a condition sine qua non for candidate substitution
Section 77 of the OEC provides that if an official candidate of a
registered or accredited political party dies, withdraws or is
disqualified for any cause, a person belonging to and certified by the
same political party may file a CoC to replace the candidate who
died, withdrew or was disqualified. It states that:
Sec. 77. Candidates in case of death, disqualification or withdrawal
of another. - If after the last day for the filing of certificates of
candidacy, an official candidate of a registered or accredited political
party dies, withdraws or is disqualified for any cause, only a person
belonging to, and certified by, the same political party may file a
certificate of candidacy to replace the candidate who died, withdrew
or was disqualified. (Emphasis supplied)
Evidently, Section 77 requires that there be an "official candidate"
before candidate substitution proceeds. Thus, whether the ground
for substitution is death, withdrawal or disqualification of a
candidate, the said section unequivocally states that only an official
candidate of a registered or accredited party may be substituted. 43
As defined under Section 79(a) of the OEC, the term "candidate"
refers to any person aspiring for or seeking an elective public office
who has filed a certificate of candidacy by himself or through an
accredited political party, aggroupment, or coalition of parties.
Clearly, the law requires that one must have validly filed a CoC in
order to be considered a candidate. The requirement of having a
CoC obtains even greater importance if one considers its nature. In
particular, a CoC formalizes not only a persons public declaration to
run for office but evidences as well his or her statutory eligibility to
be elected for the said post. In Sinaca v. Mula,44 the Court has
illumined:
A certificate of candidacy is in the nature of a formal manifestation to
the whole world of the candidates political creed or lack of political
creed. It is a statement of a person seeking to run for a public office
certifying that he announces his candidacy for the office mentioned
and the be is eligible for the office, the name of the political party to
which he belongs, if he belongs to any, and his post-office address
for all election purposes being as well stated. (Emphasis and
underscoring supplied).
In this regard, the CoC is the document which formally accords upon
a person the status of a candidate. In other words, absent a valid
CoC one is not considered a candidate under legal contemplation.
As held in Talaga:45
x x x a persons declaration of his intention to run for public office
and his affirmation that he possesses the eligibility for the position
he seeks to assume, followed by the timely filing of such declaration,

47

constitute a valid CoC that render the person making the declaration
a valid or official candidate. (Emphasis supplied)
Considering that Section 77 requires that there be a candidate in
order for substitution to take place, as well as the precept that a
person without a valid CoC is not considered as a candidate at all, it
necessarily follows that if a persons CoC had been denied due
course to and/or cancelled, he or she cannot be validly substituted in
the electoral process. The existence of a valid CoC is therefore a
condition sine qua non for a disqualified candidate to be validly
substituted.46
C. Divergent effects of disqualification and denial of due course to
and/or cancellation of CoC cases vis--vis candidate substitution
Proceeding, from the foregoing discourse, it is evident that there lies
a clear-cut distinction between a disqualification case under Section
68 and denial of due course to and/or cancellation of COC case
under Section 78 vis--vis their respective effects on candidate
substitution under Section 77.1wphi1
As explained in the case of Miranda v. Abaya47 (Miranda), a
candidate who is disqualified under Section 68 can be validly
substituted pursuant to Section 77 because he remains a candidate
until disqualified; but a person whose CoC has been denied due
course to and/or cancelled under Section 78 cannot be substituted
because he is not considered a candidate.48 Stated differently, since
there would be no candidate to speak of under a denial of due
course to and/or cancellation of a CoC case, then there would be no
candidate to be substituted; the same does not obtain, however, in a
disqualification case since there remains to be a candidate to be
substituted, although his or her candidacy is discontinued.
On this note, it is equally revelatory that Section 77 expressly
enumerates the instances where substitution is permissible, that is
when an official candidate of a registered or accredited political party
"dies, withdraws or is disqualified for any cause." Noticeably,
material misrepresentation cases are not included in the said section
and therefore, cannot be a valid basis to proceed with candidate
substitution.
D. Application to the case at bar
In this case, it is undisputed that Richard was disqualified to run in
the May 10, 2010 elections due to his failure to comply with the one
year residency requirement.49 The confusion, however, stemmed
from the use of the word "disqualified" in the February 17, 2010
Resolution of the COMELEC First Division, which was adopted by
the COMELEC En Banc in granting the substitution of private
respondent, and even further perpetuated by the HRET in denying
the quo warranto petition. In short, a finding that Richard was merely
disqualified and not that his CoC was denied due course to and/or
cancelled would mean that he could have been validly substitute
by private respondent, thereby legitimizing her candidacy.
Yet the fact that the COMELEC First Divisions February 17, 2010
Resolution did not explicitly decree the denial of due course to
and/or cancellation of Richards CoC should not have obviated the
COMELEC En Banc from declaring the invalidity of private
respondents substitution. It should be stressed that the clear and
unequivocal basis for Richards "disqualification" is his failure to
comply with the residency requirement under Section 6, Article VI of
the Constitution which is a ground for the denial of due course to
and/or cancellation a CoC under Section 78 of the OEC,
misrepresentation contemplated under a Section 78 petition refers to
statements affecting ones qualifications for elective office such as
age, residence and citizenship or non-possession of natural-born
Filipino status.51 There is therefore no legal basis to support a
finding of disqualification within the ambit of election laws.
Accordingly, given Richards non-compliance with the one year
residency requirement, it cannot be mistaken that the COMELEC
First Divisions unqualified grant of Juntillas "Verified Petition to
Disqualify Candidate for Lack of Qualification"52 which prayed that
the COMELEC declare Richard "DISQUALIFIED and INELIGIBLE
from seeking the office of Member of the House of Representatives"
and "x x x that his Certificate of Candidacy x x x be DENIED DUE

COURSE and/or CANCELLED"53 carried with it the denial of due

course to and/or cancellation of Richards CoC pursuant to Section
78.
Case law dictates that if a petition prays for the denial of due course
to and/or cancellation of CoC and the same is granted by the
COMELEC without any qualification, the cancellation of the
candidates CoC in in order. This is precisely the crux of the Miranda
ruling wherein the Court, in upholding the COMELEC En Bancs
nullification of the substitution in that case, decreed that the
COMELEC Divisions unqualified grant of the petition necessarily
included the denial of due course to and/or cancellation of the
candidates CoC, notwithstanding the use of the term "disqualified"
in the COMELEC Divisions resolution, as the foregoing was prayed
for in the said petition:
The question to settle next is whether or not aside from Joiel
"Pempe" Miranda being disqualified by the COMELEC in its May 5,
1998 resolution, his certificate of candidacy had likewise been
denied due course and cancelled.
The Court rules that it was.
Private respondents petition in SPA No. 98-019 specifically prayed
for the following:
WHEREFORE, it is respectfully prayed that the Certificate of
Candidacy filed by respondent for the position of Mayor for the City
of Snatiago be not given due course and/or cancelled.
Other reliefs just and equitable in the premises are likewise prayed
for.
In resolving the petition filed by private respondent specifying a very
particular relief, the COMELEC ruled favorably in the following
manner:
WHEREFORE, in view of the foregoing, the Commission (FIRST
DIVISION) GRANTS the Petition. Respondent JOSE "Pempe"
MIRANDA is hereby DISQUALIFIED from running for the position of
mayor of Santiago City, Isabela, in the May 11, 1998 national and
local elections.
SO ORDERED.
From a plain reading of the dispositive portion of the COMELEC
resolution of May 5, 1998 in SPA No. 98-019, it is sufficiently clear
that the prayer specifically and particularly sought in the petition was
GRANTED, there being no qualification on the matter whatsoever.
The disqualification was simply ruled over and above the granting of
the specific prayer for denial of due course and cancellation of the
certificate of candidacy.
xxxx
There is no dispute that the complaint or petition filed by private
respondent in SPA No. 98-019 is one to deny due course and to
cancel the certificate of candidacy of Jose "Pempe" Miranda. There
is likewise no question that the said petition was GRANTED without
any qualification whatsoever. It is rather clear, therefore, that
whether or not the COMELEC granted any further relief in SPA No.
98-019 by disqualifying the candidate, the fact remains that the said
petition was granted and that the certificate of candidacy of Jose
"Pempe" Miranda was denied due course and cancelled. (Emphasis
and underscoring supplied)
The same rule was later discussed in the case of Talaga, viz:
3. Granting without any qualification or petition in SPA No. 09029(DC) manifested COMELECs intention to declare Ramon
disqualified and to cancel his CoC
xxxx

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In Miranda v. Abaya, the specific relief that the petition prayed for
was that the CoC "be not given due course and/or cancelled". The
COMELEC categorically granted "the petition" and then pronounced
in apparent contradiction that Joel Pempe Miranda was
"disqualified." The Court held that the COMELEC, by granting the
petition without any qualification, disqualified Joel Pempe Miranda
and at the same time cancelled Jose Pempe Mirandas CoC.
xxxx
The crucial point of Miranda v. Abaya was that the COMELEC
actually granted the particular relief of cancelling or denying due
course to the CoC prayed for in the petition by not subjecting that
relief to any qualification. (Emphasis and underscoring supplied)
In view of the foregoing rulings, the COMELEC En Banc direly
misconstrued the COMELEC First Divisions February 17, 2010
Resolution when it adopted the Law Departments finding that
Richard was only "disqualified" and that his CoC was not denied due
course to and/or cancelled, paving the way for the approval of
private respondents substitution. It overlooked the fact that the
COMELEC First Divisions ruling encompassed the cancellation of
Richards CoC and in consequence, disallowed the substitution of
private respondent. It was therefore grave and serious error on the
part of the COMELEC En Banc to have approved private
respondents substitution.
Consequently, in perpetuating the COMELEC En Bancs error as
above-discussed, the HRET committed a grave abuse of discretion,
warranting the grant of the instant petition.
Fundamental is the rule that grave abuse of discretion arises when a
lower court or tribunal patently violates the Constitution, the law or
existing jurisprudence.54 While it is well-recognized that the HRET
has been empowered by the Constitution to be the "sole judge" of all
contests relating to the election, returns, and qualifications of the
members of the House, the Court maintains jurisdiction over it to
check "whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction" on the part of the
latter.55 In other words, when the HRET utterly disregards the law
and settled precedents on the matter before it, it commits a grave
abuse of discretion.
Records clearly show that: (1) Richard was held ineligible as a
congressional candidate for the Fourth District of Leyte due to his
failure to comply with the one year residency requirement; (2)
Juntillas petition prayed for the denial of due course to and/or
cancellation of his CoC; and (3) the COMELEC First Division
granted the foregoing petition without any qualification. By these
undisputed and essential facts alone, the HRET should not have
adopted the COMELEC En Bancs erroneous finding that the
COMELEC First Divisions February 17, 2010 Resolution "speaks
only of "disqualification and not of cancellation of Richards
CoC"36 and thereby, sanctioned the substitution of private
respondent.
Lest it be misunderstood, the HRET is not bound by previous
COMELEC pronouncements relative to the qualifications of the
Members of the House. Being the sole judge57 of all contests relating
to the election, returns, and qualifications of its respective members,
the HRET cannot be tied down by COMELEC resolutions, else its
constitutional mandate58 be circumvented and rendered nugatory.
Instructive on this point is the Courts disquisition in Fernandez v.
HRET,59 to wit:

Private respondent concludes from the above that petitioner had no

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

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