Election Laws Cases (Part 1)

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.
L-22944 February 10, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. CLAUDIA SAN JUAN and SEVERO SAN JUAN, defendants-appellees. Francisco D. Abas for defendants-appellees. Office of the Solicitor General for plaintiff-appellant. CASTRO, J.: Before us for review, on appeal by the People of the Philippines, is an order, dated April 17, 1964, of the Court of First Instance of Leyte (Ormoc City) quashing upon motion of the defense, an indictment for violation of Section 133 of the Revised Election Code. The information charges That on or about the 12th day of November, 1963 (election day), at around 10:00 o'clock in the morning at the polling place at the City Central School, Ormoc City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused CLAUDIA SAN JUAN and SEVERO SAN JUAN, conspiring, cooperating, confabulating and helping with one another, did then and there willfully, unlawfully, and feloniously with the use of force, prevent the complaining witness GENEROSA PILAPIL from exercising her right to freely enter the polling place of Precinct No. 1 in order to vote. Succinct to the point of curtness the one-sentence order appealed from decree that "As the facts charged do not constitute an offense, pursuant to the ruling of our Supreme Court in the case of U.S. vs. Pompeya, 31 Phil. 245, this case is hereby dismissed". The case having been allowed to go off summarily on a motion to quash predicated upon the insufficiency of the information, it is to be assumed that the defense conformably to basic procedural tenets and for purposes of its motion admits all the material averments of the information. Accordingly, the inquiry in this appeal is limited to whether the indictment sufficiently avers all the essential elements of the prescribed act. 1 Section 133 of the Revised Election Code, a violation of which is denominated as a serious election offense by section 138 of the same Code, provides: Order of Voting. The voters shall have the right to vote in the order of their entrance into the polling place. The voters shall have the right to freely enter the polling place as soon as they arrive unless there are more than forty voters waiting inside, in which case they have the right to enter in the order of their arrival as those who are inside go out, which the latter shall immediately do after having cast their votes. Implicit in the averment that the complainant was at the "polling place of Precinct No. 1 in order to vote" is the fact that she was, at the time, a duly registered voter intent on exercising the right of suffrage. For that purpose and vis-a-vis other voters, the aforequoted legal precept guaranteed her the rights (1) to vote in the order of her entrance into the polling place; (2) to freely enter the polling place as soon as she arrived unless there were then more than forty voters waiting inside; and (3) in the latter eventuality, to enter in the order of her arrival as those inside went out. We are here concerned more particularly with the second of these rights. For the gravamen of the information is that the accused Claudia San Juan and Severo San Juan "willfully, unlawfully, and feloniously with the use of force prevent(ed) the complaining witness Generosa Pilapil from exercising her right to freely enter the polling place of Precinct No. 1 in order to vote". However, the right thus allegedly infringed upon is qualified by the clause: "unless there are more than forty voters waiting inside". This, in effect, defines an exception by virtue of which the right is not intended to be immediately operative. As formulated, the information does not negative this exception. So that the key to the problem at hand lies in the determination of whether, to sufficiently charge a violation of that right, the indictment should explicitly negate the exception. Well delineated in our jurisprudence are the pertinent guiding principles. U.S. vs. Chan Toco, 12 Phil. 268, teaches that 1wph1.t Election Laws Introductory Concepts
. . . As a rule, an exception in a statute by which certain particulars are withdrawn from or excepted out of the operation of the enacting clause thereof defining a crime concerning a class or species, constitutes no part of the definition of such crime, whether placed close to or remote from such enacting clause. And, whenever a person accused of the commission of such a crime claims to be within such exception, it is more logical and convenient that he should aver and prove the fact than that the prosecutor should anticipate such defense, and deny it. Adherence to this rule has been unswerving for instance, in prosecutions under the Opium Law 2 which punishes the use of prohibited drugs "save upon the prescription of a duly licensed and practicing physician". The rule that for an information to be sufficient, it need not allege that the accused is outside the periphery of the saving clause was echoed in People vs. Cadabis, 97 Phil., 829, a prosecution for violation of section 53 of the Revised Election Code, which statutory provision prohibits the carrying of deadly weapons in a polling place but exempts from the prohibition public officers enforcing the law or preserving peace in the premises. On the contention therein that the facts charged in the information do not constitute an offense, because "there is no statement denying that the accused had been authorized to supervise the elections and/or carried the firearm on the occasion of tumultuous affray or disorder", this Court held that . . . It was not incumbent on the prosecution to make the allegation, because the matter was something for the accused to assert and establish in his defense. The law prohibits the carrying of deadly weapons in the polling place. An exception is made for peace or public officers enforcing the law or preserving peace in the premises. . . . The exception is for the defendant to prove not for the prosecution to disprove. To our mind, the case at bar stands on the same footing. The limitation when there are more than forty voters waiting inside on the right of a voter to freely enter the polling place does not constitute an essential part of the definition of the crime contemplated in section 133 of the Revised Election Code. Instead, it is but a matter which the accused must assert and establish as a defense, and not for the prosecution to anticipate, allege, and disprove. True it is that U.S. v. Pompeya, 31 Phil. 245, 255, 256, 257, is authority for the rule that where a statute exempts certain persons or classes of persons from liability, the indictment, to be sufficient, must show that the person charged does not fall within the exemptions. This is so because in that case, the ordinance alleged to have been violated applied only to specific classes of persons and to special conditions. Thus With reference to the first question presented by the appeal, relating to the sufficiency of the complaint, it will be noted that Act. No. 1309 authorized the municipal governments to established ordinances requiring (a) all able-bodied male residents, between the ages of 18 and 55 [50], and (b) all householders, under certain conditions, to do certain things. It will also be noted that the law authorizing the president of the municipality to call upon persons, imposes certain conditions as pre-requisites: (1) The person called upon to render such services must be an able-bodied male resident of the municipality; (2) he must be between the ages of 18 and 55 [50], and (3) certain conditions must exist requiring the services of such persons. It will not be contended that a non-resident of the municipality would be liable for his refusal to obey the call of the president; neither can it be logically contended that one under the age of 18 or over the age of 55 [50] would incur the penalty of the law by his refusal to obey the command of the president. Moreover, the persons liable for the service mentioned in the law cannot be called upon at the mere whim or caprice of the president. The conditions mentioned in the law must exist. There must be some just and reasonable ground, at least sufficient in the mind of a reasonable man, before the president can call upon the persons the service mentioned in the law. The law does not apply to all persons. The law does not apply to every condition. The law applies to special persons and special conditions. A complaint based upon such a law, in order to be free from objection under a demurrer, must show that the person charged belongs to the class of persons to which the law is applicable. xxx xxx xxx
The complaint must show, on its face that, if the facts alleged are true, an offense has been committed. It must state explicitly and directly every fact and circumstances necessary to constitute an offense. If the statute exempts certain persons, or classes of persons, from liability, then the complaint should show that the persons charged does not belong to that class. Even admitting all of the facts stated in the complaint in the present case, the court would be unable to impose the punishment provided for by law, because it does not show (a) that the defendant was a male citizen of the municipality; (b) that he was an able-bodied citizen; (c) that he was not under 18 years of age nor over 55 [50]; nor (d) that conditions existed which justified the president of the municipality in calling upon him for the services mentioned in the law. Election Laws Introductory Concepts
In the case at bar, however, like in Chan Toco and Cabadis, the legal provisions involved prohibit and penalize generally the acts therein defined, and are intended to apply to all persons indiscriminately. Besides, in Pompeya, the exemptions are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption are omitted. This is not so in the present case where the complete definition of the offense is entirely separable from the exception and can be made without any reference to the latter. This view, which thus far is purely from the perspective of legal technology, finds affirmation of its validity when we realize that we are here dealing with the exercise of the right of suffrage which, in the consensus of political philosophers of consequence, is the bedrock of all republican institutions. The unadorned statement in Article V of the Constitution is a simple but sacred avowal of faith in the efficacy and durability of the democratic process. It is a recognition that the people in their sovereign character are the fountainhead of governmental authority, and that their right to participate in the power process is indispensable for democratic government to constitute an effective instrument of social control. In the phrase of Mr. Justice Jose Laurel As long as popular government is an end to be achieved and safeguarded, suffrage, whatever be the modality and form devised, must continue to be the means by which the great reservoir of power must be emptied into receptacular agencies wrought by the people through their Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority.3 Indeed, each time the enfranchised citizen goes to the polls to assert this sovereign will, that abiding credo of republicanism is translated into living reality. If that will must remain undefiled at the starting level of its expression and application, every assumption must be indulged in and every guarantee adopted to assure the unmolested exercise of the citizen's free choice. For to impede, without authority valid in law, the free and orderly exercise of the right of suffrage is to inflict the ultimate indignity on the democratic process. As numerous as they are insidious are long-standing techniques of terror and intimidation that have been conceived by man in derogation of the right of suffrage which we have repeatedly and unqualifiedly condemned. When the legislature provided in section 133 of the Revised Election Code an explicit and unequivocal guarantee of a voter's free access to the polling place, it could have intended no purpose other than to maintain inviolate the right to vote by safeguarding the voter against all manner of unauthorized interference and travesty that surveyors of fear can devise. Every unlawful obstacle, by whatever means or method, interposed to the free entry of a voter into the polling place to cast his vote, strikes at the very heart of the right of suffrage. That the transgressor is outside the compass of the excepted situation, cannot be regarded as an essential ingredient of the offense. Let him prove his disclaimer who pleads that he comes within the ambit of the exception. Upon the foregoing disquisition, we hold that the information here satisfies the requirements for the legal sufficiency of an indictment lodged under section 133 of the Revised Election Code. ACCORDINGLY, the order appealed from is set aside. This case is hereby ordered remanded to the court of origin for further proceedings in accordance with law. No costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Angeles and Fernando, JJ., concur.1wph1.t
Election Laws Introductory Concepts
EN BANC [G.R. No. 157013. July 10, 2003] ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary of the Department of Budget and Management, respondents. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of the Philippine Bar, seeking a declaration that certain provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003) suffer from constitutional infirmity. Claiming that he has actual and material legal interest in the subject matter of this case in seeing to it that public funds are properly and lawfully used and appropriated, petitioner filed the instant petition as a taxpayer and as a lawyer. The Court upholds the right of petitioner to file the present petition. R.A. No. 9189, entitled, An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes, appropriates funds under Section 29 thereof which provides that a supplemental budget on the General Appropriations Act of the year of its enactment into law shall provide for the necessary amount to carry out its provisions. Taxpayers, such as herein petitioner, have the right to restrain officials from wasting public funds through the enforcement of an unconstitutional statute. The Court has held that they may assail the validity of a law appropriating public funds because expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. The challenged provision of law involves a public right that affects a great number of citizens. The Court has adopted the policy of taking jurisdiction over cases whenever the petitioner has seriously and convincingly presented an issue of transcendental significance to the Filipino people. This has been explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, where the Court held: Objections to taxpayers suit for lack of sufficient personality standing, or interest are, however, in the main procedural matters. Considering the importance to the public of the cases at bar, and in keeping with the Courts duty, under the 1987 Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of these petitions. Indeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage of a considerable number of Filipinos is involved. The question of propriety of the instant petition which may appear to be visited by the vice of prematurity as there are no ongoing proceedings in any tribunal, board or before a government official exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the Rules of Court, dims in light of the importance of the constitutional issues raised by the petitioner. In Taada vs. Angara, the Court held: In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. The question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld. Once a controversy as to the application or interpretation of constitutional provision is raised before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide. In another case of paramount impact to the Filipino people, it has been expressed that it is illogical to await the adverse consequences of the law in order to consider the controversy actual and ripe for judicial resolution. In yet another case, the Court said that: . . . despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not hesitate to declare a law or act invalid when it is convinced that this must be done. In arriving at this conclusion, its only criterion will be the Constitution and God as its conscience gives it in the light to probe its meaning and discover its purpose. Personal motives and political considerations are irrelevancies that cannot influence its decisions. Blandishment is as ineffectual as intimidation, for all the awesome power of the Congress and Executive, the Court will not hesitate to make the hammer fall heavily, where the acts of these departments, or of any official, betray the peoples will as expressed in the Constitution . . . 4 Election Laws Introductory Concepts
The need to consider the constitutional issues raised before the Court is further buttressed by the fact that it is now more than fifteen years since the ratification of the 1987 Constitution requiring Congress to provide a system for absentee voting by qualified Filipinos abroad. Thus, strong reasons of public policy demand that the Court resolves the instant petition and determine whether Congress has acted within the limits of the Constitution or if it had gravely abused the discretion entrusted to it. The petitioner raises three principal questions: A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or permanent residents in other countries by their mere act of executing an affidavit expressing their intention to return to the Philippines, violate the residency requirement in Section 1 of Article V of the Constitution? B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning candidates for national offices and party list representatives including the President and the Vice-President violate the constitutional mandate under Section 4, Article VII of the Constitution that the winning candidates for President and the Vice-President shall be proclaimed as winners by Congress? C. May Congress, through the Joint Congressional Oversight Committee created in Section 25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and approve the Implementing Rules and Regulations that the Commission on Elections shall promulgate without violating the independence of the COMELEC under Section 1, Article IX-A of the Constitution? The Court will resolve the questions in seriatim. A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution of the Republic of the Philippines? Section 5(d) provides: Sec. 5. Disqualifications. The following shall be disqualified from voting under this Act: ... ... ...
d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months immediately preceding an election. Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals to support his claim. In that case, the Court held that a green card holder immigrant to the United States is deemed to have abandoned his domicile and residence in the Philippines. Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise; that the legislature should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by providing a condition thereon which in effect amends or alters the aforesaid residence requirement to qualify a Filipino abroad to vote. He claims that the right of suffrage should not be granted to anyone who, on the date of the election, does not possess the qualifications provided for by Section 1, Article V of the Constitution. Respondent COMELEC refrained from commenting on this issue. In compliance with the Resolution of the Court, the Solicitor General filed his comment for all public respondents. He contraposes that the constitutional challenge to Section 5(d) must fail because of the absence of clear and unmistakable showing that said provision of law is repugnant to the Constitution. He stresses: All laws are presumed to be constitutional; by the doctrine of separation of powers, a department of government owes a becoming respect for the acts of the other two departments; all laws are presumed to have adhered to constitutional limitations; the legislature intended to enact a valid, sensible, and just law. In addition, the Solicitor General points out that Section 1, Article V of the Constitution is a verbatim reproduction of those provided for in the 1935 and the 1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House of Representatives wherein the Court held that the term residence has been understood to be synonymous with domicile under both Constitutions. He further argues that 5 Election Laws Introductory Concepts
a person can have only one domicile but he can have two residences, one permanent (the domicile) and the other temporary; and that the definition and meaning given to the term residence likewise applies to absentee voters. Invoking Romualdez-Marcos vs. COMELEC which reiterates the Courts ruling in Faypon vs. Quirino, the Solicitor General maintains that Filipinos who are immigrants or permanent residents abroad may have in fact never abandoned their Philippine domicile. Taking issue with the petitioners contention that green card holders are considered to have abandoned their Philippine domicile, the Solicitor General suggests that the Court may have to discard its ruling in Caasi vs. Court of Appeals in so far as it relates to immigrants and permanent residents in foreign countries who have executed and submitted their affidavits conformably with Section 5(d) of R.A. No. 9189. He maintains that through the execution of the requisite affidavits, the Congress of the Philippines with the concurrence of the President of the Republic had in fact given these immigrants and permanent residents the opportunity, pursuant to Section 2, Article V of the Constitution, to manifest that they had in fact never abandoned their Philippine domicile; that indubitably, they would have formally and categorically expressed the requisite intentions, i.e., animus manendi and animus revertendi; that Filipino immigrants and permanent residents abroad possess the unquestionable right to exercise the right of suffrage under Section 1, Article V of the Constitution upon approval of their registration, conformably with R.A. No. 9189. The seed of the present controversy is the interpretation that is given to the phrase, qualified citizens of the Philippines abroad as it appears in R.A. No. 9189, to wit: SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest and orderly overseas absentee voting that upholds the secrecy and sanctity of the ballot. Towards this end, the State ensures equal opportunity to all qualified citizens of the Philippines abroad in the exercise of this fundamental right. SEC. 3. Definition of Terms. For purposes of this Act: a) Absentee Voting refers to the process by which qualified citizens of the Philippines abroad, exercise their right to vote;
. . . (Emphasis supplied) f) Overseas Absentee Voter refers to a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections. (Emphasis supplied) SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives. (Emphasis supplied) in relation to Sections 1 and 2, Article V of the Constitution which read: SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. ... ... . . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by (1) all citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen years of age, (4) who are residents in the Philippines for at least one year and in the place where they propose to vote for at least six months immediately preceding the election. Under Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant or permanent resident who is recognized as such in the host country unless he/she executes an affidavit declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three years from approval of his/her registration under said Act. Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos abroad who are immigrants or permanent residents, to vote. He focuses solely on Section 1, Article V of the Constitution in ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the provisions of Section 2 empowering Congress to provide a system for absentee voting by qualified Filipinos abroad. A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it contravenes Section 1, Article V of the Constitution. Filipino immigrants and permanent residents overseas are perceived as having left and abandoned the Philippines to 6 Election Laws Introductory Concepts
live permanently in their host countries and therefore, a provision in the law enfranchising those who do not possess the residency requirement of the Constitution by the mere act of executing an affidavit expressing their intent to return to the Philippines within a given period, risks a declaration of unconstitutionality. However, the risk is more apparent than real. The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. Laws that do not conform to the Constitution shall be stricken down for being unconstitutional. Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the Court said: . . . An act of the legislature, approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. The question of the validity of every statute is first determined by the legislative department of the government itself. Thus, presumption of constitutionality of a law must be overcome convincingly: . . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be clear and unequivocal, for even if a law is aimed at the attainment of some public good, no infringement of constitutional rights is allowed. To strike down a law there must be a clear showing that what the fundamental law condemns or prohibits, the statute allows it to be done. As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in constitutional construction that the Constitution should be construed as a whole. In Chiongbian vs. De Leon, the Court held that a constitutional provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. Constitutional provisions are mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest. The intent of the Constitution may be drawn primarily from the language of the document itself. Should it be ambiguous, the Court may consider the intent of its framers through their debates in the constitutional convention. R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI (The Legislative Department) of the Constitution. To put matters in their right perspective, it is necessary to dwell first on the significance of absentee voting. The concept of absentee voting is relatively new. It is viewed thus: The method of absentee voting has been said to be completely separable and distinct from the regular system of voting, and to be a new and different manner of voting from that previously known, and an exception to the customary and usual manner of voting. The right of absentee and disabled voters to cast their ballots at an election is purely statutory; absentee voting was unknown to, and not recognized at, the common law. Absentee voting is an outgrowth of modern social and economic conditions devised to accommodate those engaged in military or civil life whose duties make it impracticable for them to attend their polling places on the day of election, and the privilege of absentee voting may flow from constitutional provisions or be conferred by statutes, existing in some jurisdictions, which provide in varying terms for the casting and reception of ballots by soldiers and sailors or other qualified voters absent on election day from the district or precinct of their residence. Such statutes are regarded as conferring a privilege and not a right, or an absolute right. When the legislature chooses to grant the right by statute, it must operate with equality among all the class to which it is granted; but statutes of this nature may be limited in their application to particular types of elections. The statutes should be construed in the light of any constitutional provisions affecting registration and elections, and with due regard to their texts prior to amendment and to predecessor statutes and the decisions thereunder; they should also be construed in the light of the circumstances under which they were enacted; and so as to carry out the objects thereof, if this can be done without doing violence to their provisions and mandates. Further, in passing on statutes regulating absentee voting, the court should look to the whole and every part of the election laws, the intent of the entire plan, and reasons and spirit of their adoption, and try to give effect to every portion thereof. (Emphasis supplied) Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee. However, under our election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residence in the Philippines as residence is considered synonymous with domicile. In Romualdez-Marcos, the Court enunciated: 7 Election Laws Introductory Concepts
Article 50 of the Civil Code decrees that [f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their place of habitual residence. In Ong vs. Republic, this court took the concept of domicile to mean an individuals permanent home, a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent. Based on the foregoing, domicile includes the twin elements of the fact of residing or physical presence in a fixed place and animus manendi, or the intention of returning there permanently. Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a persons intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. It is thus, quite perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic, we laid this distinction quite clearly: There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether permanent or temporary; domicile denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarily so since no leng th of residence without intention of remaining will constitute domicile. For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile. (Emphasis supplied) Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the Constitution considered the circumstances that impelled them to require Congress to establish a system for overseas absentee voting, thus: MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has a residential restriction, is not denied to citizens temporarily residing or working abroad. Based on the statistics of several government agencies, there ought to be about two million such Filipinos at this time. Commissioner Bernas had earlier pointed out that these provisions are really lifted from the two previous Constitutions of 1935 and 1973, with the exception of the last paragraph. They could not therefore have foreseen at that time the phenomenon now described as the Filipino labor force explosion overseas. According to government data, there are now about 600,000 contract workers and employees, and although the major portions of these expatriate communities of workers are to be found in the Middle East, they are scattered in 177 countries in the world. In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said that there was no insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own or under pressure of economic necessity here, find that they have to detach themselves from their families to work in other countries with definite tenures of employment. Many of them are on contract employment for one, two, or three years. They have no intention of changing their residence on a permanent basis, but are technically disqualified from exercising the right of suffrage in their countries of destination by the residential requirement in Section 1 which says: Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election. I, therefore, ask the Committee whether at the proper time they might entertain an amendment that will make this exercise of the right to vote abroad for Filipino citizens an effective, rather than merely a nominal right under this proposed Constitution. FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would like to make a comment on the meaning of residence in the Constitution because I think it is a concept that has been discussed in various decisions of the Supreme Court, particularly in the case of Faypon vs. Quirino, a 1954 case which dealt precisely with the meaning of residence in the Election Law. Allow me to quote: A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to improve his lot and that, of course, includes study in other places, practice of his avocation, reengaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may decide to return to his native town, to cast his ballot, but for professional or business reasons, or for any other reason, he may not absent himself from the place of his professional or business activities.
So, they are here registered as voters as he has the qualifications to be one, and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin has not forsaken him. This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient to consider abandonment or loss of such residence of origin. In other words, residence in this provision refers to two residence qualifications: residence in the Philippines and residence in the place where he will vote. As far as residence in the Philippines is concerned, the word residence means domicile, but as far as residence in the place where he will actually cast his ballot is concerned, the meaning seems to be different. He could have a domicile somewhere else and yet he is a resident of a place for six months and he is allowed to vote there. So that there may be serious constitutional obstacles to absentee voting, unless the vote of the person who is absent is a vote which will be considered as cast in the place of his domicile. MR. OPLE. Thank you for citing the jurisprudence. It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of suffrage, at least a substantial segment of these overseas Filipino communities. The Committee, of course, is aware that when this Article of the Constitution explicitly and unequivocally extends the right of effective suffrage to Filipinos abroad, this will call for a logistical exercise of global proportions. In effect, this will require budgetary and administrative commitments on the part of the Philippine government, mainly through the COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive elaboration of this mechanism that will be put in place to make effective the right to vote. Therefore, seeking shelter in some wise jurisprudence of the past may not be sufficient to meet the demands of the right of suffrage for Filipinos abroad that I have mentioned. But I want to thank the Committee for saying that an amendment to this effect may be entertained at the proper time. . . . . . . . . . (Emphasis supplied) Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad principally for economic reasons and hence they contribute in no small measure to the economic uplift of this country, their voices are marginal insofar as the choice of this countrys leaders is concerned. The Constitutional Commission realized that under the laws then existing and considering the novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right to vote would spawn constitutional problems especially because the Constitution itself provides for the residency requirement of voters: MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term absentee voting also includes transient voting; meaning, those who are, let us say, studying in Manila need not go back to their places of registration, for instance, in Mindanao, to cast their votes. MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad. MR. REGALADO. How about those people who cannot go back to the places where they are registered? MR. MONSOD. Under the present Election Code, there are provisions for allowing students and military people who are temporarily in another place to register and vote. I believe that those situations can be covered by the Omnibus Election Code. The reason we want absentee voting to be in the Constitution as a mandate to the legislature is that there could be inconsistency on the residence rule if it is just a question of legislation by Congress. So, by allowing it and saying that this is possible, then legislation can take care of the rest. (Emphasis supplied) Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that could impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for overseas absentee voting. The discussion of the Constitutional Commission on the effect of the residency requirement prescribed by Section 1, Article V of the Constitution on the proposed system of absentee voting for qualified Filipinos abroad is enlightening: MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the exercise of the right of suffrage like having resided in the Philippines for at least one year and in the place where they propose to vote for at least six months preceding the elections. What is the effect of these mandatory requirements on the matter of the exercise of the right of suffrage by the absentee voters like Filipinos abroad? 9 Election Laws Introductory Concepts
THE PRESIDENT. Would Commissioner Monsod care to answer? MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the domicile requirements as well as the qualifications and disqualifications would be the same. THE PRESIDENT. Are we leaving it to the legislature to devise the system? FR. BERNAS. I think there is a very legitimate problem raised there. THE PRESIDENT. Yes. MR. BENGZON. I believe Commissioner Suarez is clarified. FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or the place where they vote in practice; the understanding is that it is flexible. For instance, one might be a resident of Naga or domiciled therein, but he satisfies the requirement of residence in Manila, so he is able to vote in Manila. MR. TINGSON. Madam President, may I then suggest to the Committee to change the word Filipinos to QUALIFIED FILIPINO VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it should be QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the requirement? THE PRESIDENT. What does Commissioner Monsod say? MR. MONSOD. Madam President, I think I would accept the phrase QUALIFIED FILIPINOS ABROAD because QUALIFIED would assume that he has the qualifications and none of the disqualifications to vote. MR. TINGSON. That is right. So does the Committee accept? FR. BERNAS. QUALIFIED FILIPINOS ABROAD? THE PRESIDENT. Does the Committee accept the amendment? MR. REGALADO. Madam President. THE PRESIDENT. Commissioner Regalado is recognized. MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I specifically stated that the National Assembly shall prescribe a system which will enable qualified citizens, temporarily absent from the Philippines, to vote. According to Commissioner Monsod, the use of the phrase absentee voting already took that into account as its meaning. That is referring to qualified Filipino citizens temporarily abroad. MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will leave it up to the legislative assembly, for example, to require where the registration is. If it is, say, members of the diplomatic corps who may be continuously abroad for a long time, perhaps, there can be a system of registration in the embassies. However, we do not like to preempt the legislative assembly. THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to provide a system. MR. MONSOD. Yes. THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for these absentee voters. MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications. THE PRESIDENT. It is just to devise a system by which they can vote. MR. MONSOD. That is right, Madam President. (Emphasis supplied)
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Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the responsibility of devising a system of absentee voting. The qualifications of voters as stated in Section 1 shall remain except for the residency requirement. This is in fact the reason why the Constitutional Commission opted for the term qualified Filipinos abroad with respect to the system of absentee voting that Congress should draw up. As stressed by Commissioner Monsod, by the use of the adjective qualified with respect to Filipinos abroad, the assumption is that they have the qualifications and none of the disqualifications to vote. In fine-tuning the provision on absentee voting, the Constitutional Commission discussed how the system should work: MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case of qualified Filipino citizens residing abroad and exercising their right of suffrage, they can cast their votes for the candidates in the place where they were registered to vote in the Philippines. So as to avoid any complications, for example, if they are registered in Angeles City, they could not vote for a mayor in Naga City. In other words, if that qualified voter is registered in Angeles City, then he can vote only for the local and national candidates in Angeles City. I just want to make that clear for the record. MR. REGALADO. Madam President. THE PRESIDENT. What does Commissioner Regalado say? MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that this envisions Filipinos residing abroad. The understanding in the amendment is that the Filipino is temporarily abroad. He may not be actually residing abroad; he may just be there on a business trip. It just so happens that the day before the elections he has to fly to the United States, so he could not cast his vote. He is temporarily abroad, but not residing there. He stays in a hotel for two days and comes back. This is not limited only to Filipinos temporarily residing abroad. But as long as he is temporarily abroad on the date of the elections, then he can fall within the prescription of Congress in that situation. MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this clarification on record. MR. MONSOD. Madam President, to clarify what we mean by temporarily abroad, it need not be on very short trips. One can be abroad on a treaty traders visa. Therefore, when we talk about registration, it is possible that his residence is in Angeles and he would be able to vote for the candidates in Angeles, but Congress or the Assembly may provide the procedure for registration, like listing ones name, in a registry list in the embassy abroad. That is still possible under the system. FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with this. Suppose we have a situation of a child of a diplomatic officer who reaches the voting age while living abroad and he has never registered here. Where will he register? Will he be a registered voter of a certain locality in the Philippines? MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the registration requirements in an embassy in the United States and his name is then entered in the official registration book in Angeles City, for instance. FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered voter of a locality here. MR. MONSOD. That is right. He does not have to come home to the Philippines to comply with the registration procedure here. FR. BERNAS. So, he does not have to come home. MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more clarifications needed from the body. Also, the Floor Leader is happy to announce that there are no more registered Commissioners to propose amendments. So I move that we close the period of amendments. (Emphasis supplied) It is clear from these discussions of the members of the Constitutional Commission that they intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents domicile of origin is in the Philippines, and consider them qualified as voters for the first time.
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It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions, the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution. That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus: Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional provisions. I think the sponsor and I would agree that the Constitution is supreme in any statute that we may enact. Let me read Section 1, Article V, of the Constitution entitled, Suffrage. It says: Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. Now, Mr. President, the Constitution says, who shall have resided in the Philippines. They are permanent immigrants. They have changed residence so they are barred under the Constitution. This is why I asked whether this committee amendment which in fact does not alter the original text of the bill will have any effect on this? Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is in compliance with the Constitution. One, the interpretation here of residence is synonymous with domicile. As the gentleman and I know, Mr. President, domicile is the intent to return to ones home. And the fact that a Filipino may have been physically absent from the Philippines and may be physically a resident of the United States, for example, but has a clear intent to return to the Philippines, will make him qualified as a resident of the Philippines under this law. This is consistent, Mr. President, with the constitutional mandate that we that Congress must provide a franchise to overseas Filipinos. If we read the Constitution and the suffrage principle literally as demanding physical presence, then there is no way we can provide for offshore voting to our offshore kababayan, Mr. President. Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads: The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. The key to this whole exercise, Mr. President, is qualified. In other words, anything that we may do or say in granting our compatriots abroad must be anchored on the proposition that they are qualified. Absent the qualification, they cannot vote. And residents (sic) is a qualification. I will lose votes here from permanent residents so-called green-card holders, but the Constitution is the Constitution. We cannot compromise on this. The Senate cannot be a party to something that would affect or impair the Constitution. Look at what the Constitution says In the place wherein they propose to vote for at least six months immediately preceding the election. Mr. President, all of us here have run (sic) for office. I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated only by a creek. But one who votes in Makati cannot vote in Pateros unless he resides in Pateros for six months. That is how restrictive our Constitution is. I am not talking even about the Election Code. I am talking about the Constitution. As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he must do so, make the transfer six months before the election, otherwise, he is not qualified to vote. That is why I am raising this point because I think we have a fundamental difference here.
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Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-debated even in the constitutional commission of 1986. And the reason Section 2 of Article V was placed immediately after the six-month/one-year residency requirement is to demonstrate unmistakably that Section 2 which authorizes absentee voting is an exception to the six-month/one-year residency requirement. That is the first principle, Mr. President, that one must remember. The second reason, Mr. President, is that under our jurisprudence and I think this is so well-entrenched that one need not argue about it residency has been interpreted as synonymous with domicile. But the third more practical reason, Mr. President, is, if we follow the interpretation of the gentleman, then it is legally and constitutionally impossible to give a franchise to vote to overseas Filipinos who do not physically live in the country, which is quite ridiculous because that is exactly the whole point of this exercise to enfranchise them and empower them to vote. (Emphasis supplied) Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process, to wit: SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives. which does not require physical residency in the Philippines; and Section 5 of the assailed law which enumerates those who are disqualified, to wit: SEC. 5. Disqualifications. The following shall be disqualified from voting under this Act: a) b) Those who have lost their Filipino citizenship in accordance with Philippine laws; Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country;
c) Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments; d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent. As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is recognized as such in the host country because immigration or permanent residence in another country implies renunciation of ones residence in his country of origin. However, same Section allows an immigrant and permanent resident abroad to register as voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that all citizens of the Philippines not otherwise disqualified by law must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting. Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise.
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To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries, they are presumed to have relinquished their intent to return to this country; thus, without the affidavit, the presumption of abandonment of Philippine domicile shall remain. Further perusal of the transcripts of the Senate proceedings discloses another reason why the Senate required the execution of said affidavit. It wanted the affiant to exercise the option to return or to express his intention to return to his domicile of origin and not to preempt that choice by legislation. Thus: Senator Villar. Yes, we are going back. It states that: For Filipino immigrants and those who have acquired permanent resident status abroad, a requirement for the registration is the submission of a Sworn Declaration of Intent to Return duly sworn before any Philippine embassy or consulate official authorized to administer oath Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn Declaration to include only those who have the intention of returning to be qualified to exercise the right of suffrage? What if the Filipino immigrant has no purpose of returning? Is he automatically disbarred from exercising this right to suffrage? Senator Angara. The rationale for this, Mr. President, is that we want to be expansive and all-inclusive in this law. That as long as he is a Filipino, no matter whether he is a green-card holder in the U.S. or not, he will be authorized to vote. But if he is already a green-card holder, that means he has acquired permanent residency in the United States, then he must indicate an intention to return. This is what makes for the definition of domicile. And to acquire the vote, we thought that we would require the immigrants and the green-card holders . . . Mr. President, the three administration senators are leaving, maybe we may ask for a vote [Laughter]. Senator Villar. For a merienda, Mr. President. Senator Angara. Mr. President, going back to the business at hand. The rationale for the requirement that an immigrant or a greencard holder should file an affidavit that he will go back to the Philippines is that, if he is already an immigrant or a green-card holder, that means he may not return to the country any more and that contradicts the definition of domicile under the law. But what we are trying to do here, Mr. President, is really provide the choice to the voter. The voter, after consulting his lawyer or after deliberation within the family, may decide No, I think we are risking our permanent status in the United States if we file an affidavit that we want to go back. But we want to give him the opportunity to make that decision. We do not want to make that decision for him. (Emphasis supplied) The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified to run for any elective office finds no application to the present case because the Caasi case did not, for obvious reasons, consider the absentee voting rights of Filipinos who are immigrants and permanent residents in their host countries. In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be considered as a qualified citizen of the Philippines abroad upon fulfillment of the requirements of registration under the new law for the purpose of exercising their right of suffrage. It must be emphasized that Section 5(d) does not only require an affidavit or a promise to resume actual physical permanent residence in the Philippines not later than three years from approval of his/her registration, the Filipinos abroad must also declare that they have not applied for citizenship in another country. Thus, they must return to the Philippines; otherwise, their failure to return shall be cause for the removal of their names from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. Thus, Congress crafted a process of registration by which a Filipino voter permanently residing abroad who is at least eighteen years old, not otherwise disqualified by law, who has not relinquished Philippine citizenship and who has not actually abandoned his/her intentions to return to his/her domicile of origin, the Philippines, is allowed to register and vote in the Philippine embassy, consulate or other foreign service establishments of the place which has jurisdiction over the country where he/she has indicated his/her address for purposes of the elections, while providing for safeguards to a clean election. Thus, Section 11 of R.A. No. 9189 provides: SEC. 11. Procedure for Application to Vote in Absentia.
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11.1. Every qualified citizen of the Philippines abroad whose application for registration has been approved, including those previously registered under Republic Act No. 8189, shall, in every national election, file with the officer of the embassy, consulate or other foreign service establishment authorized by the Commission, a sworn written application to vote in a form prescribed by the Commission. The authorized officer of such embassy, consulate or other foreign service establishment shall transmit to the Commission the said application to vote within five (5) days from receipt thereof. The application form shall be accomplished in triplicate and submitted together with the photocopy of his/her overseas absentee voter certificate of registration. 11.2. Every application to vote in absentia may be done personally at, or by mail to, the embassy, consulate or foreign service establishment, which has jurisdiction over the country where he/she has indicated his/her address for purposes of the elections. 11.3. Consular and diplomatic services rendered in connection with the overseas absentee voting processes shall be made available at no cost to the overseas absentee voter. Contrary to petitioners claim that Section 5(d) circumvents the Constitution, Congress enacted the law prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the qualified citizen of the Philippines abroad is not physically present in the country. The provisions of Sections 5(d) and 11 are components of the system of overseas absentee voting established by R.A. No. 9189. The qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his physical absence from this country. His having become an immigrant or permanent resident of his host country does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the opportunity to express that he has not actually abandoned his domicile in the Philippines by executing the affidavit required by Sections 5(d) and 8(c) of the law. Petitioners speculative apprehension that the implementation of Section 5(d) would affect the credibility of the elections is insignificant as what is important is to ensure that all those who possess the qualifications to vote on the date of the election are given the opportunity and permitted to freely do so. The COMELEC and the Department of Foreign Affairs have enough resources and talents to ensure the integrity and credibility of any election conducted pursuant to R.A. No. 9189. As to the eventuality that the Filipino abroad would renege on his undertaking to return to the Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d) would suffice to serve as deterrence to non-compliance with his/her undertaking under the affidavit. Petitioner argues that should a sizable number of immigrants renege on their promise to return, the result of the elections would be affected and could even be a ground to contest the proclamation of the winning candidates and cause further confusion and doubt on the integrity of the results of the election. Indeed, the probability that after an immigrant has exercised the right to vote, he shall opt to remain in his host country beyond the third year from the execution of the affidavit, is not farfetched. However, it is not for this Court to determine the wisdom of a legislative exercise. As expressed in Taada vs. Tuvera, the Court is not called upon to rule on the wisdom of the law or to repeal it or modify it if we find it impractical. Congress itself was conscious of said probability and in fact, it has addressed the expected problem. Section 5(d) itself provides for a deterrence which is that the Filipino who fails to return as promised stands to lose his right of suffrage. Under Section 9, should a registered overseas absentee voter fail to vote for two consecutive national elections, his name may be ordered removed from the National Registry of Overseas Absentee Voters. Other serious legal questions that may be raised would be: what happens to the votes cast by the qualified voters abroad who were not able to return within three years as promised? What is the effect on the votes cast by the non-returnees in favor of the winning candidates? The votes cast by qualified Filipinos abroad who failed to return within three years shall not be invalidated because they were qualified to vote on the date of the elections, but their failure to return shall be cause for the removal of the names of the immigrants or permanent residents from the National Registry of Absentee Voters and their permanent disqualification to vote in absentia. In fine, considering the underlying intent of the Constitution, the Court does not find Section 5(d) of R.A. No. 9189 as constitutionally defective. B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in contravention of Section 4, Article VII of the Constitution? Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president, vice-president, senators and party-list representatives. Section 18.5 of the same Act provides: Election Laws Introductory Concepts
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SEC. 18. On-Site Counting and Canvassing. ... ... ...
18. 5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the election will not be affected by the results thereof. Notwithstanding the foregoing, the Commission is empowered to order the proclamation of winning candidates despite the fact that the scheduled election has not taken place in a particular country or countries, if the holding of elections therein has been rendered impossible by events, factors and circumstances peculiar to such country or countries, in which events, factors and circumstances are beyond the control or influence of the Commission. (Emphasis supplied) Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to order the proclamation of winning candidates insofar as it affects the canvass of votes and proclamation of winning candidates for president and vice-president, is unconstitutional because it violates the following provisions of paragraph 4, Section 4 of Article VII of the Constitution: SEC. 4 . . . The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates. ... which gives to Congress the duty to canvass the votes and proclaim the winning candidates for president and vice-president. The Solicitor General asserts that this provision must be harmonized with paragraph 4, Section 4, Article VII of the Constitution and should be taken to mean that COMELEC can only proclaim the winning Senators and party-list representatives but not the President and Vice-President. Respondent COMELEC has no comment on the matter. Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too sweeping that it necessarily includes the proclamation of the winning candidates for the presidency and the vice-presidency. Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Constitution only insofar as said Section totally disregarded the authority given to Congress by the Constitution to proclaim the winning candidates for the positions of president and vice-president. In addition, the Court notes that Section 18.4 of the law, to wit: 18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special Board of Canvassers shall transmit via facsimile, electronic mail, or any other means of transmission equally safe and reliable the Certificates of Canvass and the Statements of Votes to the Commission, . . . [Emphasis supplied] clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the returns of every election for President and Vice-President shall be certified by the board of canvassers to Congress. Congress could not have allowed the COMELEC to usurp a power that constitutionally belongs to it or, as aptly stated by petitioner, to encroach on the power of Congress to canvass the votes for president and vice-president and the power to proclaim the winners for the said positions. The provisions of the Constitution as the fundamental law of the land should be read as part of The Overseas Absentee Voting Act of 2003 and hence, the canvassing of the votes and the proclamation of the winning candidates for president and vice-president for the entire nation must remain in the hands of Congress.
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C.
Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common Provisions) of the Constitution, to wit: Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit. (Emphasis supplied) He submits that the creation of the Joint Congressional Oversight Committee with the power to review, revise, amend and approve the Implementing Rules and Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into the independence of the COMELEC which, as a constitutional body, is not under the control of either the executive or legislative departments of government; that only the COMELEC itself can promulgate rules and regulations which may be changed or revised only by the majority of its members; and that should the rules promulgated by the COMELEC violate any law, it is the Court that has the power to review the same via the petition of any interested party, including the legislators. It is only on this question that respondent COMELEC submitted its Comment. It agrees with the petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the petitioner, respondent COMELEC anchors its claim of unconstitutionality of said Sections upon Section 1, Article IX-A of the Constitution providing for the independence of the constitutional commissions such as the COMELEC. It asserts that its power to formulate rules and regulations has been upheld in Gallardo vs. Tabamo, Jr. where this Court held that the power of the COMELEC to formulate rules and regulations is implicit in its power to implement regulations under Section 2(1) of Article IX-C of the Constitution. COMELEC joins the petitioner in asserting that as an independent constitutional body, it may not be subject to interference by any government instrumentality and that only this Court may review COMELEC rules and only in cases of grave abuse of discretion. The COMELEC adds, however, that another provision, vis--vis its rule-making power, to wit: SEC. 17. Voting by Mail. 17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries, subject to the approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following conditions: a) b) Where the mailing system is fairly well-developed and secure to prevent occasion for fraud; Where there exists a technically established identification system that would preclude multiple or proxy voting; and
c) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned are adequate and well-secured. Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Congressional Oversight Committee. ... ... . . . (Emphasis supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence of constitutional commissions. The Solicitor General takes exception to his prefatory statement that the constitutional challenge must fail and agrees with the petitioner that Sections 19 and 25 are invalid and unconstitutional on the ground that there is nothing in Article VI of the Constitution on Legislative Department that would as much as imply that Congress has concurrent power to enforce and administer election laws with the COMELEC; and by the principles of exclusio unius est exclusio alterius and expressum facit cessare tacitum, the constitutionally enumerated powers of Congress circumscribe its authority to the exclusion of all others. The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are unconstitutional. Thus, there is no actual issue forged on this question raised by petitioner. However, the Court finds it expedient to expound on the role of Congress through the Joint Congressional Oversight Committee (JCOC) vis--vis the independence of the COMELEC, as a constitutional body. R.A. No. 9189 created the JCOC, as follows:
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SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional Oversight Committee is hereby created, composed of the Chairman of the Senate Committee on Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators designated by the Senate President, and the Chairman of the House Committee on Suffrage and Electoral Reforms, and seven (7) other Members of the House of Representatives designated by the Speaker of the House of Representatives: Provided, That, of the seven (7) members to be designated by each House of Congress, four (4) should come from the majority and the remaining three (3) from the minority. The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the implementation of this Act. It shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission. (Emphasis supplied) SEC. 19. Authority of the Commission to Promulgate Rules. The Commission shall issue the necessary rules and regulations to effectively implement the provisions of this Act within sixty (60) days from the effectivity of this Act. The Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval. ... ... . . . (Emphasis supplied)
Composed of Senators and Members of the House of Representatives, the Joint Congressional Oversight Committee (JCOC) is a purely legislative body. There is no question that the authority of Congress to monitor and evaluate the implementation of R.A. No. 9189 is geared towards possible amendments or revision of the law itself and thus, may be performed in aid of its legislation. However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the JCOC the following functions: (a) to review, revise, amend and approve the Implementing Rules and Regulations (IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to the approval of the JCOC [Section 17.1], the voting by mail in not more than three countries for the May 2004 elections and in any country determined by COMELEC. The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional commissions such as the COMELEC shall be independent. Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an independent COMELEC, the Court has held that [w]hatever may be the nature of the functions of the Commission on Elections, the fact is that the framers of the Constitution wanted it to be independent from the other departments of the Government. In an earlier case, the Court elucidated: The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may err, so may this court also. It should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was created free, orderly and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions. (Emphasis supplied) The Court has no general powers of supervision over COMELEC which is an independent body except those specifically granted by the Constitution, that is, to review its decisions, orders and rulings. In the same vein, it is not correct to hold that because of its recognized extensive legislative power to enact election laws, Congress may intrude into the independence of the COMELEC by exercising supervisory powers over its rule-making authority. By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to issue the necessary rules and regulations to effectively implement the provisions of this Act within sixty days from the effectivity of this Act. This provision of law follows the usual procedure in drafting rules and regulations to implement a law the legislature grants an administrative agency the authority to craft the rules and regulations implementing the law it has enacted, in recognition of the administrative expertise of that agency in its particular field of operation. Once a law is enacted and approved, the legislative function is deemed accomplished and complete. The legislative function may spring back to Congress relative to the same law only if that body deems it proper to review, amend and revise the law, but certainly not to approve, review, revise and amend the IRR of the COMELEC. By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of independence of 18 Election Laws Introductory Concepts
the COMELEC. Under such a situation, the Court is left with no option but to withdraw from its usual reticence in declaring a provision of law unconstitutional. The second sentence of the first paragraph of Section 19 stating that [t]he Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval, and the second sentence of the second paragraph of Section 25 stating that [i]t shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission, whereby Congress, in both provisions, arrogates unto itself a function not specifically vested by the Constitution, should be stricken out of the subject statute for constitutional infirmity. Both provisions brazenly violate the mandate on the independence of the COMELEC. Similarly, the phrase, subject to the approval of the Congressional Oversight Committee in the first sentence of Section 17.1 which empowers the Commission to authorize voting by mail in not more than three countries for the May, 2004 elections; and the phrase, only upon review and approval of the Joint Congressional Oversight Committee found in the second paragraph of the same section are unconstitutional as they require review and approval of voting by mail in any country after the 2004 elections. Congress may not confer upon itself the authority to approve or disapprove the countries wherein voting by mail shall be allowed, as determined by the COMELEC pursuant to the conditions provided for in Section 17.1 of R.A. No. 9189. Otherwise, Congress would overstep the bounds of its constitutional mandate and intrude into the independence of the COMELEC. During the deliberations, all the members of the Court agreed to adopt the separate opinion of Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of and the powers given to the Joint Congressional Oversight Committee. WHEREFORE, the petition is partly GRANTED. UNCONSTITUTIONAL: The following portions of R.A. No. 9189 are declared VOID for being
a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: subject to the approval of the Joint Congressional Oversight Committee; b) The portion of the last paragraph of Section 17.1, to wit: only upon review and approval of the Joint Congressional Oversight Committee; c) The second sentence of the first paragraph of Section 19, to wit: The Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval; and d) The second sentence in the second paragraph of Section 25, to wit: It shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission of the same law; for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence of constitutional commission, such as COMELEC. The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the authority given to the COMELEC to proclaim the winning candidates for the Senators and party-list representatives but not as to the power to canvass the votes and proclaim the winning candidates for President and Vice-President which is lodged with Congress under Section 4, Article VII of the Constitution. The constitutionality of Section 5(d) is UPHELD. Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in full force and effect. SO ORDERED. CONCURRING AND DISSENTING OPINION PUNO, J.: With all due respect, I would like to offer my humble views on the constitutional issues presented by the petitioner, viz: A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or permanent residents in other countries by their mere act of executing an affidavit expressing their intention to return to the Philippines, violate the residency requirement in Section 1 of Article IV of the Constitution? Election Laws Introductory Concepts
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B.
Does Section 18. 5 of the same law empowering the COMELEC to proclaim the winning candidates for national offices and party-list representatives including the President and the Vice-President violate the constitutional mandate under Section 4, Article VII of the Constitution that the winning candidates for President and Vice-President shall be proclaimed as winners by Congress? May Congress, through the Joint Congressional Oversight Committee created in Section 25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and approve the Implementing Rules and Regulations that the Commission on Elections shall promulgate without violating the independence of the COMELEC under Section 1, Article IX-A of the Constitution?
C.
To start off, let me stress the significance of the case at bar. Rep. Act No. 9189, otherwise known as The Overseas Absentee Voting Act of 2003 is a historic attempt to translate to reality a long awaited dream: the enfranchisement of millions of overseas Filipinos. Undoubtedly, the efforts of Congress to give flesh to section 2, Article V of the 1987 Constitution mandating it to devise a system for absentee voting for qualified Filipinos abroad, deserves the highest commendation. However, Rep. Act No. 9189 poses far reaching constitutional issues that merit more than an invocation of abstract legal principles or a simplistic construction of the Constitution. For one, the petition affects the value of the right of suffrage, a right that is the cornerstone of our democratic government. It is the responsibility of this Court to strike a balance between the need to expand the right of suffrage in favor of those who cannot exercise it and the need to prevent the dilution of the right of suffrage of those already exercising it. For another, the petition compels this Court to define the extent and the limits of Congress oversight powers or legislative veto over subordinate legislations or the rules and regulations promulgated by administrative agencies of government. Undoubtedly, this oversight power is indispensable for Congress to discharge its broad power to legislate. Thus, it again behooves this Court to draw the precise parameters of the oversight power sought to be exercised by Congress to preserve the delicate balance of powers allocated to the different branches of our government in the Constitution. Prescinding from these premises, let me discuss the issues in seriatim. A. Does section 5 (d) of Rep. Act No. 9189 violate section 1, Article V of the 1987 Constitution? Petitioner submits that section 5, par. (d) of Rep. Act No. 9189 is unconstitutional for it allows immigrants or permanent residents of foreign countries to vote for President, Vice-President, Senators, and party-list representatives by mere execution of an affidavit stating that: (a) he shall resume actual, physical, permanent residence in the Philippines not later than three (3) years from approval of his registration; and (b) that he has not applied for citizenship in another country, viz: Sec. 5. Disqualifications.- The following shall be disqualified from voting under this Act. (d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. (emphasis ours) Petitioner also contends that section 2, Article V of the 1987 Constitution limits the authority of Congress to provide a system for absentee voting to those Filipinos who are temporarily absent in the Philippines but otherwise satisfy the requirements under section 1 thereof, including the one year residence in the Philippines and six months residence in the place where they propose to vote. Citing our ruling in Caasi v. Court of Appeals, the petitioner avers that a Filipino who is an acknowledged immigrant or permanent resident of a foreign country does not possess the necessary residence requirements as he is deemed to have already abandoned his domicile in the Philippines. He alleges that the challenged provision amends or alters the residence requirements by granting conditional residence qualification to an immigrant or permanent resident or through the execution of an affidavit. The majority, thru our esteemed colleague, Madam Justice Martinez, rules that section 2, Article V of the 1987 Constitution mandating Congress to devise a system for overseas absentee voting operates as an exception to the residence requirements as the members of the Constitutional Commission manifested a clear intent to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin, viz: By the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions, the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency 20 Election Laws Introductory Concepts
requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy residency requirement in Section 1, Article V of the Constitution. (emphases ours) The majority further holds that if actual physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting. The majority affirms our ruling in Caasi v. Court of Appeals that an immigrant or permanent resident of a foreign country is deemed to have relinquished his residence in his country of origin. However, it rules that this presumption is overturned by the execution of the affidavit required under the challenged provision of Rep. Act No. 9189. Allegedly, the affidavit is an explicit expression that an immigrant or permanent resident has not relinquished his domicile in the Philippines, to wit: Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residence in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise. To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries, they are presumed to have relinquished their intent to return to this country; thus, without the affidavit, the presumption of abandonment of Philippine domicile shall remain. (emphases ours) The majority further rules that the act of the immigrant or permanent resident in executing an affidavit pursuant to section 5(d) may be considered as an express waiver of his status as an immigrant or permanent resident. Thus, the majority concludes that section 5(d) of Rep. Act No. 9189 is not unconstitutional. With all due respect, I disagree with the majority. But before discussing the reasons for my dissent, let me put the issue in its proper historical perspective. Suffrage is an attribute of citizenship and is ancillary to the principle of republicanism enshrined in section 1, Article II of the 1987 Constitution. The right of suffrage, however, is not absolute. No political system in the whole world has literally practiced universal suffrage, even among its citizens. The scarlet history of the right of suffrage shows that restrictions have always been imposed on its exercise. In England, for instance, suffrage originated as a political privilege granted to land owners by the monarchs. The grant aros e from the theory that in the formation of the state, the people agreed to surrender to the King all political sovereignty. In return, the King extended suffrage to the freeholders as a vested right. The origin and character of suffrage in England is chronicled by Chief Justice Holt in Ashby v. White, et al., viz: The election of knights belongs to the freeholders of the counties, and it is an original right vested in and inseparable from the freehold, and can be no more severed from the freehold than the freehold itself can be taken away. Before the statute of 8 Hen. 6, ch. 7, any man that had a freehold, though never so small, had a right of voting; but by that statute the right of election is confined to such persons as have lands or tenements to the yearly value of forty shillings at least, because, as the statute says, of the tumults and disorders which happened at elections by the excessive and outrageous number of electors; but still the right of election is an original incident to and inseparable from freehold. As for citizens and burgesses, they depend on the same rights as the knights of shires differ only as to the tenure; but the right and manner of their election is on the same foundation. The economic theory of suffrage is also evident in the early history of the United States. The 1787 U.S. Constitution, as originally adopted, did not expressly provide the right to vote. The States were left to determine who should have the right to vote in national as well as local elections. Most States restricted the right of suffrage to white males over twenty-one years of age with a certain amount of property. Other States also required religious, literacy, and moral qualifications. Some legal scholars, however, contend that the right of suffrage is presumed from the provision of the Constitution guaranteeing each state a republican form of government. Veering away from the economic theory of suffrage prevalent in England, these scholars argue that in forming the state, the people did not give up all their sovereign powers but merely delegated the exercise of these powers to some chosen representatives. The right of suffrage is one of these delegated powers, viz: The people, in their original sovereign character are the fountainhead of governmental authority, and all the powers necessary to be exercised in the continued administration of a representative government originated and are delegated by exertion of their sovereign will. These propositions, founded on necessity, and illustrated by long continued practice, have become the received doctrines of the American people The people, in clothing a citizen with the elective franchise for the purpose of securing a consistent and perpetual administration of the government they ordain, charge him with the performance of a duty in the nature of a public trust, and in that 21 Election Laws Introductory Concepts
respect constitute him a representative of the whole people. This duty requires that the privilege thus bestowed should be exercised, not exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intelligent zeal for the general benefit and welfare of the State As a privilege delegated by the people, a citizen acquires no indefeasible right to the continuous exercise or enjoyment of the right of suffrage. The people of the State, in the exercise of their sovereign power, may disqualify, suspend or entirely withdraw it from any citizen or class of them, providing always that representation of the people, the essential characteristics of a republican government, be not disregarded or abandoned. Following the shift in its theoretical basis, the right of suffrage was extended to broader classes of citizens. In 1870, the Fifteenth Amendment was enacted prohibiting the federal government and the states from discriminating on the basis of race, color or previous conditions of servitude. In 1920, the Nineteenth Amendment was ratified providing that the right of citizens to vote shall not be denied or abridged by the United States or by any State on account of sex. In 1964, the Twenty-fourth Amendment was adopted providing that the right of any citizen to vote for President, Vice-President or members of Congress shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. In 1971, the Twenty-sixth Amendment was passed providing that the right of any citizen eighteen years or older to vote shall not be denied or abridged by the United States or by any State on account of age. In our jurisdiction, the right of suffrage has evolved from a mere statutory right to a constitutional right. Our first election law was Act No. 1582, which took effect on January 15, 1907. We had no elections during the Spanish occupation of the country. Like its foreign counterparts, the qualifications for the exercise of the right of suffrage set in section 14 of Act No. 1582 were elitist and gender-biased. The right of suffrage was limited to male citizens twenty-three years of age or over with legal residence for a period of six months immediately preceding the election in the municipality in which they exercise the right of suffrage. Women were not allowed to vote for they were regarded as mere extensions of the personality of their husbands or fathers, and that they were not fit to participate in the affairs of government. But even then, not all male citizens were deemed to possess significant interests in election and the ability to make intelligent choices. Thus, only those falling under any of the following three classes were allowed to vo te: (a) those who, prior to the August 13, 1898, held office of municipal captain, governadorcillo, alcalde, lieutenant, cabeza de barangay, or member of any ayuntamiento; (b) those who own real property with the value of five hundred pesos or who annually pay thirty pesos or more of the established taxes; or (c) those who speak, read and write English or Spanish. But apart from possessing the necessary qualifications, a voter must not suffer from any disqualification. We elaborated the reasons for setting disqualifications for the exercise of the right of suffrage in People v. Corral, viz: The modern conception of suffrage is that voting is a function of government. The right to vote is not a natural right but it is a right created by law. Suffrage is a privilege granted by the State to such persons or classes as are most likely to exercise it for the public good. In the early stages of the evolution of the representative system of government, the exercise of the right of suffrage was limited to a small portion of the inhabitants. But with the spread of democratic ideas, the enjoyment of the franchise in the modern states has come to embrace the mass of the adult male population. For reasons of public policy, certain classes of persons are excluded from the franchise. Among the generally excluded classes are minors, idiots, paupers, and convicts. The right of the State to deprive persons of the right of suffrage by reason of their having been convicted of crime, is beyond question. The manifest purpose of such restrictions upon this right is to preserve the purity of elections. The presumption is that one rendered infamous by conviction of felony, or other base offenses indicative of moral turpitude, is unfit to exercise the privilege of suffrage or to hold office. The exclusion must for this reason be adjudged a mere disqualification, imposed for protection and not for punishment, the withholding of a privilege and not the denial of a personal right. On November 9, 1933, the Philippine Legislature enacted Act No. 4122 extending the right of suffrage to Filipino women starting January 1, 1935. However, before they could exercise their new right, the 1935 Constitution was adopted, once again, limiting the right of suffrage to male citizens, viz: Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election. The National Assembly shall extend the right of suffrage to women, if in a plebiscite which shall be held for that purpose within two years after the adoption of this Constitution, not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question. During the deliberations of the Constitutional Convention, it was conceded that Filipino women were capable of exercising the right of suffrage. Their right, however, was opposed on the following grounds: (1) there was no popular demand for suffrage by Filipino women themselves; (2) woman suffrage would only disrupt family unity; and (3) it would plunge women into the quagmire of politics, dragging them from the pedestal of honor in which they had theretofore been placed. Thus, in its report to the President of the Convention on September 24, 1934, the Committee on Suffrage said: 22 Election Laws Introductory Concepts
The committee refrains from stating in this report the reasons on which it bases its decision to withdraw the right of suffrage from the women and will merely say that the principal idea in the minds of the members not in favor of extending suffrage to women was that the sweet womanliness of the Philippine women should be projected from political strife and passion in order that sweet home may not lose any of its sweetness. The proponents of woman suffrage in reply argued that it would be unfair to deprive Filipino women of the right of suffrage already granted to them by the legislature without giving them the chance to prove whether they deserved it or not. They also submitted that the right would make them more interested in the management of the affairs of government and that it was necessary as a matter of justice to extend the frontiers of our democracy to our women who had labored hard side by side with our men for the progress and development of the country. In a last ditch attempt to save the cause of woman suffrage, women leaders distributed a petition to individual delegates that reads: We, the undersigned, duly elected representatives of women who believe in the justice and wisdom of the enfranchisement of the Filipino women, protest most solemnly against women being deprived of the vote in the Constitution of the Commonwealth and against any change in the existent Law, No. 4112, passed by the Ninth Philippine Legislature on November ninth, 1933, and signed by Governor-General Frank Murphy on December seventh, 1934. We call the attention of the Constitutional Assembly and the Legislature to the plea for liberty made before the Congress and the President of United States for thirty-seven years by the Filipinos; a plea based on the fact that we are a liberty-loving people equipped and capable of self-government. Such government cannot exist half-slave and half-free. The women of this Christian land, serene in the knowledge that in peace or war they have never failed their men or their country, in this crucial hour of the realization of the sacrifice and devotion of the years, insist upon their political recognition and their share in the triumph of the cause of liberty. It is not a matter of plebiscite nor specific numbers. It is a right earned, deserved and therefore claimed. It is not a matter of sex. In a democratic government all qualified citizens, men and women alike, can and should make their valuable contribution in deciding what their community will undertake to do through its government, by what means, and through what officials. Under the law women suffer penalties, are summoned before the courts by law- laws they have had no voice in making- and pay taxes. Taxation without representation is tyranny and more so in 1934 than in 1776. So confident of the unalterable righteousness of this cause, to you, gentlemen of the Constitutional Assembly, we appeal for justice believing and knowing that our cause is a just one, and that our rights have been won thru years of sacrifice, devotion and service to our common cause- the cause of men and women alike- the welfare and progress of our native land- the Philippines. In the end, a compromise was reached limiting the right of suffrage to male citizens and leaving the issue of women suffrage for the women to decide. In the plebiscite held on April 30, 1937, more than three hundred thousand women voted for woman suffrage. Thenceforth, Filipino women were allowed to vote, thus, paving the way for women participation in the government. To broaden the mass base of voters, the 1935 Constitution lowered the age requirement from 23 years to 21 years. The literacy requirement was also relaxed. It is to be noted that from the opening days of the Convention, there was a prevalent sentiment among the delegates to bar illiterates from exercising the right of suffrage. It was proposed that only those who can read and write English, Spanish, or other local dialects should be allowed to vote. This proposal was defeated for the drafters felt that while the ability to read and write was necessary, the specification of any language or dialect would be discriminatory against the Mohammedans: It is discriminatory against a respectable minority of the population of the Philippines. It would serve to discriminate against the Mohammedan population of the Philippines for which I am one of the humble representatives. It is the opinion of this Convention, I think, to emancipate, to enfranchise our backward elements, especially the Mohammedan population. And you would like to curtail that right and that privilege by inserting a provision that only those who can read and write either English, Spanish, or any of the local dialects shall be allowed to vote. This amendment would preclude the Mohammedans because their Arabic writing is not included under local dialects. Because when you say, local dialects, you refer to the dialect and not to the system of writing. The system of writing is either Arabic or Roman. In view of this fact, Mr. President, I hope that you will be liberal and tolerant enough to reject this proposed amendment because it is unnecessary and because it is discriminatory. Furthermore, the 1935 Constitution removed the property qualifications under Act No. 1582. We explained the reason for this removal in Maquera v. Borra, viz: property qualifications are inconsistent with the nature and essence of the republican system ordained in our constitution and the principle of social justice underlying the same, for said political system is premised upon the tenet that sovereignty resides in the people and all government authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be voted for shall not be dependent upon the wealth of the individual concerned, whereas social justice presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no person shall by reason of poverty, be denied the chance to be elected to the public office.
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In sum, the 1935 Constitution gave a constitutional status to the right of suffrage. Thus, suffrage is not anymore a privilege granted by the legislature, but a right granted by the sovereign people to a definite portion of the population possessing certain qualifications. To be sure, the right of suffrage was still subject to regulation by the legislature but only in accordance with the terms of the Constitution. The march towards liberalization of the right of suffrage continued with the 1973 Constitution. The literacy requirement was removed while the age bar was further lowered from 21 years to 18 years. Thus, section 1, Article VI of the 1973 Constitution reads: Section 1. Suffrage shall be exercised by citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election. No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage. The National Assembly shall provide a system for the purpose of securing the secrecy and sanctity of the vote. (emphasis ours) The rationale for these changes was expressed in the Explanatory Note of Resolution No. 03 of the Committee on Suffrage and Electoral Reforms, viz: In keeping with the trend for the broadening of the electoral base already begun with the lowering of the voting age to 18 and in keeping with the committees desire to continue the alienation and exclusion of millions of citizens from the political system and from participation in the political life in the country, the requirement of literacy for voting has been eliminated. It is noted that there are very few countries left in the world where literacy remains a condition for voting. There is no Southeast Asian country that imposes this requirement. The United States Supreme Court only a few months ago declared unconstitutional any state law that would continue to impose this requirement for voting. Although there were more resolutions submitted proposing the increase of educational requirements for voting than those advocating the elimination of the literacy requirement, the committee felt that favoring the elimination of the requirement would be more in keeping with its objective and that of the Constitutional Convention encouraging popular participation and equalizing the privileges and rights of the people According to the Bureau of Census and Statistics, the projection for the population of the Philippines over 18 years old for 1970 is 17,659,000. Of this, 12,384,000 are considered literates. However, the same Bureau admitted that there is no real scientific literacy test in counting literates. All that is done is to ask each member of the population the question whether he is able to read and write and to take his answer at its face value. These circumstances plus the well-known practice in all elections in which political leaders spend their time in the barrios showing the prospective voters to write the name of the candidates instead of explaining the political issues to them, strengthened the conviction of the committee that present literacy requirement is more of a joke, and worse, a deterrent to intelligent discussions of the issues. Finally, the committee took note of the convincing argument that the requirement to read and write was written into our constitution at a time when the only medium of information was the printed word and even the public meetings were not as large and successful because of the absence of amplifying equipment. It is a fact that today the vast majority of the population learn about national matters much more from the audio-visual media, namely, radio and television, and public meetings have become much more effective since the advent of amplifying equipment. In addition, the 1973 Constitution provided that no property or other substantive requirement shall be imposed on the exercise of suffrage. The 1987 Constitution further liberalized the right of suffrage. For the first time, it required Congress to provide a system for absentee voting by qualified Filipinos abroad and to design a procedure for the disabled and the illiterates to vote without assistance from other persons. Be that as it may, four qualifications existing since the 1935 Constitution were retained: (1) Filipino citizenship; (2) age; (3) one year residence in the Philippines; and (4) six months residence in the place where the voter proposes to vote. The wisdom of these four qualifications has not been questioned at any given time in the history of our suffrage. It is easy to see the reason. Suffrage is a political right appertaining to citizenship. Each individual qualified to vote is a particle of popular sovereignty, hence, the right of suffrage cannot be extended to non-citizens. As an attribute of citizenship, suffrage is reserved exclusively to Filipinos whose allegiance to the country is undivided. It is also conceded that the right of suffrage can be exercised only by persons of a certain age. Nobody could doubt the reason for preventing minors from taking part in the political exercise. Voting is an act of choice and involves prescience. It requires not only a familiarity of political realities but also the maturity to make reasoned choices out of these realities. But citizenship and age requirements are not enough. For the vote to be more meaningful as an expression of sovereignty, the voter must possess more than a passing acquaintance with the problems and prospects of the country. Thus, residence is imposed as a qualification to exclude a stranger and a newcomer, unacquainted with the conditions and needs of the community and not identified 24 Election Laws Introductory Concepts
with the latter. The residence requirement is also necessary for administrative purposes such as the preparation of accurate list of voters. I now come to the case at bar. The first issue is whether section 5(d) of Rep. Act No. 9189 extending the right of suffrage to Filipinos who are immigrants or permanent residents of foreign countries is unconstitutional. To resolve this issue, the following need to be addressed: (1) whether section 2, Article V of the Constitution dispenses with the residence requirements prescribed in section 1 thereof; (2) whether an immigrant or a permanent resident satisfies the residence requirements; (3) whether the execution of an affidavit is sufficient proof of non-abandonment of residence in the Philippines; and (4) whether the system provided in section 5(d) of Rep. Act No. 9189 will dilute the right of suffrage of other Filipino voters who possess the full residence qualifications under section 1, Article VI of the Constitution. (1) Whether section 2 of Article V dispenses with the residence requirements prescribed in section 1 of the same Article.
Section 1, Article V of the 1987 Constitution prescribes two residence qualifications: (a) one year residence in the Philippines; and (2) six months residence in the locality where the voter proposes to vote. In its ordinary conception, residence connotes the actual relationship of an individual to a specific place. To be a resident, physical presence of a person in a given area, community or country is required. Even before the adoption of the 1935 Constitution, jurisprudence has equated the first residence requirement (one year residence in the Philippines) with domicile or legal residence. Domicile in turn has been defined as an individual's permanent home or the place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent." The domicile of a person is determined by the concurrence of the following elements: (1) the fact of residing or physical presence in a fixed place; and (2) animus manendi, or the intention of returning there permanently. The mere absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of domicile. The second residence requirement (six months residence in the place the voter proposes to vote) refers to either the voters domicile or to his temporary residence. A voter who is domiciled in a particular locality but has resided for six months in another locality may register and vote in either locality, but not in both. To be sure, a person fulfilling the first residence requirement also fulfills the second so long as the voter registers in his established domicile. The second residence requirement is relevant for two purposes: (1) the determination of the place where the voter will register, and (2) the determination of the place where the voter will vote. It ought to be noted that as a general rule, a person should register and vote in the place where he has established his domicile or the place where he has resided for six months. The intent of the members of the Constitutional Commission to apply the residence requirements to absentee voters is evident from its deliberations. They precisely used the phrase QUALIFIED FILIPINOS ABROAD to stress that the absentee voter must have all the qualifications in section 1, Article VI of the Constitution, viz: MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the exercise of the right of suffrage like having resided in the Philippines for at least one year and in the place where they propose to vote for at least six months preceding the elections. What is the effect of these mandatory requirements on the matter of the exercise of the right of suffrage by the absentee voters like Filipinos abroad? THE PRESIDENT. Would Commissioner Monsod care to answer? MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the domicile requirements as well as the qualifications and disqualifications would be the same. THE PRESIDENT. Are we leaving it to the legislature to devise the system? FR. BERNAS. I think there is a very legitimate problem raised there. THE PRESIDENT. Yes. MR. BENGZON. I believe Commissioner Suarez is clarified. FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or the place where they vote in practice; the understanding is that it is flexible. For instance, one might be a resident of Naga or domiciled therein, but he satisfies the requirement of residence in Manila, so he is able to vote in Manila.
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MR. TINGSON. Madam President, may I suggest to the Committee to change the word Filipinos to QUALIFIED FILIPINO VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it should be QUALFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the requirement? THE PRESIDENT. What does Commissioner Monsod say? MR. MONSOD. Madam President, I think I would accept the phrase QUALIFIED FILIPINOS ABROAD because QUALIFIED would assume that he has the qualifications and none of the disqualifications to vote. MR. TINGSON. That is right. So does the Committee accept? FR. BERNAS. QUALIFIED FILIPINOS ABROAD? THE PRESIDENT. Does the Committee accept the amendment? MR. REGALADO. Madam President. THE PRESIDENT. Commissioner Regalado is recognized. MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I specifically stated that the National Assembly shall prescribe a system which will enable qualified citizens, temporarily absent from the Philippines, to vote. According to Commissioner Monsod, the use of the phrase absentee voting already took into account as its meaning. That is referring to qualified Filipino citizens temporarily abroad. MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will leave it up to the legislative assembly, for example, to require where the registration is. If it is, say, members of the diplomatic corps who may be continuously abroad for a long time, perhaps, there can be a system of registration in the embassies. However, we do not like to preempt the legislative assembly. THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to provide a system. MR. MONSOD. Yes. THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for these absentee voters. MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications. THE PRESIDENT. It is just to devise a system by which they can vote. MR. MONSOD. That is right, Madam President. In the course of the deliberations, Fr. Bernas perceived a problem that may arise from the meaning of the second residence requirement on the place of registration and voting. As noted, a qualified voter normally registers and votes in the place where he is domiciled or has resided for six months. Fr. Bernas feared that the second residence requirement may pose a constitutional obstacle to absentee voting unless the vote of the person who is absent is a vote which will be considered as cast in the place of his domicile, viz: MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has a residential restriction, is not denied to citizens temporarily residing or working abroad. Based on the statistics of the government agencies, there ought to be about two million such Filipinos at this time. Commissioner Bernas had earlier pointed out that these provisions are really lifted from the two previous Constitutions of 1935 and 1973, with the exception of the last paragraph. They could not therefore have foreseen at that time the phenomenon now described as the Filipino labor force explosion overseas. According to government data, there are now about 600,000 contract workers and employees, and although the major portions of these expatriate communities of workers are found in the Middle East, they are scattered in 177 countries in the world. In previous hearings of the Committee on Constitutional Commissions and Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said that there was no insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own or under pressure of economic necessity here, find that they have detached themselves from 26 Election Laws Introductory Concepts
their families to work in other countries with definite tenures of employment. Many of them are on contract employment for one, two, or three years. They have no intention of changing their residence on a permanent basis, but are technically disqualified from exercising the right of suffrage in their countries of destination by residential requirement in Section 1 I, therefore, ask the Committee whether at the proper time, they might entertain an amendment that will make this exercise of the right to vote abroad for Filipino citizens an effective, rather than merely a nominal right under this proposed Constitution. FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would like to make a comment on the meaning of residence in the Constitution because I think it is a concept that has been discussed in various decisions of the Supreme Court, particularly in the case of Faypon vs. Quirino, a 1954 case which dealt precisely with the meaning of residence in the Election Law In other words, residence in this provision refers to two residence qualifications: residence in the Philippines and residence in the place where he will vote. As far as the residence in the Philippines is concerned, the word residence means domicile, but as far as residence where he will actually cast his ballot is concerned, the meaning seems to be different. He could have a domicile somewhere else and yet he is allowed to vote there. So that there may be serious constitutional obstacles to absentee voting, unless the vote of the person who is absent is a vote which will be considered as cast in the place of his domicile. (emphasis supplied) Following the observation of Father Bernas and to obviate the constitutional problem, the members of the Constitutional Commission then discussed the system of registration of qualified Filipinos abroad who will be allowed to vote. It was agreed that their registration abroad would be considered as registration in a particular locality in the Philippines where he is domiciled, and the vote cast abroad would be considered cast in that particular locality, to wit: MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that this envisions Filipinos residing abroad. The understanding in the amendment is that the Filipino is temporarily abroad. He may or may not be actually residing abroad; he may just be there on a business trip. It just so happens that the day before the elections he has to fly to the United States, so that he could not cast his vote. He is temporarily abroad but not residing there. He stays in a hotel for two days and comes back. This is not limited only to Filipinos temporarily residing abroad. But as long as he is temporarily abroad on the date of the elections, then he can fall within the prescription of Congress in that situation. MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this clarification on record. MR. MONSOD. Madam President, to clarify what we mean by temporarily abroad, it need not be on very short trips. One can be abroad on a treaty traders visa. Therefore, when we talk about registration, it is possible that his residence is in Angeles and he would be able to vote for the candidates in Angeles, but Congress or the Assembly may provide the procedure for registration, like listing ones name, in a registry list in the embassy abroad. That is still possible under this system. FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with this. Suppose we have a situation of a child of a diplomatic officer who reaches the voting age while living abroad and he has neve r registered here. Where will he register? Will he be a registered voter of a certain locality in the Philippines? MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the registration requirements in an embassy in the United States and his name is then entered in the official registration book in Angeles City, for instance. FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered voter of a locality here. MR. MONSOD. That is right. He does not have to come home to the Philippines to comply with the registration procedure here. FR. BERNAS. So, he does not have to come home. (emphases ours) It is crystal clear from the foregoing deliberations, that the majority erred in ruling that section 2 of Article V of the Constitution dispensed with the residence requirements provided under section 1 of the same Article. (2) Whether an immigrant or a permanent resident of a foreign country has lost his domicile in the Philippines.
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The next question is whether an immigrant or a permanent resident of a foreign country has abandoned his domicile in the Philippines. I respectfully submit that he has. There are three classes of domicile, namely: domicile of origin, domicile of choice, and domicile by operation of law. At any given point, a person can only have one domicile. Domicile of origin is acquired by every person at birth and continues until replaced by the acquisition of another domicile. More specifically, it is the domicile of the childs parents or of the persons upon whom the child is legally dependent at birth. Although also referred to as domicile of birth, domicile of origin is actually the domicile of ones parents at the time of birth and may not necessarily be the actual place of ones birth. Domicile of choice is a domicile chosen by a person to replace his or her former domicile. An adult may change domicile at will. The choice involves an exercise of free will and presumes legal capacity to make a choice. While intention is a principal feature of domicile of choice, a mere intention without the fact of actual presence in the locality cannot bring about the acquisition of a new domicile. Domicile of choice generally consists of a bodily presence in a particular locality and a concurrent intent to remain there permanently or at least indefinitely. Domicile by operation of law is a domicile that the law attributes to a person independent of a persons residence or intention. It applies to infants, incompetents, and other persons under disabilities that prevent them from acquiring a domicile of choice. In Romualdez-Marcos v. COMELEC, we ruled that domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one; and acts which correspond with purpose. This change of domicile is effected by a Filipino who becomes an immigrant or a permanent resident of a foreign country. Thus, we held in Caasi v. Court of Appeals, viz: Miguels application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor The doctrine in Caasi is by no means new. Our election laws have continuously regarded immigrants or permanent residents of a foreign country to have lost their domiciles in the Philippines and hence are not qualified to run for public office. There is no reason not to apply the Caasi ruling in disputes involving the qualification of voters. In essence, both cases concern fulfillment of the residence requirements. Section 5(d) of Rep. Act No. 9189 itself reinforces the applicability of the Caasi doctrine. As observed by the majority, Rep. Act No. 9189 disqualifies an immigrant or a permanent resident who is recognized as such in another country because immigration or permanent residence in another country implies renunciation of ones residence in his country of origin. We now slide to the legal significance of the affidavit to be executed by immigrants or permanent residents to remove them from the class of disqualified voters. (3) Whether the execution by an immigrant or a permanent resident of the affidavit under section 5(d) of Rep. Act No. 9189 is sufficient proof of non-abandonment of residence in the Philippines.
Again, with due respect, I submit that the majority ruling on the nature of the affidavit to be executed by an immigrant or a permanent resident is inconsistent. On one hand, it theorizes that the act serves as an explicit expression that he had not in fact abandoned his domicile of origin. This concedes that while an immigrant or a permanent resident has acquired a new domicile in a foreign country by virtue of his status as such, Rep. Act No. 9189 would consider him not to have abandoned his domicile in the Philippines. On the other hand, the majority also theorizes that the affidavit constitutes an express waiver of his status as an immigrant or permanent resident, and upon fulfillment of the requirements of registration, he may still be considered as a qualified citizen of the Philippines abroad for purposes of exercising his right of suffrage. This presupposes that the immigrant or permanent resident abandoned his domicile in the Philippines, but seeks to reacquire this domicile by the execution of the affidavit. The first theory is untenable. Its inevitable result would be the establishment of two domiciles, i.e., domicile in the Philippines and domicile in a foreign country where he is considered an immigrant or a permanent resident. This ruling will contravene the principle in private international law that a person can be domiciled only in one place at a given time. The second theory is equally untenable. A person who has abandoned his domicile of origin by establishing a domicile of choice cannot just revert back to his domicile of origin. He must satisfy the same requisites for acquiring a new domicile, i.e., an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one; and acts which correspond with the purpose. An existing domicile cannot be lost by abandonment alone, even if there is an intent to acquire a new one; the existing domicile continues until a new one is in fact gained. To abandon domicile, a person must choose a new domicile, actually reside in the place chosen, and intend that it be the principal and permanent residence. That is, there can be no change of domicile without the concurrence of act and intent. 28 Election Laws Introductory Concepts
The doctrine established in England that the domicile of origin is revived upon the abandonment of a domicile of choice has long been rejected in the United States. Even in England, the mobility of modern society has fostered both criticism of the rule and recommendation for its change. Thus, the prevailing view at present is that if a domicile of choice is abandoned without acquiring a new domicile of choice, the domicil[e] of origin is not thereby revived, but the last domicil[e] of choice continues to be the domicil[e]. In his Separate Opinion, our esteemed colleague, Mr. Justice Azcuna, opines that the execution of the affidavit is the operative act that revives the domicile of origin, and the requirement of resuming actual physical presence within three (3) years is only a test of such intention. He further opines that if the affiant does not resume the residence physically within said period, then the intent expressed in the affidavit is defective and the law will deem it inoperative. With due respect, I submit that the affidavit merely proves the intent to return but not the other requisites for reacquiring the domicile of origin. Intent, which is not coupled with actual physical transfer, is not sufficient either to abandon the former domicile or to establish a new domicile. Thus, the view that domicile could be established as soon as the old is abandoned even though the person has not yet arrived at the new domicile, has not been accepted. In his latest work on the subject, Scoles, an acknowledged expert in Conflict of Laws stated as follows: The element of physical presence is essential to confirm the requisite attitude of mind contemplated by the concept of domicile. As a consequence, a person who is to acquire a domicile of choice at a place must actually be present at that place during the tim e in which the intention to make it his home exists. For most people, intention is confirmed by the physical presence of considerable duration looking toward an indefinite period of time. However, in light of the function that domicile serves, i.e., to identify a settled relationship with a place for a particular legal purpose, it is sometimes necessary to make a determination when the physical presence has been very brief. Consequently, no particular length of time is necessary in order to satisfy the requirement of physical presence if that stay at a place verifies the intention to make it a home. In the case of the individual who has clearly manifested an intention to change a new home and center of social activities, the question sometimes arises why that persons domicile should not change as soon as the old is abandoned eventhough the individual has not yet arrived at the new. Although this has sometimes been suggested as a possibility, it is contrary to the clear weight of authority, probably because physical presence is ordinarily the principal confirming evidence of the intention of the person. (emphases ours) Beale, another acknowledged expert on the subject, shares the same view, viz: One or two authorities under special circumstances have held that a domicil[e] might be acquired in a certain place while the person is on his way toward the place with an intent to live there and during his journey toward that place, although he had not yet actually reached that place. In two taxation cases in Massachusetts, where upon the taxing day the person in question was actually on his journey from a former residence in the state to an intended second residence, whether in the same state or in another state, he was held to be taxable in the second residence in the ground that under those peculiar circumstances his domicil[e] would shift at the moment of abandoning the first residence. These, however, were disapproved and overruled. In one other case, a similar intimation has been made. In Matter of Grant, it appeared that a decedent had left a United States reservation in the State of New York with intention to go to the District of Columbia, and there establish his residence, but he had died en route. Fowler, Surrogate, intimated that he was already domiciled in the District of Columbia. It is not too much to say, however, that there is absolutely no good authority for the opinion thus expressed, and that it is legally impossible for a man to acquire a domicil[e] before he is present at the place where the domicil[e] is established. (emphasis ours) Beale also states that with the rejection of the English automatic reversion doctrine, physical presence is required before the person can reacquire his domicile of origin, viz: The doctrine in England is that the domicil[e] of origin revives upon the abandonment of a domicil[e] of choice Inspite of a few English cases to the contrary, this has become thoroughly established as the doctrine of the English courts, the court being especially emphatic in cases where a person has left his domicil[e] of choice without intent to return and has started to return to his domicil[e ] of origin. Here, evidence must of course be introduced to show a definitive abandonment of domicil[e] of choice by actually leaving the country without intent to return. The English doctrine has been approved in this country in several cases, in most of which the approval was a mere dictum, but in the United States, generally, the opposite view is held, and upon the abandonment of a domicil[e] of choice there is no change of domicil[e] until a new domicil[e] is obtained On the other hand, a few American cases follow the English decision in so far as to declare that a domicil[e] of origin revives when a person having abandoned a domicil[e] of choice is on his way to make a home at his domicil[e] of origin, but the better opinion in this country does not allow the reacquisition of the domicil[e] of origin until the fact of presence at the place of domicil[e] of origin exists, as well as the intent to return there. (emphasis ours)
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To stress, the burden of establishing a change in domicile is upon the party who asserts it. A persons declarations as to what he considers his home, residence, or domicile are generally admissible as evidence of his attitude of mind. However, whatever the context, their accuracy is suspect because of their self-serving nature, particularly when they are made to achieve some legal objective. In the case at bar, the burden rests on an immigrant or a permanent resident to prove that he has abandoned his domicile in the foreign country and reestablished his domicile in the Philippines. A self-serving affidavit will not suffice, especially when what is at stake is a very important privilege as the right of suffrage. I respectfully submit that what makes the intent expressed in the affidavit effective and operative is the fulfillment of the promise to return to the Philippines. Physical presence is not a mere test of intent but the principal confirming evidence of the intention of the person. Until such promise is fulfilled, he continues to be a domiciliary of another country. Until then, he does not possess the necessary requisites and therefore, cannot be considered a qualified voter. (4) Whether counting the votes of immigrants or permanent residents who fail to return to the Philippines will dilute the valid votes of our fully qualified electors.
The only consequence imposed by Rep. Act No. 9189 to an immigrant or a permanent resident who does not fulfill his promise to return to the Philippines is the removal of his name from the National Registry of Absentee Voters and his permanent disqualification to vote in absentia. But his vote would be counted and accorded the same weight as that cast by bona fide qualified Filipino voters. I respectfully submit that this scheme diminishes the value of the right of suffrage as it dilutes the right of qualified voters to the proportionate value of their votes. The one person, one vote principle is sacrosanct in a republican form of government. The challenged provision which allows the value of the valid votes of qualified voters to be diminished by the invalid votes of disqualified voters violates the sovereignty of our people. The validation by the majority of this unconstitutional provision may result in the anomaly where the highest public officials of our land will owe their election to immigrants or permanent residents who failed to fulfill their promise to return to our country or who repudiated their domicile here. The majority downplays the effect of the challenged provision on those who are already qualified prior to the enactment of Rep. Act No. 9189. It is opined that the removal of an immigrant or a permanent resident from the list of the National Registry of Absentee Voters and his permanent disqualification would suffice to serve as deterrence to non-compliance with his/her undertaking under the affidavit. The majority misses the point. Without section 5(d) of Rep. Act No. 9189, an immigrant or a permanent resident has no right to vote. Thus, even assuming that he becomes qualified after executing the affidavit, he does not stand to lose anything when he is subsequently disqualified for his failure to comply with his undertaking under the affidavit. He will just return to his original status. B. Is section 18.5 of Rep. Act No. 9189 in relation to section 4 of the same Act in contravention of section 4, Article VII of the Constitution? Petitioner contends that section 18.5 in relation to section 4 of Rep. Act No. 9189 violates section 4, Article VII of the 1987 Constitution giving Congress the power to canvass the votes and proclaim the winning candidates for President and Vice-President, viz: The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates. Section 4 of Rep. Act No. 9189 allows all qualified Filipinos overseas to vote for President, Vice-President, Senators and party-list representatives while section 18.5 thereof empowers the COMELEC to order the proclamation of winning candidates, viz: SEC. 18. On-Site Counting and Canvassing. 30 Election Laws Introductory Concepts
18.5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the election will not be affected by the results thereof. Notwithstanding the foregoing, the Commission is empowered to order the proclamation of winning candidates despite the fact the scheduled election has not taken place in a particular country or countries, if the holding of elections therein has been rendered impossible by events, factors and circumstances peculiar to such country or countries, in which events, factors and circumstances are beyond the control or influence of the Commission. On its face, section 18.5 of Rep. Act No. 9189 appears to be repugnant to section 4, Article VII of the 1987 Constitution. It gives the impression that Congress abdicated to COMELEC its constitutional duty to canvass and proclaim the winning candidates for President and Vice-President. I agree with the majority that the impugned provision should be given a reasonable interpretation that would save it from a constitutional infirmity. To be sure, Congress could have not allowed the COMELEC to exercise a power exclusively bestowed upon it by the Constitution. Thus, section 18.5 of Rep. Act No. 9189 empowering the COMELEC to proclaim the winning candidates should be construed as limited to the positions of Senators and party-list representatives. In like manner, I agree with the majority that section 18.4 of Rep. Act No. 9189 which provides: 18.4. Immediately upon the completion of the canvass, the chairman of the Special Board of Canvassers shall transmit via facsimile, electronic mail, or any other means of transmission equally safe and reliable the Certificates of Canvass and the Statements of Votes to the Commission,.(emphasis supplied) should be construed in harmony with section 4, Article VII of the 1987 Constitution. Hence, with respect to the position of the President and the Vice-President, the Certificates of Canvass and the Statements of Votes must be submitted to Congress and directed to the Senate President. C. Does Congress, through the Joint Congressional Oversight Committee created in section 25 of Rep. Act No. 9189, have the power to review, revise, amend and approve the Implementing Rules and Regulations that the Commission on Elections shall promulgate without violating the independence of the COMELEC under section 1, Article IX-A of the Constitution? Both the Commission on Elections (COMELEC) and the Office of the Solicitor General (OSG) agree with the petitioner that sections 19 and 25 of Rep. Act No. 9189 are unconstitutional on the ground that they violate the independence of the COMELEC. The impugned provisions require the public respondent COMELEC to submit its Implementing Rules and Regulations to the Joint Congressional Oversight Committee for review, revision, amendment, or approval, viz: Sec. 19. Authority of the Commission to Promulgate Rules.- The Commission shall issue the necessary rules and regulations to effectively implement the provisions of this Act within sixty (60) days from effectivity of this Act. The Implementing Rules and Regulations shall be submitted to the Joint Oversight Committee created by virtue of this Act for prior approval. In the formulation of the rules and regulations, the Commission shall coordinate with the Department of Foreign Affairs, Department of Labor and Employment, Philippine Overseas Employment Administration, Overseas Workers Welfare Administration and the Commission on Filipino Overseas. Non-government organizations and accredited Filipino organizations or associations abroad shall be consulted. Sec. 25. Joint Congressional Oversight Committee.- A joint Congressional Oversight Committee is hereby created, composed of the Chairman of the Senate Committee on Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators designated by the Senate President, and the Chairman of the House Committee on Suffrage and Electoral Reforms, and seven (7) other members of the House of Representatives designated by the Speaker of the House of Representatives: Provided, That, of the seven (7) members to be designated by each House of Congress, four (4) should come from the majority and the remaining three (3) from the minority. The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the implementation of this Act. It shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission. (emphases supplied) Public respondents aver that as an independent constitutional body, the COMELEC is not under the control of the executive or the legislative in the performance of its constitutional function to enforce and administer all laws and regulations relative to the conduct of an election. Public respondent COMELEC asserts that its right to formulate rules and regulations flows from its power to enforce and administer election laws and regulations. This power is exclusive and its exercise is not subject to the review, revision, or approval of Congress. The Solicitor General shares the same view that the role of the legislature ends with the finished task of legislation. He opines that nothing in Article VI of the 1987 Constitution suggests that Congress is empowered to enforce and administer election laws concurrent with the COMELEC. 31 Election Laws Introductory Concepts
Along the same lines, public respondent COMELEC assails section 17.1 of Rep. Act No. 9189 subjecting the implementation of voting by mail to prior review and approval of the Joint Oversight Committee. It maintains that the development of a system for voting by mail involves the administration of election laws and falls squarely within its exclusive functions. Section 17.1 of Rep. Act No. 9189 reads: Sec. 17. Voting by mail.17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries, subject to the approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following conditions: (a) (b) (c) Where the mailing system is fairly well-developed and secure to prevent occasion of fraud; Where there exists a technically established identification system that would preclude multiple or proxy voting; and Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned are adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Oversight Committee. (emphases supplied) The majority sustains the petitioner as it holds that [b]y vesting itself with the powers to approve, review, amend and revise the IRR for The Overseas Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of independence of the COMELEC. I agree with the majority but wish to add my humble thoughts on this all important constitutional issue--- the extent of the exercise by Congress of its oversight powers in the implementation of Rep. Act No. 9189. The resolution of the issue entails a two-tiered discussion of the following: (1) whether Congress has oversight functions over constitutional bodies like the COMELEC; and (2) assuming that it has, whether Congress exceeded the permissible exercise of its oversight functions. Before proceeding, we must focus on the exact place of the power of congressional oversight in our constitutional canvass. This will involve an exposition of two principles basic to our constitutional democracy: separation of powers and checks and balances. Separation of powers and checks and balances The principle of separation of powers prevents the concentration of legislative, executive, and judicial powers to a single branch of government by deftly allocating their exercise to the three branches of government. This principle dates back from the time of Aristotle but the modern concept owes its origin in the seventeenth and eighteenth century writings of political philosophers including Locke and Montesquieu. Their writings were mainly reactions to the ruinous struggle for power by the monarchs and the parliaments in Western Europe. In his Second Treatise of Civil Government, John Locke advocated the proper division of the legislative, executive and federative powers of the commonwealth. He defined legislative power as that which has a right to direct how the force of the commonwealth shall be employed for preserving the community and the members of it. He viewed executive power as involving the execution of the municipal laws of the society within its self, [and] upon all that are parts of it and federative power as concerned with the management of the security and interest of the public without including the power of war and peace, leagues and alliances, and all the transactions, with all persons and communities without the commonwealth. Locke expostulated that executive powers should not be placed in one person or group of persons exercising legislative power because it may be too great a temptation to human frailty, apt to grasp at power, for the same persons, who have the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making, and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the community, contrary to the end of society and government. But while the executive and the federative are two distinct powers, Locke conceded that they are intricately related and thus may be exercised by the same persons. Locke mothered the modern idea of division of power but it was Montesquieu who refined the concept. In his famed treatise, The Spirit of the Laws, Montesquieu authoritatively analyzed the nature of executive, legislative and judicial powers and with a formidable foresight counselled that any combination of these powers would create a system with an inherent tendency towards tyrannical actions, thus: In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law. By virtue of the legislative power, the prince or magistrate enacts 32 Election Laws Introductory Concepts
temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply the executive power of the state. The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another. When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and the executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and that of trying the causes of individuals. At the time of the American Revolution, the more influential political leaders in the new states subscribed to Montesquieus concept of separation of powers. Some constitutions of the early state governments even referred to the principle. But the concept espoused at that particular time was a lot different. As then understood, separation of powers requires a watertight compartmentalization of the executive, judicial, and legislative functions and permits no sharing of government powers between and among the three branches of government. The Massachusetts Constitution of 1780, for instance, provides: In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them: to the end that it may be a government of laws and not of men. The 1787 U.S. Constitution did not contain a similar provision like that found in the Massachusetts Constitution or any principle proclaiming the adherence of the Framers to the principle of separation of powers. But legal scholars are of the view that the Framers essentially followed Montesquieus recommendation for the division of powers, noting that the U.S. Constitution vests all legislative powers in the Congress of the United States, the executive power in the President, and the judicial power in one Supreme Court and in such inferior courts as Congress may provide. These legal scholars also note that the U.S. Constitution allows the sharing of the three great powers between and among the three branches. The President, for instance, shares in the exercise of legislative power through his veto power, and the courts through their power to make rules of judicial procedure and especially through their right to interpret laws and invalidate them as unconst itutional. Congress shares in the exercise of executive power through its confirmation of appointments and assent to treaties, and in the judicial power through its power to create inferior courts and regulate the number and pay of judges. Thus, they postulate that the Framers established a government guided not by strict separation of powers but one of checks and balances to prevent the separate branches from running wild and to avert deadlocks and breakdowns, viz: The Framers expected the branches to battle each other to acquire and defend power. To prevent the supremacy of one branch over any other in these battles, powers were mixed; each branch was granted important power over the same area of activity. The British and Conference experience has led the Framers to avoid regarding controversy between the branches as a conflict between good and evil or right or wrong, requiring definitive, institutionally permanent resolution. Rather, they viewed such conflict as an expression of the aggressive and perverse part of human nature that demanded outlet but has to be kept from finding lasting resolution so that liberty could be reserved. Even then, some legal luminaries were of the view that the concept of checks and balances is diametrically opposed to the principle of separation of powers. James Madison, however, explained that Montesquieus concept of separation of powers did not require a strict division of functions among the three branches of government. Madison defended the Constitution as having sufficient division of functions among the three branches of government to avoid the consolidation of power in any one branch and also stressed that a rigid segregation of the three branches would undermine the purpose of the separation doctrine. He noted that unless the three branches be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice be duly maintained. Madisons view has since then been the accepted interpretation of the concept of separation of powers under the Constitution. Thus, in Youngstown Sheet & Tube Co. v. Sawyer, the U.S. Supreme Court held that [I]n designing the structure of our Government and dividing and allocating the sovereign power among the three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system but the separate powers were not intended to operate with absolute independence. In Buckley v. Valeo, the Court ruled that the Constitution by no means contemplates total separation of each of these essential branches of government and the framers viewed the principle of separation of powers as a vital check against tyranny. It likewise warned that the hermetic sealing off of the three branches of 33 Election Laws Introductory Concepts
Government from one another would preclude the establishment of a Nation capable of governing itself effectively. Thus, in Nixon v. Administrator of General Services, the Court rejected the archaic view of separation of powers as requiring three airtight departments of government. In determining whether an act disrupts the proper balance between the coordinate branches, the Court suggested that the proper inquiry should focus on the extent to which it prevents the other branch from accomplishing its constitutionally assigned functions. In this jurisdiction, our adherence to the principle of separation powers was succinctly discussed by Justice Laurel in Angara v. Electoral Commission decided in 1936, less than a year after the effectivity of the 1935 Constitution. Justice Laurel emphasized that [T]he separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Thus: Each department of the government has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointment of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. In Planas v. Gil, Justice Laurel further discussed the intricate interplay of the principle of separation of powers and checks and balances, viz: The classical separation of governmental powers, whether viewed in the light of political philosophy of Aristotle, Locke or Montesquieu, or to the postulations of Mabini, Madison, or Jefferson, is a relative theory of government. There is more truism and actuality in interdependence than in independence and separation of powers, for as observed by Justice Holmes in a case of Philippine origin, we cannot lay down with mathematical precision and divide the branches in watertight compartments not only because the ordinances of the Constitution do not establish and divide fields of black and white but also because even more specific to them are found to terminate in a penumbra shading gradually from one extreme to the other. It is now beyond debate that the principle of separation of powers (1) allows the blending of some of the executive, legislative, or judicial powers in one body; (2) does not prevent one branch of government from inquiring into the affairs of the other branches to maintain the balance of power; (3) but ensures that there is no encroachment on matters within the exclusive jurisdiction of the other branches. For its part, this Court checks the exercise of power of the other branches of government through judicial review. It is the final arbiter of disputes involving the proper allocation and exercise of the different powers under the Constitution. Thus: The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. The power of judicial review is, however, limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented, for any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions of wisdom, justice or expediency of legislation. Courts are also enjoined to accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. The role of the judiciary in mapping the metes and bounds of powers of the different branches of government was redefined in the 1987 Constitution which expanded the jurisdiction of this Court to include the determination of grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The expansion was made because of the Election Laws Introductory Concepts
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dissatisfaction with the practice of this Court in frequently invoking the political question doctrine during the period of martial law to dodge its duty. Be that as it may, the expanded power definitely does not do away with the political question doctrine itself. Thus, in Marcos v. Manglapus, the Court held: Under the Constitution, judicial power includes the duty to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. [Art. VIII, Sec. 1.] Given this wording, we cannot agree with the Solicitor General that the issue constitutes a political question which is beyond the jurisdiction of the Court to decide. The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. But nonetheless there remain issues beyond the Court's jurisdiction the determination of which is exclusively for the President, for Congress or for the people themselves through a plebiscite or referendum. We cannot, for example, question the President's recognition of a foreign government, no matter how premature or improvident such action may appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution under the guise of resolving a dispute brought before us because the power is reserved to the people. Since then, the Court has used its expanded power to check acts of the House of Representatives, the President, and even of independent bodies such as the Electoral Tribunal, the Commission on Elections and the Civil Service Commission. Congress checks the other branches of government primarily through its law making powers. Congress can create administrative agencies, define their powers and duties, fix the terms of officers and their compensation. It can also create courts, define their jurisdiction and reorganize the judiciary so long as it does not undermine the security of tenure of its members. The power of Congress does not end with the finished task of legislation. Concomitant with its principal power to legislate is the auxiliary power to ensure that the laws it enacts are faithfully executed. As well stressed by one scholar, the legislature fixes the main lines of substantive policy and is entitled to see that administrative policy is in harmony with it; it establishes the volume and purpose of public expenditures and ensures their legality and propriety; it must be satisfied that internal administrative controls are operating to secure economy and efficiency; and it informs itself of the conditions of administration of remedial measure. Concept and bases of congressional oversight Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess executive conformity with the congressional perception of public interest. The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks and balances inherent in a democratic system of government. Among the most quoted justifications for this power are the writings of John Stuart Mill and Woodrow Wilson. In his Consideration of Representative Government, Mill wrote that the duty of the legislature is to watch and control the government; to throw the light of publicity on its acts; to compel a full exposition and justification of all of them which any one considers objectionable; and to censure them if found condemnable. Wilson went one step farther and opined that the legislatures informing function should be preferred to its legislative function. He emphasized that [E]ven more important than legislation is the instruction and guidance in political affairs which the people might receive from a body which kept all national concerns suffused in a broad daylight of discussion. Over the years, Congress has invoked its oversight power with increased frequency to check the perceived exponential accumulation of power by the executive branch. By the beginning of the 20th century, Congress has delegated an enormous amount of legislative authority to the executive branch and the administrative agencies. Congress, thus, uses its oversight power to make sure that the administrative agencies perform their functions within the authority delegated to them. The oversight power has also been used to ensure the accountability of regulatory commissions like the Securities and Exchange Commission and the Federal Reserve Board, often referred to as representing a headless fourth branch of government. Unlike other ordinary administrative agencies, these bodies are independent from the executive branch and are outside the executive department in the discharge of their functions. Categories of congressional oversight functions The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three categories, namely: scrutiny, investigation and supervision. Election Laws Introductory Concepts
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a. Scrutiny Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its primary purpose is to determine economy and efficiency of the operation of government activities. In the exercise of legislative scrutiny, Congress may request information and report from the other branches of government. It can give recommendations or pass resolutions for consideration of the agency involved. Legislative scrutiny is based primarily on the power of appropriation of Congress. Under the Constitution, the power of the purse belongs to Congress. The President may propose the budget, but still, Congress has the final say on appropriations. Consequently, administrative officials appear every year before the appropriation committees of Congress to report and submit a budget estimate and a program of administration for the succeeding fiscal year. During budget hearings, administrative officials defend their budget proposals. The power of appropriation carries with it the power to specify the project or activity to be funded. Hence, the holding of budget hearing has been the usual means of reviewing policy and of auditing the use of previous appropriation to ascertain whether they have been disbursed for purposes authorized in an appropriation act. The consideration of the budget is also an opportunity for the lawmakers to express their confidence in the performance of a Cabinet Secretary or to manifest their disgust or disfavor of the continuance in office of a bureaucrat. Congress can even curtail the activities of the administrative agencies by denial of funds. In the United States, for instance, Congress brought to end the existence of the Civilian Conservation Corps, the National Youth Administration and the National Resources Planning Board, simply by denying them any appropriation. But legislative scrutiny does not end in budget hearings. Congress can ask the heads of departments to appear before and be heard by either House of Congress on any matter pertaining to their departments. Section 22, Article VI of the 1987 Constitution provides: The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. This provision originated from the Administrative Code and was later elevated to the level of a constitutional provision due to its great value in the work of the legislature. In drafting the 1935 Constitution, some delegates opposed the provision arguing that it is a feature of a parliamentary system and its adoption would make our government a hybrid system. But mainly attacked was the provision authorizing the department secretaries on their own initiative to appear before the legislature, with the right to be heard on any matter pertaining to their departments. It was pointed out that this would give a chance to the department secretaries to lobby for items in the appropriation bill or for provisions of other bills in which they had special interest, permitting them to bear influence and pressure upon Members of the law-making body, in violation of the principle of separation of powers underlying the Constitution. Despite the objections, the provision was adopted to prevent the raising of any question with respect to the constitutionality of the practice and to make open and public the relations between the legislative and the executive departments. As incorporated in the 1935 Constitution, the provision reads: The heads of departments upon their own initiative or upon the request of the National Assembly on any matter pertaining to their departments unless the public interest shall require otherwise and the President shall state so in writing. The whole tenor of the provision was permissive: the department heads could appear but the legislative was not obliged to entertain them; reciprocally, the legislature could request their appearance but could not oblige them especially if the President objected. The rule radically changed, however, with the adoption of the 1973 Constitution, establishing a parliamentary system of government. In a parliamentary system, the administration is responsible to the Parliament and hence, the Prime Minister and the Cabinet Members may be required to appear and answer questions and interpellations to give an account of their stewardship during a question hour, viz: Sec. 12 (1) There shall be a question hour at least once a month or as often as the Rules of the Batasang Pambansa may provide, which shall be included in its agenda, during which the Prime Minister, the Deputy Prime Minister or any Minister may be required to appear and answer questions and interpellations by Members of the Batasang Pambansa. Written questions shall be submitted to the Speaker at least three days before a scheduled question hour. Interpellations shall not be limited to the written questions, but may cover matters related thereto. The agenda shall specify the subjects of the question hour. When the security of the State so requires and the President so states in writing, the question hour shall be conducted in executive session. The question hour was retained despite the reversion to the presidential system in 1981. During the deliberations of the 1987 Constitution, the report of the legislative committee called for the adoption of the question hour for the following reasons:
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Its purposes are to elicit concrete information from the administration, to request its intervention, and when necessary, to expose abuses and seek redress. The procedure provides the opposition with a means of discovering the governments weak points and because of the publicity it generates, it has a salutary influence on the administration. On the whole, because of the detailed facts elicited during the interpellation or in the written answers, it will help members to understand the complicated subject matter of bills and statutory measures laid before the Assembly. It may be added that the popularity of this procedure can be attributed to the fact that in making use of his right to ask questions, the member is a completely free agent of the people. The only limits on his actions are the rules governing the admissibility of questions concerned with matters of form and not with the merits of the issue at hand. The fact that we also impose a time limit means that the government is obliged to furnish the information asked for and this obligation is what gives the procedure its real strength. This proposal was vigorously opposed on the ground of separation of powers. CONCOM Delegate Christian Monsod pointed out that the provision was historically intended to apply to members of the legislature who are in the executive branch typical in a parliamentary form of government. In fine, the question hour was conducted on a peer basis. But since the delegates decided to adopt a presidential form of government, cabinet members are purely alter egos of the President and are no longer members of the legislature. To require them to appear before the legislators and account for their actions puts them on unequal terms with the legislators and would violate the separation of powers of the executive and the legislative branches. Delegate Monsod, however, recognized that a mechanism should be adopted where Cabinet members may be summoned and may, even on their own initiative, appear before the legislature. This, he said, would promote coordination without subordinating one body to another. He thus suggested that the original tenor of the provision in the 1935 Constitution be retained. After much deliberation, delegate Monsods suggestion prevailed. Thus, the President may or may not consent to the appearance of the heads of departments; and even if he does, he may require that the appearance be in executive session. Reciprocally, Congress may refuse the initiative taken by a department secretary. Likewise, Congress exercises legislative scrutiny thru its power of confirmation. Section 18, Article VI of the 1987 Constitution provides for the organization of a Commission on Appointments consisting of the President of the Senate as ex officio Chairman, twelve Senators and twelve members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties or organizations registered under the party-list system. Consent of the Commission on Appointments is needed for the nominees of the President for the following positions: (a) heads of executive departments, (b) ambassadors, other public ministers and consuls, (c) officers of the armed forces from the rank of colonel or naval captain, and (d) other officers whose appointments are vested with the President under the Constitution. Through the power of confirmation, Congress shares in the appointing power of the executive. Theoretically, it is intended to lessen political considerations in the appointment of officials in sensitive positions in the government. It also provides Congress an opportunity to find out whether the nominee possesses the necessary qualifications, integrity and probity required of all public servants. In the United States, apart from the appropriation and confirmation powers of the U.S. Congress, legislative scrutiny finds expression in the Legislative Reorganization Act of 1946 charging all House and Senate Standing Committees with continuous vigilance over the execution of any and all laws falling within their respective jurisdictions with a view to determining its economy and efficiency. Pursuant to this law, each committee was authorized to hire a certain number of staff employees. All Senate committees were likewise given the power to subpoena witnesses and documents. b. Congressional investigation While congressional scrutiny is regarded as a passive process of looking at the facts that are readily available, congressional investigation involves a more intense digging of facts. The power of Congress to conduct investigation is recognized by the 1987 Constitution under section 21, Article VI, viz: The Senate or the House of Representatives or any of its respective committee may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. But even in the absence of an express provision in the Constitution, congressional investigation has been held to be an essential and appropriate auxiliary to the legislative function. In the United States, the lack of a constitutional provision specifically authorizing the conduct of legislative investigations did not deter its Congresses from holding investigation on suspected corruption, mismanagement, or inefficiencies of government officials. Exercised first in the failed St. Clair expedition in 1792, the power to conduct investigation has since been invoked in the Teapot Dome, Watergate, Iran-Contra, and Whitewater controversies. Subsequently, in a series of decisions, the Court recognized the danger to effective and honest conduct of the Government if the legislative power to probe corruption in the Executive branch were unduly unhampered. In Eastland v. United States Servicemens Fund, the U.S. Supreme Court ruled that the scope of the congressional power of inquiry is penetrating and far-reaching as the potential power to enact and appropriate under the Constitution. It encompasses everything that concerns the administration of existing laws as well as proposed or possibly needed statutes. In the exercise of this power, congressional inquiries can reach all sources of information and in the absence of countervailing constitutional privilege or self-imposed 37 Election Laws Introductory Concepts
restrictions upon its authority, Congress and its committees, have virtually, plenary power to compel information needed to discharge its legislative functions from executive agencies, private persons and organizations. Within certain constraints, the information so obtained may be made public. In McGrain v. Daugherty, it held that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to effect change. But while the congressional power of inquiry is broad, it is not unlimited. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task o f Congress. Moreover, an investigating committee has only the power to inquire into matters within the scope of the authority delegated to it by its parent body. But once its jurisdiction and authority, and the pertinence of the matter under inquiry to its area of authority are established, a committees investigative purview is substantial and wide-ranging. American jurisprudence upholding the inherent power of Congress to conduct investigation has been adopted in our jurisdiction in Arnault v. Nazareno, decided in 1950, when no provision yet existed granting Congress the power to conduct investigation. In the said case, the Senate passed Resolution No.8 creating a special committee to investigate the Buenavista and the Tambobong Estates Deal wherein the government was allegedly defrauded P5,000,000.00. The special committee examined various witnesses, among whom was Jean L. Arnault. Due to the refusal of Arnault to answer a question which he claimed to be selfincriminatory, the Senate passed a resolution citing Arnault in contempt. The Senate committed him to the custody of the Sergeant-atArms and ordered his imprisonment until he shall have answered the question. Arnault filed a petition before this Court contending that (a) the Senate has no power to punish him for contempt; (b) the information sought to be obtained by the Senate is immaterial and will not serve any intended or purported legislation; and (c) the answer required of him will incriminate him. Upholding the power of the Senate to punish Arnault for contempt, the Court ruled as follows: Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far inc idental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which is not frequently true recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed The fact that the Constitution expressly gives the Congress the power to punish its Members for disorderly behaviour, does not by necessary implication exclude the power to punish for contempt any other person. The Court further ruled that the power of the Senate to punish a witness for contempt does not terminate upon the adjournment of the session. It held that the investigation was within the power of the Senate since the transaction involved a questionable and allegedly unnecessary and irregular expenditure of no less than P5,000,000.00 of public funds, of which the Congress is the constitutional guardian. The investigation was also found to be in aid of legislation. As result of the yet unfinished investigation, the Court noted that the investigating committee has recommended, and the Senate has approved three bills. The Court further held that once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, the investigating committee has the power to require a witness to answer any question pertinent to that inquiry, subject to his constitutional right against self-incrimination. The inquiry must be material or necessary to the exercise of a power in it vested by the Constitution. Hence, a witness can not be coerced to answer a question that obviously has no relation to the subject of the inquiry. But the Court explained that the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation. The reason is that the necessity or lack of necessity for legislative action and the form and character of the action itself are determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question. Finally, the Court ruled that the ground on which Arnault invoked the right against self-incrimination is too shaky, infirm, and slippery to afford him safety. It noted that since Arnault himself said that the transaction was legal, and that he gave the P440,000.00 to a representative of Burt in compliance with the latters verbal instruction, there is therefore no basis upon which to sustain his claim that to reveal the name of that person would incriminate him. It held that it is not enough for the witness to say that the answer will incriminate him for he is not the sole judge of his liability, thus: [T]he danger of self-incrimination must appear reasonable and real to the court, from all the circumstances and from the whole case, as well as from his general conception of the relations of the witness The fact that the testimony of the witness may tend to show that he has violated the law is not sufficient to entitle him to claim the protection of the constitutional provision against self-incrimination, unless he is at the same time liable to prosecution and punishment for such violation. The witness cannot assert his privilege by reason of some fanciful excuse, for protection against an imaginary danger, or to secure immunity to a third person. As now contained in the 1987 Constitution, the power of Congress to investigate is circumscribed by three limitations, namely: (a) it must be in aid of its legislative functions, (b) it must be conducted in accordance with duly published rules of procedure, and (c) the persons appearing therein are afforded their constitutional rights.
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In Bengzon, Jr. v. Senate Blue Ribbon Committee, this Court held that the senate committee exceeded the permissible exercise of legislative investigation. The case started with a speech by Senator Enrile suggesting the need to determine possible violation of law in the alleged transfer of some properties of former Ambassador Benjamin Kokoy Romualdez to the Lopa Group of Companies. The Senate Blue Ribbon Committee decided to investigate the transaction purportedly in aid of legislation. When the Blue Ribbon Committee summoned the petitioners to appear, they asked this Court for a restraining order on the ground, among others, that the investigation was not in aid of legislation and that their appearance before the investigating body could prejudice their case before the Sandiganbayan. Ruling in favor of the petitioner, we held as follows: Verily, the speech of Senator Enrile contained no suggestion of contemplated legislation; he merely called upon the Senate to look into a possible violation of Sec. 5 of RA No. 3019, otherwise known as The Anti-Graft and Corrupt Practices Act. In other words, the purpose of the inquiry to be conducted by respondent Blue Ribbon Committee was to find out whether or not the relatives of President Aquino, particularly, Mr. Ricardo Lopa, had violated the law in connection with the alleged sale of the 36 or 39 corporations belonging to Benjamin Kokoy Romualdez to the Lopa Group. There appears to be, therefore, no intended legislation involved. The conduct of legislative investigation is also subject to the rules of each House. In the House of Representatives, an inquiry may be initiated or conducted by a committee motu proprio on any matter within its jurisdiction upon a majority vote of all its Members or upon order of the House of Representatives through: (1) the referral of a privilege speech containing or conveying a request or demand for the conduct of an inquiry, to the appropriate committee, upon motion of the Majority Leader or his deputies; or the adoption of a resolution directing a committee to conduct an inquiry reported out by the Committee on Rules after making a determination on the necessity and propriety of the conduct of an inquiry by such committee: Provided, That all resolutions directing any committee to conduct an inquiry shall be referred to the Committee on Rules; or the referral by the Committee on Rules to the appropriate committee, after making a determination on the necessity and propriety of the conduct of inquiry by such committee, of a petition filed or information given by a Member of the House requesting such inquiry and endorsed by the Speaker: Provided, That such petition or information shall be given under oath, stating the facts upon which it is based, and accompanied by supporting affidavits.
(2)
(3)
The committee to which a privilege speech, resolution, petition or information requesting an inquiry is referred may constitute and appoint sub-committees composed of at least one-third (1/3) of the committee for the purpose of performing any and all acts which the committee as a whole is authorized to perform, except to punish for contempt. In case a privilege speech is referred to two or more committees, a joint inquiry by the said committees shall be conducted. The inquiries are to be held in public except when the committee or sub-committee deems that the examination of a witness in a public hearing may endanger national security. In which case, it shall conduct the hearing in an executive session. The Rules further provide that the filing or pendency of a case before any court, tribunal or quasi-judicial or administrative bodies shall not stop or abate any inquiry conducted to carry out a specific legislative purpose. In exercise of congressional inquiry, the committee has the power to issue subpoena and subpoena duces tecum to a witness in any part of the country, signed by the chairperson or acting chairperson and the Speaker or acting Speaker. Furthermore, the committee may, by a vote of two-thirds (2/3) of all its members constituting a quorum, punish for contempt any person who: (a) refuses, after being duly summoned, to obey such summons without legal excuse; (b) refuses to be sworn or placed under affirmation; (c) refuses to answer any relevant inquiry; (d) refuses to produce any books, papers, documents or records that are relevant to the inquiry and are in his/her possession; (e) acts in a disrespectful manner towards any member of the Committee or commits misbehavior in the presence of the committee; or (f) unduly interferes in the conduct of proceedings during meetings. Nevertheless, any person called to be a witness may be represented by a counsel and is entitled to all rights including the right against self-incrimination. c. Legislative supervision The third and most encompassing form by which Congress exercises its oversight power is thru legislative supervision. Supervision connotes a continuing and informed awareness on the part of a congressional committee regarding executive operations in a given administrative area. While both congressional scrutiny and investigation involve inquiry into past executive branch actions in order to influence future executive branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-making authority, and permits Congress to retain part of that delegated authority. Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law. These provisions require the President or an agency to present the proposed regulations to Congress, which retains a right to approve or disapprove any regulation before it takes effect. Such legislative veto provisions usually provide that a proposed regulation will 39 Election Laws Introductory Concepts
become a law after the expiration of a certain period of time, only if Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently, the statute provides that a proposed regulation will become law if Congress affirmatively approves it. The legislative veto was developed initially in response to the problems of reorganizing the U.S. Government structure during the Great Depression in early 20th century. When U.S. President Hoover requested authority to reorganize the government in 1929, he coupled his request with a proposal for legislative review. He proposed that the Executive should act upon approval of a joint Committee of Congress or with the reservation of power of revision by Congress within some limited period adequate for its consideration. Congress followed President Hoovers suggestion and authorized reorganization subject to legislative review. Although the reorganization authority reenacted in 1933 did not contain a legislative veto provision, the provision returned during the Roosevelt administration and has since been renewed several times. Over the years, the provision was used extensively. Various American Presidents submitted to Congress some 115 Reorganization Plans, 23 of which were disapproved pursuant to legislative veto provisions. During World War II, Congress and the President applied the legislative veto procedure to resolve the delegation problem involving national security and foreign affairs. The legislative veto offered the means by which Congress could confer additional authority to the President while preserving its own constitutional role. During this period, Congress enacted over 30 statutes conferring powers on the Executive with legislative veto provisions. After World War II, legislative veto provisions have been inserted in laws delegating authority in new areas of governmental involvement including the space program, international agreements on nuclear energy, tariff arrangements, and adjustment of federal pay rates. It has also figured prominently in resolving a series of major constitutional disputes between the President and Congress over claims of the President to broad impoundment, war and national emergency powers. Overall, 295 congressional veto-type procedures have been inserted in 196 different statutes since 1932 when the first veto provision was enacted into law. Supporters of legislative veto stress that it is necessary to maintain the balance of power between the legislative and the executive branches of government as it offers lawmakers a way to delegate vast power to the executive branch or to independent agencies while retaining the option to cancel particular exercise of such power without having to pass new legislation or to repeal existing law. They contend that this arrangement promotes democratic accountability as it provides legislative check on the activities of unelected administrative agencies. One proponent thus explains: It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law and practice. It suffices to say that the complexities of modern government have often led Congress-whether by actual or perceived necessity- to legislate by declaring broad policy goals and general statutory standards, leaving the choice of policy options to the discretion of an executive officer. Congress articulates legislative aims, but leaves their implementation to the judgment of parties who may or may not have participated in or agreed with the development of those aims. Consequently, absent safeguards, in many instances the reverse of our constitutional scheme could be effected: Congress proposes, the Executive disposes. One safeguard, of course, is the legislative power to enact new legislation or to change existing law. But without some means of overseeing post enactment activities of the executive branch, Congress would be unable to determine whether its policies have been implemented in accordance with legislative intent and thus whether legislative intervention is appropriate. Its opponents, however, criticize the legislative veto as undue encroachment upon the executive prerogatives. They urge that any post-enactment measures undertaken by the legislative branch should be limited to scrutiny and investigation; any measure beyond that would undermine the separation of powers guaranteed by the Constitution. They contend that legislative veto constitutes an impermissible evasion of the Presidents veto authority and intrusion into the powers vested in the executive or judicial branches of government. Proponents counter that legislative veto enhances separation of powers as it prevents the executive branch and independent agencies from accumulating too much power. They submit that reporting requirements and congressional committee investigations allow Congress to scrutinize only the exercise of delegated law-making authority. They do not allow Congress to review executive proposals before they take effect and they do not afford the opportunity for ongoing and binding expressions of congressional intent. In contrast, legislative veto permits Congress to participate prospectively in the approval or disapproval of subordinate law or those enacted by the executive branch pursuant to a delegation of authority by Congress. They further argue that legislative veto is a necessary response by Congress to the accretion of policy control by forces outside its chambers. In an era of delegated authority, they point out that legislative veto is the most efficient means Congress has yet devised to retain control over the evolution and implementation of its policy as declared by statute. In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of legislative veto provisions. The case arose from the order of the immigration judge suspending the deportation of Chadha pursuant to 244(c)(1) of the Immigration and Nationality Act. The United States House of Representatives passed a resolution vetoing the suspension pursuant to 244(c)(2) authorizing either House of Congress, by resolution, to invalidate the decision of the executive branch to allow a particular deportable alien to remain in the United States. The immigration judge reopened the deportation proceedings to implement the House order and the alien was ordered deported. The Board of Immigration Appeals dismissed the aliens appeal, holding that it had no power to declare unconstitutional an act of Congress. The United States Court of Appeals for Ninth Circuit held that the House was without constitutional authority to order the aliens deportation and that 244(c)(2) violated the constitutional doctrine on separation of powers.
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On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied away from the issue of separation of powers and instead held that the provision violates the presentment clause and bicameralism. It held that the one-house veto was essentially legislative in purpose and effect. As such, it is subject to the procedures set out in Article I of the Constitution requiring the passage by a majority of both Houses and presentment to the President. Thus: Examination of the action taken here by one House pursuant to 244(c)(2) reveals that it was essentially legislative in purp ose and effect. In purporting to exercise power defined in Art I, 8, cl 4, to establish a uniform Rule of Naturalization, the House took action that had the purpose and effect of altering the legal rights, duties, and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the Legislative Branch. Section 244(c)(2) purports to authorize one House Congress to require the Attorney General to deport an individual alien whose deportation otherwise would be canceled under 244. The one-House veto operated in these cases to overrule the Attorney General and mandate Chadhas deportation; absent the House action, Chadha would remain in the United States. Congress has acted and its action altered Chadhas status. The legislative character of the one-House veto in these cases is confirmed by the character of the congressional action it supplants. Neither the House of Representatives nor the Senate contends that, absent the veto provision in 244(c)(2), either of them, or both of them acting together, could effectively require the Attorney General, in exercise of legislatively delegated authority, had determined the alien should remain in the United States. Without the challenged provision in 244(c)(2), this could have been achieved, if at all, only by legislation requiring deportation. Similarly, a veto by one House of Congress under 244(c)(2) cannot be justified as an attempt at amending the standards set out in 244(a)(1), or as a repeal of 244 as applied to Chadha. Amendment and repeal of statutes, no less than enactment, must conform with Art I. The nature of the decision implemented by one-House veto in these cases further manifests its legislative character. After long experience with the clumsy, time-consuming private bill procedure, Congress made a deliberate choice to delegate to the Executive Branch, and specifically to the Attorney General, the authority to allow deportable aliens to remain in this country in certain specified circumstances. It is not disputed that this choice to delegate authority is precisely the kind of decision that can be implemented only in accordance with the procedures set out in Art I. Disagreement with the Attorney Generals decision on Chadhas deportation- that is, Congress decision to deport Chadha- no less than Congress original choice to delegate to the Attorney General the authority to make decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked. Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978 and the Federal Trade Commission Improvement Act of 1980. Following this precedence, lower courts invalidated statutes containing legislative veto provisions although some of these provisions required the approval of both Houses of Congress and thus met the bicameralism requirement of Article I. Indeed, some of these veto provisions were not even exercised. Given the concept and configuration of the power of congressional oversight, the next level of inquiry is whether congress exceeded its permissible exercise in the case at bar. But before proceeding, a discussion of the nature and powers of the Commission on Elections as provided in the 1987 Constitution is decisive to the issue. Congressional Oversight and COMELEC The Commission on Elections (COMELEC) is a constitutional body exclusively charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, and is invested with the power to decide all questions affecting elections save those involving the right to vote. Given its important role in preserving the sanctity of the right of suffrage, the COMELEC was purposely constituted as a body separate from the executive, legislative, and judicial branches of government. Originally, the power to enforce our election laws was vested with the President and exercised through the Department of the Interior. According to Dean Sinco, however, the view ultimately emerged that an independent body could better protect the right of suffrage of our people. Hence, the enforcement of our election laws, while an executive power, was transferred to the COMELEC. The shift to a modified parliamentary system with the adoption of the 1973 Constitution did not alter the character of COMELEC as an independent body. Indeed, a definite tendency to enhance and invigorate the role of the Commission on Elections as the independent constitutional body charged with the safeguarding of free, peaceful and honest elections has been observed. The 1973 Constitution broadened the power of the COMELEC by making it the sole judge of all election contests relating to the election, returns and qualifications of members of the national legislature and elective provincial and city officials. Thus, the COMELEC was given judicial power aside from its traditional administrative and executive functions. The trend towards strengthening the COMELEC continued with the 1987 Constitution. Today, the COMELEC enforces and administers all laws and regulations relative to the conduct of elections, plebiscites, initiatives, referenda and recalls. Election contests involving regional, provincial and city elective officials are under its exclusive original jurisdiction while all contests involving elective municipal and barangay officials are under its appellate jurisdiction. 41 Election Laws Introductory Concepts
Several safeguards have been put in place to protect the independence of the COMELEC from unwarranted encroachment by the other branches of government. While the President appoints the Commissioners with the concurrence of the Commission on Appointments, the Commissioners are not accountable to the President in the discharge of their functions. They have a fixed tenure and are removable only by impeachment. To ensure that not all Commissioners are appointed by the same President at any one time, a staggered system of appointment was devised. Thus, of the Commissioners first appointed, three shall hold office for seven years, three for five years, and the last three for three years. Reappointment and temporary designation or appointment is prohibited. In case of vacancy, the appointee shall only serve the unexpired term of the predecessor. The COMELEC is likewise granted the power to promulgate its own rules of procedure, and to appoint its own officials and employees in accordance with Civil Service laws. The COMELEC exercises quasi-judicial powers but it is not part of the judiciary. This Court has no general power of supervision over the Commission on Elections except those specifically granted by the Constitution. As such, the Rules of Court are not applicable to the Commission on Elections. In addition, the decisions of the COMELEC are reviewable only by petition for certiorari on grounds of grave abuse of discretion, viz: Conceived by the charter as the effective instrument to preserve the sanctity of popular suffrage, endowed with independence and all the needed concomitant powers, it is but proper that the Court should accord the greatest measure of presumption of regularity to its course of action and choice of means in performing its duties, to the end that it may achieve its designed place in the democratic fabric of our government. Ideally, its members should be free from all suspicions of partisan inclinations, but the fact that actually some of them have had stints in the arena of politics should not, unless the contrary is shown, serve as basis for denying to its actuations the respect and consideration that the Constitution contemplates should be accorded to it, in the same manner that the Supreme Court itself which from time to time may have members drawn from the political ranks or even from the military is at all times deemed insulated from every degree or form of external pressure and influence as well as improper internal motivations that could arise from such background or orientation. We hold, therefore, that under the existing constitutional and statutory provisions, the certiorari jurisdiction of the Court over orders, rulings and decisions of the Comelec is not as broad as it used to be and should be confined to instances of grave abuse of discretion amounting to patent and substantial denial of due process. The COMELEC is, however, subject to congressional scrutiny especially during budget hearings. But Congress cannot abolish the COMELEC as it can in case of other agencies under the executive branch. The reason is obvious. The COMELEC is not a mere creature of the legislature; it owes its origin from the Constitution. Furthermore, the salary of the Chairman and the Commissioners cannot be decreased during their tenure. Enjoying fiscal autonomy, the COMELEC has a wider discretion in the disbursement and allocation of approved appropriations. To safeguard the COMELEC from undue legislative interference, the 1987 Constitution provides that its approved annual appropriations are to be automatically and regularly released. Also, Congress has no power to call the commissioners of the COMELEC to a question hour. The Constitution provides that the question hour is limited to heads of departments under the Executive branch, and the deliberations during the drafting of the 1987 Constitution clearly reflect this sentiment. Be that as it may, the COMELEC is mandated to submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum and recall. This provision allows Congress to review and assess the effectivity of election laws and if necessary, enact new laws or amend existing statutes. Be that as it may, I respectfully submit that the legislative veto power or congressional oversight power over the authority of COMELEC to issue rules and regulations in order to enforce election laws is unconstitutional. As aforediscussed, the Constitution divided the powers of our government into three categories, legislative, executive, and judicial. Although not hermetically sealed from one another, the powers of the three branches are functionally identifiable. In this respect, legislative power is generally exercised in the enactment of the law; executive power, in its execution; and judicial power, in its interpretation. In the absence of specific provision in the Constitution, it is fundamental under the principle of separation of powers that one branch cannot exercise or share the power of the other. In addition, our Constitution created other offices aside from the executive, the legislative and the judiciary and defined their powers and prerogatives. Among these bodies especially created by the Constitution itself is the COMELEC. The COMELEC occupies a distinct place in our scheme of government. As the constitutional body charged with the administration of our election laws, it is endowed with independence in the exercise of some of its powers and the discharge of its responsibilities. The power to promulgate rules and regulations in order to administer our election laws belongs to this category of powers as this has been vested exclusively by the 1987 Constitution to the COMELEC. It cannot be trenched upon by Congress in the exercise of its oversight powers. In Gallardo v. Tabamo, Jr., this Court traced the origin of COMELECs power to promulgate rules and regulations. It was initially a statutory grant. Both the 1935 and the 1973 Constitutions did not explicitly grant the COMELEC the power to promulgate rules and regulations. The power was vested by Congress to the COMELEC in the Omnibus Election Code, viz:
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Sec. 52. Powers and functions of the Commission on Elections.- In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have the exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections, and shall: (c) Promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to enforce and administer. This statutory power was elevated to a constitutional status with the insertion of the word regulations in section 2(1) of Article IXC of the 1987 Constitution, viz: While under the 1935 Constitution it had "exclusive charge of the enforcement and administration of all laws relative to the conduct of elections," exercised "all other functions . . . conferred upon it by law" and had the power to deputize all law enforcement agencies and instrumentalities of the Government for the purpose of insuring free, orderly and honest elections, and under the 1973 Constitution it had, inter alia, the power to (a) "[E]nforce and administer all laws relative to the conduct of elections" (b) "[D]eputize, with the consent or at the instance of the Prime Minister, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the purpose of ensuring free, orderly, and honest elections," and (c) "[P]erform such other functions as may be provided by law," it was not expressly vested with the power to promulgate regulations relative to the conduct of an election. That power could only originate from a special law enacted by Congress; this is the necessary implication of the above constitutional provision authorizing the Commission to "[P]erform such other functions as may be provided by law." The present Constitution, however, implicitly grants the Commission the power to promulgate such rules and regulations. The pertinent portion of Section 2 of Article IX-C thereof reads as follows: "SEC. 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall." (emphasis supplied) xxx xxx xxx
The word regulations is not found in either the 1935 or 1973 Constitutions. It is thus clear that its incorporation into the present Constitution took into account the Commission's power under the Omnibus Election Code (Batas Pambansa Blg. 881), which was already in force when the said Constitution was drafted and ratified, to: xxx xxx xxx
"Promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to enforce and administer . . . ." Hence, the present Constitution upgraded to a constitutional status the aforesaid statutory authority to grant the Commission broader and more flexible powers to effectively perform its duties and to insulate it further from legislative intrusions. Doubtless, if its rule-making power is made to depend on statutes, Congress may withdraw the same at any time. Indeed, the present Constitution envisions a truly independent Commission on Elections committed to ensure free, orderly, honest, peaceful and credible elections, and to serve as the guardian of the people's sacred right of suffrage the citizenry's vital weapon in effecting a peaceful change of government and in achieving and promoting political stability. The elevation of the COMELECs power to promulgate rules and regulations in the 1987 Constitution is suffused with significance. Heretofore, it was Congress that granted COMELEC the power to promulgate rules and regulations, and hence, Congress can withdraw or restrict it by the exercise of its veto or oversight power. Under the 1987 Constitution, the power to promulgate rules and regulations has been directly granted by the Constitution and no longer by Congress. Undoubtedly, the power was granted to COMELEC to strengthen its independence, hence, its exercise is beyond invasion by Congress. Under any lens, sections 19 and 25 of Rep. Act No. 9189 constitute undue restrictions on the constitutional power of the COMELEC to promulgate rules and regulations for such rules are made subject to the prior review and approval of Congress. The impugned provisions can result in the denial of this constitutionally conferred power because Congress can veto the rules and regulations the COMELEC has promulgated. Thus, I respectfully submit that sections 19 and 25 of Rep. Act No. 9189 granting Congress the power to review, revise, amend and approve the implementing rules and regulations of the COMELEC, otherwise known as subordinate legislations in other countries, are unconstitutional. 43 Election Laws Introductory Concepts
I now come to section 17.1 of Rep. Act No. 9189 which provides: Sec. 17. Voting by mail.17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries, subject to the approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following conditions: (d) (e) (f) Where the mailing system is fairly well-developed and secure to prevent occasion of fraud; Where there exists a technically established identification system that would preclude multiple or proxy voting; and Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned are adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Oversight Committee. (emphases supplied) From the law itself, it is clear that Congress has already set the necessary standards to guide the COMELEC in identifying the countries where voting by mail may be allowed, viz: (1) the countries must have a mailing system which is fairly developed and secure to prevent occasion of fraud; (2) there exists a technically established identification that would preclude multiple or proxy voting; and (3) where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned are adequate and well-secured. Since the legislative standards have been defined, all that remains is their enforcement. Our Constitution has specifically given the COMELEC the power to enforce and administer all laws and regulations relative to the conduct of an election. The power is exclusive and it ought to be self-evident that it cannot be subject to review and revision or veto by Congress in the exercise of its oversight power. Again, the reason for the exclusivity is to insulate COMELEC from the virus of partisan politics. In the exercise of this exclusive power, the Commission must be accorded considerable latitude. Unless the means and methods adopted by COMELEC are clearly illegal or constitute grave abuse of discretion, they should not be interfered with. Thus: There are no ready-made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of the laws relative to the conduct of elections, as well as in the appointment of election inspectors, we must not by any excessive zeal take away from the Commission on Elections the initiative which by constitutional and legal mandates properly belongs to it. Due regard to the independent character of the Commission, as ordained in the Constitution, requires that the power of this court to review the acts of that body should, as a general proposition, be used sparingly, but firmly in appropriate cases. We are not satisfied that the present suit is one of such cases. I join the majority in holding that section 17.1 of Rep. Act No. 9189 is unconstitutional for it allows Congress to negate the exclusive power of the COMELEC to administer and enforce election laws and regulations granted by the Constitution itself. This is not to maintain that the Implementing Rules and Regulations promulgated by the COMELEC, or the system it devised to implement voting by mail cannot be challenged. If they are illegal or constitute grave abuse of discretion, the courts can strike them down in an appropriate case. This power is vested to the courts under section 1, Article VIII of the Constitution defining the scope of judicial power, and more specifically under section 5, Article VIII empowering this Court to review, revise, reverse, modify or affirm on appeal or certiorari, all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. Again, this power is exclusive and is not meant to be shared by any other branch or agency of the government. In sum, it is my humble view that in the case at bar, Congress exceeded the permissible exercise of its oversight powers for the following reasons: (1) it restricts the COMELECs constitutional grant of power to promulgate rules and regulations; and (2) it invades COMELECs exclusive constitutional domain to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. I wish to stress, however, that granting the petition will not invalidate the entire Rep. Act No. 9189. It does not also mean that all overseas Filipinos cannot vote. The law affects two classes of overseas Filipinos: (1) those who remain a domiciliary of the Philippines but were absent at the time of the elections either briefly or for a long time; and (2) those who are now considered domiciled in foreign countries. To the first class of overseas Filipinos belong the contract workers, students, members of the diplomatic corps and their families, businessmen, and the like. To the second class belong Filipinos who are considered immigrants or permanent residents of foreign countries. The constitutional challenge in the case at bar appertains only to the inclusion of the second category of overseas Filipinos in the coverage of Rep. Act No. 9189. Likewise, the challenge on the exercise of Congressional oversight power over the 44 Election Laws Introductory Concepts
COMELEC does not taint the core of the law. It merely affects the procedure in adopting the mechanisms to implement the law. It cannot void the whole law. IN VIEW OF THE FOREGOING, I dissent from the majoritys ruling upholding the constitutionality of section 5(d) of Rep. Act No. 9189, which allows an immigrant or a permanent resident of a foreign country to vote for President, Vice-President, Senators and Party-List Representatives after executing the required affidavit. I concur, however, with the majoritys ruling upholding the constitutionality of section 18.5 of Rep. Act No. 9189 with respect to the authority given to the COMELEC to proclaim the winning candidates for Senators and Party-List Representatives but not as to the power to canvass the votes and proclaim the winning candidates for President and Vice-President. I also concur with the majority with respect to the unconstitutionality of sections 17.1, 19 and 25 of Rep. Act No. 9189 subjecting the implementation of voting by mail, and the Implementing Rules and Regulations of Rep. Act No. 9189 to be promulgated by COMELEC, to prior review and approval by Congress. I so vote. CONCURRING OPINION CARPIO, J.: The case before this Court is historic and momentous. Historic because the right of suffrage, which through the centuries painstakingly evolved into universal right, stands at the crossroads in this country. Should the right of suffrage continue its march forward and reach overseas Filipinos, or should this Court turn back this historic march here at our gates? Momentous because the core issue is the enfranchisement or disenfranchisement of some 7 million overseas Filipinos. The annual contribution of these overseas Filipinos to the national economy, in terms of hard-earned foreign exchange remitted through the banking system, equals almost 50 percent of the countrys national budget. The total remittances, recorded and unrecorded, of overseas Filipinos may even reach 18 percent of GNP, almost the same percentage that agriculture at 20 percent contributes to the GNP. The nation has hailed the overseas Filipinos as the modern-day heroes and saviors of the economy. Their blood, toil, tears and sweat have propped up the Philippine peso through all the recurring financial crises that have battered the nation. Although scattered in foreign lands across the globe, these overseas Filipinos keep abreast with developments in the Philippines through the Internet, cable and satellite TV, and even texting. In recognition of the immense contribution of overseas Filipinos to the nation, the framers of the 1987 Constitution introduced the absentee voting system, novel in this country, purposely to enfranchise the overseas Filipinos. Commissioner Blas Ople, the former Minister of Labor who started deploying abroad large numbers of Filipino workers, triggered the introduction of the absentee voting with this discourse during the deliberations of the Constitutional Commission: MR. OPLE: x x x In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said that there was no insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own or under pressure of economic necessity here, find that they have to detach themselves from their families to work in other countries with definite tenures of employment. Many of them are on contract employment for one, two, or three years. They have no intention of changing their residence on a permanent basis, but are technically disqualified from exercising the right of suffrage in their countries of destination by the residential requirement in Section 1 which says: Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who are eighteen years of a ge or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election. I, therefore, ask the Committee whether at the proper time they might entertain an amendment that will make this exercise of the right to vote abroad for Filipino citizens an effective, rather than merely a nominal right under this proposed Constitution. xxx It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of suffrage, at least a substantial segment of these overseas Filipino communities. The Committee, of course, is aware that when this Article of the Constitution explicitly and unequivocally extends the right of effective suffrage to Filipinos abroad, this will call for a logistical exercise of global proportions. In effect, this will require budgetary and administrative commitments on the part of the Philippine government, mainly through the 45 Election Laws Introductory Concepts
COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive elaboration of this mechanism that will be put in place to make effective the right to vote. Therefore, seeking shelter in some wise jurisprudence of the past may not be sufficient to meet the demands of the right of suffrage for Filipinos abroad that I have mentioned. But I want to thank the Committee for saying that an amendment to this effect may be entertained at the proper time. (Emphasis supplied) From the start, the framers of the Constitution knew that the absentee voting system for overseas Filipinos would have to be an exception to the double residency requirement in Section 1, Article V of the Constitution. This was the basic premise for introducing an express provision on absentee voting in the Constitution. Unless there is such an exception in the Constitution itself, overseas Filipinos could never vote as absentee voters in view of the double residency requirement in Section 1. Because of this double residency requirement, Congress could not enfranchise through ordinary legislation overseas Filipinos who do not comply with the double residency requirement. Thus, the framers of the Constitution, by an overwhelming vote of 28 in favor and only one against, approved Section 2, Article V of the Constitution, as follows: SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. (Emphasis supplied) After sixteen long years of debates, Congress finally enacted RA No. 9189 (the Overseas Absentee Voting Act of 2003), precisely to implement the constitutional mandate to enfranchise overseas Filipinos. Petitioner now asks the Court to strike down this law as unconstitutional mainly because it enfranchises overseas Filipinos who do not comply with the double residency requirement in Section 1, Article V of the 1987 Constitution, as follows: SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. (Emphasis supplied) Like the 1973 Constitution, Section 1, Article V of the 1987 Constitution imposes a double residency requirement before a Filipino 18 years or over may exercise the right to vote, namely: (1) one year residence in the Philippines; and (2) six months residence in the locality in the Philippines where he proposes to vote. The threshold issue is whether overseas Filipinos should comply with the double residency requirement in Section 1 of Article V to vote under the absentee voting system in Section 2 of the same Article. Stated another way, the issue is whether overseas Filipinos, many of whom are not registered voters in the Philippines, should come home twice to the Philippines just so they could vote in a foreign country as absentee Filipino voters. The first time they should come home is one year before the elections to establish residence in the Philippines. The second time is six months before the elections to establish residence in the locality in the Philippines where they propose to vote. Did the framers of the 1987 Constitution intend to inflict on overseas Filipinos such a burdensome requirement as an essential feature of the absentee voting system in Section 2 of Article V? To require absentee voters to comply with the double residency requirement is to impose an impractical and even an impossible condition to the exercise of the constitutional right to vote. In the first place, the second residency requirement of establishing residence in a locality in the Philippines where the voters propose to vote is impossible to comply since overseas Filipinos will obviously not vote in any locality in the Philippines. Imposing the double residency requirement makes the absentee voting an empty right of overseas Filipinos. Certainly, the wise framers of the Constitution were incapable of such absurd scheme. If the framers of the Constitution did not intend such an absurd requirement, should this Court now impose such absurdity on overseas Filipinos? How many overseas Filipinos would comply with the double residency requirement just to vote in Presidential and Senatorial elections? How much will overseas Filipinos spend just to come home twice within 12 months just so they could vote when they go back abroad? The concept of absentee voting negates a residency requirement in the country of citizenship of the voter. By definition, an absentee voter is a non-resident voter. Obviously, the double residency requirement in Section 1 of Article V applies only to resident or non-absentee Filipino voters. To impose the double residency requirement on absentee Filipino voters is an egregious anomaly for it will require absentee Filipino voters to comply with the same residency requirement imposed on resident or non-absentee Filipino voters. If absentee Filipino voters are required to reside in the Philippines just like resident or non-absentee Filipino voters, why create an absentee voting system for overseas Filipinos in the first place? Applying the double residency requirement on absentee voters will render the provision on absentee voting in Section 2 a surplusage, a constitutional mandate devoid of meaning. Even without the absentee voting provision in Section 1, Congress can validly enact a law allowing resident or non-absentee Filipino voters - those who comply with the double residency requirement - to vote abroad in Philippine embassies or consulates. There is no constitutional prohibition on registered Filipino voters who comply with the double residency requirement to cast their ballots at a 46 Election Laws Introductory Concepts
Philippine embassy or consulate abroad where they happen to be on election day. If the absentee voting system in Section 2 were for the benefit only of resident or non-absentee Filipinos, then there would be no need to provide for it in the Constitution. The framers of the 1987 Constitution specifically introduced the absentee voting provision in Section 2 precisely to enfranchise overseas Filipinos who do not comply with the double residency requirement in Section 1. Without the absentee voting provision in Section 2, Congress could not validly enact a law enfranchising overseas Filipinos who do not comply with the double residency requirement. As succinctly explained by Commissioner Christian Monsod during the deliberations in the Constitutional Commission: MR. MONSOD: x x x The reason we want absentee voting to be in the Constitution as a mandate to the legislature is that there could be inconsistency on the residence rule if it is just a question of legislation by Congress. So, by allowing it and saying that this is possible, then legislation can take care of the rest. Evidently, the framers of the Constitution intended the absentee voting provision as an exception to the double residency requirement. The question of how a Filipino, who has become a permanent resident or immigrant in a foreign country, may reacquire his domicile or residence in the Philippines is a matter for ordinary legislation. The reacquisition of the Philippine domicile or residence that a Filipino had lost is within the power of Congress to legislate. The Constitution does not define what domicile or residence means. There is also no constitutional prohibition against the enactment of legislation prescribing the reacquisition of domicile or residence in the Philippines, just as there is no constitutional prohibition against the enactment of legislation prescribing the reacquisition of Philippine citizenship. Thus, RA No. 8171 allows a former natural-born Filipino who became a foreigner to reacquire Philippine citizenship by filing a simplified administrative petition and taking an oath of allegiance to the Philippines. Section 5(d) of RA No. 9189, which prescribes the reacquisition of residence by a Filipino through the execution of an affidavit stating he is resuming residence in the Philippines, is similarly well within the power of Congress to enact and is thus constitutional. While the absentee voting system is new in this country, it is well established in other countries. In the United States, all U.S. citizens 18 years or over who reside outside the United States during an election are eligible to vote as absentee voters. The trend in the United States is to allow no-excuse absentee voting, that is, a qualified or registered voter may avail of absentee voting for any reason. Absentee voting is understood in other jurisdictions as voting by a qualified or registered voter without any residency requirement. In the present case, petitioner wants a double residency requirement imposed on absentee Filipino voters. The right of suffrage is the cornerstone of a representative government like that established in the 1987 Constitution. A representative government is legitimate when those represented elect their representatives in government. The consent of the governed is what stamps legitimacy on those who govern. This consent is expressed through the right of suffrage. It is a precious right for which many have fought and died so that others may freely exercise it. A government that denies such right on flimsy or meaningless grounds does so at its peril. The International Covenant on Civil and Political Rights, to which the Philippines is a signatory, requires the Philippines to respect the peoples right of suffrage without unreasonable restrictions. Thus, Article 25 of the Covenant provides: Article 25. Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; x x x. (Emphasis supplied) The Philippines is duty bound under international law to comply in good faith with its treaty obligations under the Covenant. To require overseas Filipinos to return to the Philippines twice within 12 months so they may vote abroad as absentee voters is plainly an unreasonable restriction outlawed by the Covenant. When the framers of the Constitution introduced absentee voting in Section 2 of Article V, they were aware of the countrys obligations under the Covenant. In their discussions on the death penalty, human rights and the Bill of Rights, the framers of the Constitution often referred to the countrys obligations under the Covenant. It is inconceivable that the framers intended overseas Filipinos to comply with the double residency requirement, an unreasonable restriction that would patently violate Article 25 of the Covenant and practically negate the overseas Filipinos right of suffrage.
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There are some 40 countries in the world, including our ASEAN neighbors Indonesia and Thailand, which grant their overseas citizens the right to vote while residing abroad. The inexorable direction of history is to bestow on every person the right to vote wherever he may be in this global village. Modern technology and telecommunications are making this happen even now. Those who insist on the double residency requirement as an essential condition for absentee voting by overseas Filipinos are turning back in vain the clock of history. The framers of the Constitution expressly mandated Congress to enact an absentee voting law to enfranchise overseas Filipinos. Congress has enacted such a law after a long and difficult struggle by overseas Filipinos who patiently waited for 16 years for the enactment of the law. That struggle is now part of the world history of the evolution of the right of suffrage as a universal right. No frivolous, absurd or impractical conditions should stand in the way of enfranchising overseas Filipinos whose contribution to the national economy is immeasurable. Like the framers of the 1987 Constitution and the members of Congress, I vote to enfranchise our 7 million overseas Filipinos. This is an explicit constitutional mandate that the Court, like Congress, must honor and respect. I therefore concur entirely with the ponencia of Justice Ma. Alicia Austria-Martinez.
Punos Separate Opinion, Macalintal vs. COMELEC, G.R. No. 157013, July 10, 2003 PLATO - rejected democracy as tyranny of the majority (numerical superiority) and supported the philosopher-king rule ARISTOTLE - democracy is desirable but only under certain conditions and of the upper class; will of the enlightened many INDUSTRIAL REVOLUTION - social contract theory; the people exercise their sovereignty and creates a government to which they consent
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS, Petitioners, vs. THE COMMISSION ON ELECTIONS, Respondent. x--------------------------------------------------------x ALTERNATIVE LAW GROUPS, INC., Intervenor. x ------------------------------------------------------ x ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors. x------------------------------------------------------ x ATTY. PETE QUIRINO QUADRA, Intervenor. x--------------------------------------------------------x BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas, MIGRANTE represented by its Chairperson Concepcion Bragas-Regalado, GABRIELA represented by its Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR. REGINALD PAMUGAS of Health Action for Human Rights, Intervenors. x--------------------------------------------------------x LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-BARAQUEL, Intervenors. x--------------------------------------------------------x ARTURO M. DE CASTRO, Intervenor. x ------------------------------------------------------- x TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor. x---------------------------------------------------------x LUWALHATI RICASA ANTONINO, Intervenor. x ------------------------------------------------------- x PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors. x ------------------------------------------------------- x 49 Election Laws Introductory Concepts
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors. x -------------------------------------------------------- x PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR. VICTORINO F. BALAIS, Intervenors. x -------------------------------------------------------- x SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., Intervenor. x ------------------------------------------------------- x SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor. x ------------------------------------------------------- x JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR, and RANDALL TABAYOYONG, Intervenors. x -------------------------------------------------------- x INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE CHAPTERS, Intervenors. x --------------------------------------------------------x SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors. x -----------------------------------------------------x JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors. x -----------------------------------------------------x G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG, Petitioners, vs. COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter Doe,, Respondent.
DECISION
CARPIO, J.: The Case These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections ("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution. Antecedent Facts
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On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado ("Lambino Group"), with other 1 groups and individuals, commenced gathering signatures for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under Section 5(b) and 2 3 (c) and Section 7 of Republic Act No. 6735 or the Initiative and Referendum Act ("RA 6735"). The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least twelve per centum (12%) of all registered voters, with each legislative district represented by at least three per centum (3%) of its registered voters. The Lambino Group also claimed that COMELEC election registrars had verified the signatures of the 6.3 million individuals. The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI (Legislative Department) 5 6 and Sections 1-4 of Article VII (Executive Department) and by adding Article XVIII entitled "Transitory Provisions." These proposed changes will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The Lambino Group prayed that after due publication of their petition, the COMELEC should submit the following proposition in a plebiscite for the voters' ratification: DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER? On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating modifications in the proposed Article 7 XVIII (Transitory Provisions) of their initiative. The Ruling of the COMELEC On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino Group's petition for lack of an enabling law governing initiative petitions to amend the Constitution. The COMELEC invoked this Court's ruling in Santiago v. Commission on 8 9 Elections declaring RA 6735 inadequate to implement the initiative clause on proposals to amend the Constitution. In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel the COMELEC to give due course to their initiative petition. The Lambino Group contends that the COMELEC committed grave abuse of discretion in denying due course to their petition since Santiago is not a binding precedent. Alternatively, the Lambino Group claims that Santiago binds only the parties to that case, and their petition deserves cognizance as an expression of the "will of the sovereign people." In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC Commissioners to show cause why they should not be cited in contempt for the COMELEC's verification of signatures and for "entertaining" the Lambino Group's petition despite the permanent injunction in Santiago. The Court treated the Binay Group's petition as an opposition-in-intervention. In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the petitioners, urging the Court to grant the petition despite the Santiago ruling. The Solicitor General proposed that the Court treat RA 6735 and its implementing rules "as temporary devises to implement the system of initiative." Various groups and individuals sought intervention, filing pleadings supporting or opposing the Lambino Group's petition. The 10 supporting intervenors uniformly hold the view that the COMELEC committed grave abuse of discretion in relying on Santiago. On the 11 other hand, the opposing intervenors hold the contrary view and maintain that Santiago is a binding precedent. The opposing intervenors also challenged (1) the Lambino Group's standing to file the petition; (2) the validity of the signature gathering and verification process; (3) the Lambino Group's compliance with the minimum requirement for the percentage of voters supporting an 12 initiative petition under Section 2, Article XVII of the 1987 Constitution; (4) the nature of the proposed changes as revisions and not mere amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's compliance with the requirement in Section 10(a) of RA 6735 limiting initiative petitions to only one subject. The Court heard the parties and intervenors in oral arguments on 26 September 2006. After receiving the parties' memoranda, the Court considered the case submitted for resolution. The Issues The petitions raise the following issues: 1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the Constitution on amendments to the Constitution through a people's initiative; 51 Election Laws Introductory Concepts
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2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to implement the initiative clause on proposals to amend the Constitution; and 3. Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino Group's petition. The Ruling of the Court There is no merit to the petition. The Lambino Group miserably failed to comply with the basic requirements of the Constitution for conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the Lambino Group's glaring failure to comply with the basic requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse of discretion is attributable to the Commision on Elections. 1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct Proposal by the People Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people's initiative to propose amendments to the Constitution. This section states: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters of which every legislative district must be represented by at least three per centum of the registered voters therein. x x x x (Emphasis supplied) The deliberations of the Constitutional Commission vividly explain the meaning of an amendment "directly proposed by the people through initiative upon a petition," thus: MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. Is the draft of the proposed constitutional amendment ready to be shown to the people when they are asked to sign? MR. SUAREZ: That can be reasonably assumed, Madam President. MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign. Now, who prepares the draft? MR. SUAREZ: The people themselves, Madam President. MR. RODRIGO: No, because before they sign there is already a draft shown to them and they are asked whether or not they want to propose this constitutional amendment. MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for signature. supplied)
13
(Emphasis
Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional amendment" should be "ready and shown" to the people "before" they sign such proposal. The framers plainly stated that "before they sign there is already a draft shown to them." The framers also "envisioned" that the people should sign on the proposal itself because the proponents must "prepare that proposal and pass it around for signature." The essence of amendments "directly proposed by the people through initiative upon a petition" is that the entire proposal on its face is a petition by the people. This means two essential elements must be present. First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition. These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition. Thus, an amendment is "directly proposed by the people through initiative upon a petition" only if the people sign on a petition that contains the full text of the proposed amendments. The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached, the petition must state the fact of such attachment. This is an assurance that every one of the several millions of signatories to the petition had seen the full text of the proposed amendments before signing. Otherwise, it is physically impossible, given the time constraint, to prove that every one of the millions of signatories had seen the full text of the proposed amendments before signing. 52 Election Laws Introductory Concepts
The framers of the Constitution directly borrowed the concept of people's initiative from the United States where various State 15 constitutions incorporate an initiative clause. In almost all States which allow initiative petitions, the unbending requirement is that the people must first see the full text of the proposed amendments before they sign to signify their assent, and that the 16 people must sign on an initiative petition that contains the full text of the proposed amendments. The rationale for this requirement has been repeatedly explained in several decisions of various courts. Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts, affirmed by the First Circuit Court of Appeals, declared: [A] signature requirement would be meaningless if the person supplying the signature has not first seen what it is that he or she is signing. Further, and more importantly, loose interpretation of the subscription requirement can pose a significant potential for fraud. A person permitted to describe orally the contents of an initiative petition to a potential signer, without the signer having actually examined the petition, could easily mislead the signer by, for example, omitting, downplaying, or even flatly misrepresenting, portions of the petition that might not be to the signer's liking. This danger seems particularly acute when, in this case, the person giving the description is the drafter of the petition, who obviously 17 has a vested interest in seeing that it gets the requisite signatures to qualify for the ballot. (Boldfacing and underscoring supplied) Likewise, in Kerr v. Bradbury,
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the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by initiative commonly are described in similar terms. x x x (The purpose of the full text requirement is to provide sufficient information so that registered voters can intelligently evaluate whether to sign the initiative petition."); x x x (publication of full text of amended constitutional provision required because it is "essential for the elector to have x x x the section which is proposed to be added to or subtracted from. If he is to vote intelligently, he must have this knowledge. Otherwise in many instances he would be required to vote in the dark.") (Emphasis supplied) Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed" and failure to 19 do so is "deceptive and misleading" which renders the initiative void. Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the proposed amendments. However, the deliberations of the framers of our Constitution clearly show that the framers intended to adopt the relevant American jurisprudence on people's initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the framers intended that the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as valid, requires that the people must sign the "petition x x x as signatories." The proponents of the initiative secure the signatures from the people. The proponents secure the signatures in their private capacity and not as public officials. The proponents are not disinterested parties who can impartially explain the advantages and disadvantages of the proposed amendments to the people. The proponents present favorably their proposal to the people and do not present the arguments against their proposal. The proponents, or their supporters, often pay those who gather the signatures. Thus, there is no presumption that the proponents observed the constitutional requirements in gathering the signatures. The proponents bear the burden of proving that they complied with the constitutional requirements in gathering the signatures - that the petition contained, or incorporated by attachment, the full text of the proposed amendments. The Lambino Group did not attach to their present petition with this Court a copy of the paper that the people signed as their initiative 20 petition. The Lambino Group submitted to this Court a copy of a signature sheet after the oral arguments of 26 September 2006 when they filed their Memorandum on 11 October 2006. The signature sheet with this Court during the oral arguments was the 21 signature sheet attached to the opposition in intervention filed on 7 September 2006 by intervenor Atty. Pete Quirino-Quadra. The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the Lambino Group's Memorandum are the same. We reproduce below the signature sheet in full: Province: Legislative District: City/Municipality: Barangay: Verified Signatures: PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY 53 Election Laws Introductory Concepts No. of
SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?" I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which shall form part of the petition for initiative to amend the Constitution signifies my support for the filing thereof. Precinct Name Number Last Name, Name, M.I. 1 2 3 4 5 6 7 8 9 10 _________________ Barangay (Print Name and Sign) Official _________________ Witness (Print Name and Sign) __________________ Witness (Print Name and Sign) First Address Birthdate MM/DD/YY Signature Verification
There is not a single word, phrase, or sentence of text of the Lambino Group's proposed changes in the signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral arguments before this Court on 26 September 2006. The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the UnicameralParliamentary system of government. The signature sheet does not show to the people the draft of the proposed changes before they are asked to sign the signature sheet. Clearly, the signature sheet is not the "petition" that the framers of the Constitution envisioned when they formulated the initiative clause in Section 2, Article XVII of the Constitution. Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to August 2006, the Lambino Group circulated, together with the signature sheets, printed copies of the Lambino Group's draft petition which they later filed on 25 August 2006 with the COMELEC. When asked if his group also circulated the draft of their amended petition filed on 30 August 2006 with the COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty. Lambino changed his answer and stated that what his group circulated was the draft of the 30 August 2006 amended petition, not the draft of the 25 August 2006 petition. The Lambino Group would have this Court believe that they prepared the draft of the 30 August 2006 amended petition almost seven months earlier in February 2006 when they started gathering signatures. Petitioner Erico B. Aumentado's "Verification/Certification" of the 25 August 2006 petition, as well as of the 30 August 2006 amended petition, filed with the COMELEC, states as follows: I have caused the preparation of the foregoing [Amended] Petition in my personal capacity as a registered voter, for and on behalf of the Union of Local Authorities of the Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached, and as representative of the mass of signatories hereto. (Emphasis supplied) The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition. However, the "Official Website of 22 the Union of Local Authorities of the Philippines" has posted the full text of Resolution No. 2006-02, which provides: RESOLUTION NO. 2006-02 RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION
54
WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a common stand on the approach to support the proposals of the People's Consultative Commission on Charter Change; WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint Declaration for Constitutional Reforms signed by the members of the ULAP and the majority coalition of the House of Representatives in Manila Hotel sometime in October 2005; WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency to recommend amendments to the 1987 Constitution has submitted its final report sometime in December 2005; WHEREAS, the ULAP is mindful of the current political developments in Congress which militates against the use of the expeditious form of amending the 1987 Constitution; WHEREAS, subject to the ratification of its institutional members and the failure of Congress to amend the Constitution as a constituent assembly, ULAP has unanimously agreed to pursue the constitutional reform agenda through People's Initiative and Referendum without prejudice to other pragmatic means to pursue the same; WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION; DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at the Century Park Hotel, 23 Manila. (Underscoring supplied) ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter Change through people's initiative and referendum as a mode of amending the 1987 24 Constitution." The proposals of the Consultative Commission are vastly different from the proposed changes of the Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with the COMELEC. For example, the proposed revisions of the Consultative Commission affect all provisions of the existing Constitution, from the Preamble to the Transitory Provisions. The proposed revisions have profound impact on the Judiciary and the National Patrimony provisions of the existing Constitution, provisions that the Lambino Group's proposed changes do not touch. The Lambino Group's proposed changes purport to affect only Articles VI and VII of the existing Constitution, including the introduction of new Transitory Provisions. The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the filing of the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC. However, ULAP Resolution No. 2006-02 does not establish that ULAP or the Lambino Group caused the circulation of the draft petition, together with the signature sheets, six months before the filing with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the Lambino Group's claim that they circulated the draft petition together with the signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the Lambino Group's proposed changes. In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group declared: After the Petition was filed, Petitioners belatedly realized that the proposed amendments alleged in the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of Section 5 of the Transitory Provisions were inaccurately stated and failed to correctly reflect their proposed amendments. The Lambino Group did not allege that they were amending the petition because the amended petition was what they had shown to the people during the February to August 2006 signature-gathering. Instead, the Lambino Group alleged that the petition of 25 August 2006 "inaccurately stated and failed to correctly reflect their proposed amendments." The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC that they circulated printed copies of the draft petition together with the signature sheets. Likewise, the Lambino Group did not allege in their present petition before this Court that they circulated printed copies of the draft petition together with the signature sheets. The signature sheets do not also contain any indication that the draft petition is attached to, or circulated with, the signature sheets. It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first claimed that they circulated the "petition for initiative filed with the COMELEC," thus: 55 Election Laws Introductory Concepts
[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer who did not read the measure attached to a referendum petition cannot question his signature on the ground that he did not understand the nature of the act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who signed the signature sheets circulated together with the petition for initiative filed with the COMELEC below, are presumed to have understood the proposition contained in the petition. (Emphasis supplied) The Lambino Group's statement that they circulated to the people "the petition for initiative filed with the COMELEC" appears an afterthought, made after the intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that the signature sheets did not contain the text of the proposed changes. In their Consolidated Repl y, the Lambino Group alleged that they circulated "the petition for initiative" but failed to mention the amended petition. This contradicts what Atty. Lambino finally stated during the oral arguments that what they circulated was the draft of the amended petition of 30 August 2006. The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not read the measure attached to a referendum petition cannot question his signature on the ground that he did not understand the nature of the act." The Lambino Group quotes an authority that cites a proposed change attached to the petition signed by the people. Even the authority the Lambino Group quotes requires that the proposed change must be attached to the petition. The same authority the Lambino Group quotes requires the people to sign on the petition itself. Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated with, or attached to, the initiative petition signed by the people. In the present initiative, the Lambino Group's proposed changes were not incorporated with, or attached to, the signature sheets. The Lambino Group's citation of Corpus Juris Secundum pulls the rug from under their feet. It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to August 2006 during the signaturegathering period, the draft of the petition or amended petition they filed later with the COMELEC. The Lambino Group are less than candid with this Court in their belated claim that they printed and circulated, together with the signature sheets, the petition or amended petition. Nevertheless, even assuming the Lambino Group circulated the amended petition during the signature-gathering period, the Lambino Group admitted circulating only very limited copies of the petition. During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000 copies of the draft petition they filed more than six months later with the COMELEC. Atty. Lambino added that he also asked other supporters to print additional copies of the draft petition but he could not state with certainty how many additional copies the other supporters printed. Atty. Lambino could only assure this Court of the printing of 100,000 copies because he himself caused the printing of these 100,000 copies. Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group expressly admits that "petitioner 25 Lambino initiated the printing and reproduction of 100,000 copies of the petition for initiative x x x." This admission binds the Lambino Group and establishes beyond any doubt that the Lambino Group failed to show the full text of the proposed changes to the great majority of the people who signed the signature sheets. Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one copy each of the petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and company attached one copy of the petition to each signature sheet, only 100,000 signature sheets could have circulated with the petition. Each signature sheet contains space for ten signatures. Assuming ten people signed each of these 100,000 signature sheets with the attached petition, the maximum number of people who saw the petition before they signed the signature sheets would not exceed 1,000,000. With only 100,000 printed copies of the petition, it would be physically impossible for all or a great majority of the 6.3 million signatories to have seen the petition before they signed the signature sheets. The inescapable conclusion is that the Lambino Group failed to show to the 6.3 million signatories the full text of the proposed changes. If ever, not more than one million signatories saw the petition before they signed the signature sheets. In any event, the Lambino Group's signature sheets do not contain the full text of the proposed changes, either on the face of the signature sheets, or as attachment with an indication in the signature sheet of such attachment. Petitioner Atty. Lambino admitted this during the oral arguments, and this admission binds the Lambino Group. This fact is also obvious from a mere reading of the signature sheet. This omission is fatal. The failure to so include the text of the proposed changes in the signature sheets renders the initiative void for non-compliance with the constitutional requirement that the amendment must be "directly proposed by the people through initiative upon a petition." The signature sheet is not the "petition" envisioned in the initiative clause of the Constitution. For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full text of the proposed changes before signing. They could not have known the nature and effect of the proposed changes, among which are: 1. The term limits on members of the legislature will be lifted and thus members of Parliament can be re-elected 26 indefinitely; 56 Election Laws Introductory Concepts
2. The interim Parliament can continue to function indefinitely until its members, who are almost all the present members of Congress, decide to call for new parliamentary elections. Thus, the members of the interim Parliament will determine the 27 expiration of their own term of office; 3. Within 45 days from the ratification of the proposed changes, the interim Parliament shall convene to propose further 28 amendments or revisions to the Constitution. These three specific amendments are not stated or even indicated in the Lambino Group's signature sheets. The people who signed the signature sheets had no idea that they were proposing these amendments. These three proposed changes are highly controversial. The people could not have inferred or divined these proposed changes merely from a reading or rereading of the contents of the signature sheets. During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people during the signature-gathering that the elections for the regular Parliament would be held during the 2007 local elections if the proposed changes were ratified before the 2007 local elections. However, the text of the proposed changes belies this. The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states: Section 5(2). The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials. x x x x (Emphasis supplied) Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with the 2007 local elections. This section merely requires that the elections for the regular Parliament shall be held simultaneously with the local elections without specifying the year. Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily written the word "next" before the phrase "election of all local government officials." This would have insured that the elections for the regular Parliament would be held in the next local elections following the ratification of the proposed changes. However, the absence of the word "next" allows the interim Parliament to schedule the elections for the regular Parliament simultaneously with any future local elections. Thus, the members of the interim Parliament will decide the expiration of their own term of office. This allows incumbent members of the House of Representatives to hold office beyond their current three-year term of office, and possibly even beyond the five-year term of office of regular members of the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his group to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group deceived the 6.3 million signatories, and even the entire nation. This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group because the signature sheets did not contain the full text of the proposed changes. The result is a grand deception on the 6.3 million signatories who were led to believe that the proposed changes would require the holding in 2007 of elections for the regular Parliament simultaneously with the local elections. The Lambino Group's initiative springs another surprise on the people who signed the signature sheets. The proposed changes mandate the interim Parliament to make further amendments or revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions, provides: Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. (Emphasis supplied) During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court and the people should simply ignore it. Far from being a surplusage, this provision invalidates the Lambino Group's initiative. Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling - when the initiative petition incorporates an unrelated subject matter in the same petition. This puts the people in a dilemma since they can answer only either yes or no to the entire proposition, forcing them to sign a petition that effectively contains two propositions, one of which they may find unacceptable. Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only the unrelated subject matter. 29 Thus, in Fine v. Firestone, the Supreme Court of Florida declared:
57
Combining multiple propositions into one proposal constitutes "logrolling," which, if our judicial responsibility is to mean anything, we cannot permit. The very broadness of the proposed amendment amounts to logrolling because the electorate cannot know what it is voting on - the amendment's proponents' simplistic explanation reveals only the tip of the iceberg. x x x x The ballot must give the electorate fair notice of the proposed amendment being voted on. x x x x The ballot language in the instant case fails to do that. The very broadness of the proposal makes it impossible to state what it will affect and effect and violates the requirement that proposed amendments embrace only one subject. (Emphasis supplied) Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine, "inadvertence, stealth and fraud" in logrolling:
30
the Supreme Court of Alaska warned against
Whenever a bill becomes law through the initiative process, all of the problems that the single-subject rule was enacted to prevent are exacerbated. There is a greater danger of logrolling, or the deliberate intermingling of issues to increase the likelihood of an initiative's passage, and there is a greater opportunity for "inadvertence, stealth and fraud" in the enactment-by-initiative process. The drafters of an initiative operate independently of any structured or supervised process. They often emphasize particular provisions of their proposition, while remaining silent on other (more complex or less appealing) provisions, when communicating to the public. x x x Indeed, initiative promoters typically use simplistic advertising to present their initiative to potential petition-signers and eventual voters. Many voters will never read the full text of the initiative before the election. More importantly, there is no process for amending or splitting the several provisions in an initiative proposal. These difficulties clearly distinguish the initiative from the legislative process. (Emphasis supplied) Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be undertaken by the interim Parliament as a constituent assembly. The people who signed the signature sheets could not have known that their signatures would be used to propose an amendment mandating the interim Parliament to propose further amendments or revisions to the Constitution. Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to amend or revise again the Constitution within 45 days from ratification of the proposed changes, or before the May 2007 elections. In the absence of the proposed Section 4(4), the interim Parliament has the discretion whether to amend or revise again the Constitution. With the proposed Section 4(4), the initiative proponents want the interim Parliament mandated to immediately amend or revise again the Constitution. However, the signature sheets do not explain the reason for this rush in amending or revising again so soon the Constitution. The signature sheets do not also explain what specific amendments or revisions the initiative proponents want the interim Parliament to make, and why there is a need for such further amendments or revisions. The people are again left in the dark to fathom the nature and effect of the proposed changes. Certainly, such an initiative is not "directly proposed by the people" because the people do not even know the nature and effect of the proposed changes. There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August 2006. The proposed Section 4(3) of the Transitory Provisions states: Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until noon of the thirtieth day of June 2010. After 30 June 2010, not one of the present Senators will remain as member of Parliament if the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010. However, there is no counterpart provision for the present members of the House of Representatives even if their term of office will all end on 30 June 2007, three years earlier than that of half of the present Senators. Thus, all the present members of the House will remain members of the interim Parliament after 30 June 2010. The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all the powers of the President. If the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010, the Prime Minister will come only from the present members of the House of Representatives to the exclusion of the present Senators. The signature sheets do not explain this discrimination against the Senators. The 6.3 million people who signed the signature sheets could not have known that their signatures would be used to discriminate against the Senators. They could not have known that their signatures would be used to limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to members of the existing House of Representatives. An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people. That is why the Constitution requires that an initiative must be "directly proposed by the people x x x in a petition" - meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nation's fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general or special power of attorney to unnamed, faceless, and unelected individuals.
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The Constitution entrusts to the people the power to directly propose amendments to the Constitution. This Court trusts the wisdom of the people even if the members of this Court do not personally know the people who sign the petition. However, this trust emanates from a fundamental assumption: the full text of the proposed amendment is first shown to the people before they sign the petition, not after they have signed the petition. In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must be "directly proposed by the people through initiative upon a petition." 2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives A people's initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution. Article XVII of the Constitution provides: ARTICLE AMENDMENTS OR REVISIONS Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members, or (2) A constitutional convention. Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative x x x. (Emphasis supplied) Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon threefourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a people's initiative. Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode, applies only to "[A]mendments to this Constitution." This distinction was intentional as shown by the following deliberations of the Constitutional Commission: MR. SUAREZ: Thank you, Madam President. May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should be limited to amendments to the Constitution and should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. x x xx xxxx MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision? MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the Committee. XVII
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MS. AQUINO: In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas, the process of initiation to amend, which is given to the public, would only apply to amendments? MR. SUAREZ: That is right. Those were the terms envisioned in the Committee. MS. AQUINO: I thank the sponsor; and thank you, Madam President. xxxx MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"? MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." MR. MAAMBONG: Thank you.
31
(Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction between "amendment" and "revision" of the Constitution. The framers intended, and wrote, that only Congress or a constitutional convention may propose revisions to the Constitution. The framers intended, and wrote, that a people's initiative may propose only amendments to the Constitution. Where the intent and language of the Constitution clearly withhold from the people the power to propose revisions to the Constitution, the people cannot propose revisions even as they are empowered to propose amendments. This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden v. Jordan, of California ruled:
32
the Supreme Court
The initiative power reserved by the people by amendment to the Constitution x x x applies only to the proposing and the adopting or rejecting of 'laws and amendments to the Constitution' and does not purport to extend to a constitutional revision. x x x x It is thus clear that a revision of the Constitution may be accomplished only through ratification by the people of a revised constitution proposed by a convention called for that purpose as outlined hereinabove. Consequently if the scope of the proposed initiative measure (hereinafter termed 'the measure') now before us is so broad that if such measure became law a substantial revision of our present state Constitution would be effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention, and the writ sought by petitioner should issue. x x x x (Emphasis supplied) Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:
33
It is well established that when a constitution specifies the manner in which it may be amended or revised, it can be altered by those who favor amendments, revision, or other change only through the use of one of the specified means. The constitution itself recognizes that there is a difference between an amendment and a revision; and it is obvious from an examination of the measure here in question that it is not an amendment as that term is generally understood and as it is used in Article IV, Section 1. The document appears to be based in large part on the revision of the constitution drafted by the 'Commission for Constitutional Revision' authorized by the 1961 Legislative Assembly, x x x and submitted to the 1963 Legislative Assembly. It failed to receive in the Assembly the two-third's majority vote of both houses required by Article XVII, Section 2, and hence failed of adoption, x x x. While differing from that document in material respects, the measure sponsored by the plaintiffs is, nevertheless, a thorough overhauling of the present constitution x x x. To call it an amendment is a misnomer. Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the people through the initiative. If a revision, it is subject to the requirements of Article XVII, Section 2(1); if a new constitution, it can only be proposed at a convention called in the manner provided in Article XVII, Section 1. x x x x Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose amendments to the Constitution since the Constitution itself limits initiatives to amendments. There can be no deviation from the constitutionally prescribed modes of revising the Constitution. A popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the specific modes prescribed in the Constitution itself. 60 Election Laws Introductory Concepts
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:
34
It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the instrument itself, and that any attempt to revise a constitution in a manner other than the one provided in the instrument is almost invariably treated as extra-constitutional and revolutionary. x x x x "While it is universally conceded that the people are sovereign and that they have power to adopt a constitution and to change their own work at will, they must, in doing so, act in an orderly manner and according to the settled principles of constitutional law. And where the people, in adopting a constitution, have prescribed the method by which the people may alter or amend it, an attempt to change the fundamental law in violation of the self-imposed restrictions, is unconstitutional." x x x x (Emphasis supplied) This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn oath and duty to insure compliance with the clear command of the Constitution that a people's initiative may only amend, never revise, the Constitution. The question is, does the Lambino Group's initiative constitute an amendment or revision of the Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition should be dismissed for being outside the scope of Section 2, Article XVII of the Constitution. Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the earliest cases that recognized the distinction described the fundamental difference in this manner: [T]he very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term "amendment" implies such an addition or change within the lines of the original instrument as will effect an 35 improvement, or better carry out the purpose for which it was framed. (Emphasis supplied) Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is "so extensive in its provisions as to change directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous 36 existing provisions." The court examines only the number of provisions affected and does not consider the degree of the change. The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the 37 change will "accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision." Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic 38 governmental plan" includes "change in its fundamental framework or the fundamental powers of its Branches." A change in the nature of the basic governmental plan also includes changes that "jeopardize the traditional form of government and the system of 39 check and balances." Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles - Article VI on the Legislature and Article VII on the 40 Executive - affecting a total of 105 provisions in the entire Constitution. Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature. A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of government. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution. By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the Lambino Group's proposed changes, it is readily apparent that the changes will radically alter Election Laws Introductory Concepts
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the framework of government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading member of the Constitutional Commission, writes: An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document which have over-all implications for the entire document, to determine how and to what extent they should be altered. Thus, for instance a switch from the presidential system to a parliamentary system would be a revision because of its over-all impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system be because of its effect on other important provisions of the 41 Constitution. (Emphasis supplied) In Adams v. Gunter, an initiative petition proposed the amendment of the Florida State constitution to shift from a bicameral to a unicameral legislature. The issue turned on whether the initiative "was defective and unauthorized where [the] proposed amendment would x x x affect several other provisions of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside the scope of the initiative clause, ruled as follows: The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a Unicameral Legislature affects not only many other provisions of the Constitution but provides for a change in the form of the legislative branch of government, which has been in existence in the United States Congress and in all of the states of the nation, except one, since the earliest days. It would be difficult to visualize a more revolutionary change. The concept of a House and a Senate is basic in the American form of government. It would not only radically change the whole pattern of government in this state and tear apart the whole fabric of the Constitution, but would even affect the physical facilities necessary to carry on government. xxxx We conclude with the observation that if such proposed amendment were adopted by the people at the General Election and if the Legislature at its next session should fail to submit further amendments to revise and clarify the numerous inconsistencies and conflicts which would result, or if after submission of appropriate amendments the people should refuse to adopt them, simple chaos would prevail in the government of this State. The same result would obtain from an amendment, for instance, of Section 1 of Article V, to provide for only a Supreme Court and Circuit Courts-and there could be other examples too numerous to detail. These examples point unerringly to the answer. The purpose of the long and arduous work of the hundreds of men and women and many sessions of the Legislature in bringing about the Constitution of 1968 was to eliminate inconsistencies and conflicts and to give the State a workable, accordant, homogenous and up-to-date document. All of this could disappear very quickly if we were to hold that it could be 43 amended in the manner proposed in the initiative petition here. (Emphasis supplied) The rationale of the Adams decision applies with greater force to the present petition. The Lambino Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to merge the executive and legislative departments. The initiative in Adams did not even touch the executive department. In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that would be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's present initiative, no less than 105 provisions of the Constitution 44 would be affected based on the count of Associate Justice Romeo J. Callejo, Sr. There is no doubt that the Lambino Group's present initiative seeks far more radical changes in the structure of government than the initiative in Adams. The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called "revisions" because members of the deliberative body work full-time on the changes. However, the same substantive changes, when proposed through an initiative, are called "amendments" because the changes are made by ordinary people who do not make an "occupation, profession, or vocation" out of such endeavor. Thus, the Lambino Group makes the following exposition of their theory in their Memorandum: 99. With this distinction in mind, we note that the constitutional provisions expressly provide for both "amendment" and "revision" when it speaks of legislators and constitutional delegates, while the same provisions expressly provide only for "amendment" when it speaks of the people. It would seem that the apparent distinction is based on the actual experience of the people, that on one hand the common people in general are not expected to work full-time on the matter of correcting the constitution because that is not their occupation, profession or vocation; while on the other hand, the legislators and constitutional convention delegates are expected to work full-time on the same matter because that is their occupation, 62 Election Laws Introductory Concepts
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profession or vocation. Thus, the difference between the words "revision" and "amendment" pertain only to the process or procedure of coming up with the corrections, for purposes of interpreting the constitutional provisions. 100. Stated otherwise, the difference between "amendment" and "revision" cannot reasonably be in the substance or extent of the correction. x x x x (Underlining in the original; boldfacing supplied) The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same proposed changes that the Lambino Group wrote in the present initiative, the changes would constitute a revision of the Constitution. Thus, the Lambino Group concedes that the proposed changes in the present initiative constitute a revision if Congress or a constitutional convention had drafted the changes. However, since the Lambino Group as private individuals drafted the proposed changes, the changes are merely amendments to the Constitution. The Lambino Group trivializes the serious matter of changing the fundamental law of the land. The express intent of the framers and the plain language of the Constitution contradict the Lambino Group's theory. Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent 45 and language. Any theory espousing a construction contrary to such intent and language deserves scant consideration. More so, if such theory wreaks havoc by creating inconsistencies in the form of government established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's position. Any theory advocating that a proposed change involving a radical structural change in government does not constitute a revision justly deserves rejection. The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have attempted to advance without any 46 success. In Lowe v. Keisling, the Supreme Court of Oregon rejected this theory, thus: Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by initiative. His theory is that Article XVII, section 2 merely provides a procedure by which the legislature can propose a revision of the constitution, but it does not affect proposed revisions initiated by the people. Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the constitution that cannot be enacted through the initiative process. They assert that the distinction between amendment and revision is determined by reviewing the scope and subject matter of the proposed enactment, and that revisions are not limited to "a formal overhauling of the constitution." They argue that this ballot measure proposes far reaching changes outside the lines of the original instrument, including profound impacts on existing fundamental rights and radical restructuring of the government's relationship with a defined group of citizens. Plaintiffs assert that, because the proposed ballot measure "will refashion the most basic principles of Oregon constitutional law," the trial court correctly held that it violated Article XVII, section 2, and cannot appear on the ballot without the prior approval of the legislature. We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of the constitution may not be accomplished by initiative, because of the provisions of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed amendments, the court said: "From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of amending the Oregon Constitution, but it contains no similar sanction for its use as a means of revising the constitution." x x x x It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the constitution which provides the means for constitutional revision and it excludes the idea that an individual, through the initiative, may place such a measure before the electorate." x x x x Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to constitutional revisions proposed by initiative. (Emphasis supplied) Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the framers and the plain language of the Constitution. We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties arise in determining whether there is an amendment or revision. The present initiative is indisputably located at the far end of the red spectrum where revision begins. The present initiative seeks a radical overhaul of the existing separation of powers among the three co-equal departments of government, requiring far-reaching amendments in several sections and articles of the Constitution. Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years 63 Election Laws Introductory Concepts
to 15 years is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100 48 percent to 60 percent is an amendment and not a revision. Also, a change requiring a college degree as an additional qualification for 49 election to the Presidency is an amendment and not a revision. The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific provision being amended. These changes do not also affect the structure of government or the system of checks-and-balances among or within the three branches. These three examples are located at the far green end of the spectrum, opposite the far red end where the revision sought by the present petition is located. However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word "republican" with "monarchic" or 50 "theocratic" in Section 1, Article II of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution. Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions. In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states: Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; x x x x (Emphasis supplied) The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior law, the later law prevails. This rule also applies to construction of constitutions. However, the Lambino Group's draft of Section 2 of the Transitory Provisions turns on its head this rule of construction by stating that in case of such irreconcilable inconsistency, the earlier provision "shall be amended to conform with a unicameral parliamentary form of government." The effect is to freeze the two irreconcilable provisions until the earlier one "shall be amended," which requires a future separate constitutional amendment. Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily conceded during the oral arguments that the requirement of a future amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the rule of statutory construction so that the later provision automatically prevails in case of irreconcilable inconsistency. However, it is not as simple as that. The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not between a provision in Article VI of the 1987 Constitution and a provision in the proposed changes. The inconsistency is between a provision in Article VI of the 1987 Constitution and the "Parliamentary system of government," and the inconsistency shall be resolved in favor of a "unicameral parliamentary form of government." Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed changes refer to the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are among the few countries with unicameral parliaments? The proposed changes could not possibly refer to the traditional and well-known parliamentary forms of government the British, French, Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have all bicameral parliaments. Did the people who signed the signature sheets realize that they were adopting the Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government? This drives home the point that the people's initiative is not meant for revisions of the Constitution but only for amendments. A shift from the present Bicameral-Presidential to a Unicameral-Parliamentary system requires harmonizing several provisions in many articles of the Constitution. Revision of the Constitution through a people's initiative will only result in gross absurdities in the Constitution. In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2, Article XVII of the Constitution limiting the scope of a people's initiative to "[A]mendments to this Constitution." 3. A Revisit of Santiago v. COMELEC is Not Necessary Election Laws Introductory Concepts
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The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII of the Constitution on the conduct and scope of a people's initiative to amend the Constitution. There is no need to revisit this Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to cover the system of initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively ruled that RA 6735 does not comply with the requirements of the Constitution to implement the initiative clause on amendments to the Constitution. This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the Court can be resolved on some other grounds. Such avoidance is a logical consequence of the well-settled doctrine that courts will not pass upon the constitutionality of 51 a statute if the case can be resolved on some other grounds. Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives to amend the Constitution, this will not change the result here because the present petition violates Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative must first comply with Section 2, Article XVII of the Constitution even before complying with RA 6735. Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories." Section 5(b) of RA 6735 requires that the people must sign the "petition x x x as signatories." The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming to act "together with" the 6.3 million signatories, merely attached the signature sheets to the petition and amended petition. Thus, the petition and amended petition filed with the COMELEC did not even comply with the basic requirement of RA 6735 that the Lambino Group claims as valid. The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition embracing more than one (1) subject shall be submitted to the electorate; x x x." The proposed Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the form of government. Since the present initiative embraces more than one subject matter, RA 6735 prohibits submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the Lambino Group's initiative will still fail. 4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino Group's Initiative In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this Court's ruling in Santiago and 52 People's Initiative for Reform, Modernization and Action (PIRMA) v. COMELEC. For following this Court's ruling, no grave abuse of discretion is attributable to the COMELEC. On this ground alone, the present petition warrants outright dismissal. Thus, this Court should reiterate its unanimous ruling in PIRMA: The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the Decisions of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997. 5. Conclusion The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all the citizens of this nation. No one can trivialize the Constitution by cavalierly amending or revising it in blatant violation of the clearly specified modes of amendment and revision laid down in the Constitution itself. To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be tossed and turned by every dominant political group of the day. If this Court allows today a cavalier change in the Constitution outside the constitutionally prescribed modes, tomorrow the new dominant political group that comes will demand its own set of changes in the same cavalier and unconstitutional fashion. A revolving-door constitution does not augur well for the rule of law in this country. An overwhelming majority 16,622,111 voters comprising 76.3 percent of the total votes cast approved our Constitution in a national plebiscite held on 11 February 1987. That approval is the unmistakable voice of the people, the full expression of the people's sovereign will. That approval included the prescribed modes for amending or revising the Constitution. No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group, can change our Constitution contrary to the specific modes that the people, in their sovereign capacity, prescribed when they ratified the Constitution. The alternative is an extra-constitutional change, which means subverting the people's sovereign will and discarding the Constitution. 65 Election Laws Introductory Concepts
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This is one act the Court cannot and should never do. As the ultimate guardian of the Constitution, this Court is sworn to perform its solemn duty to defend and protect the Constitution, which embodies the real sovereign will of the people. Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise, the Constitution the people's fundamental covenant that provides enduring stability to our society becomes easily susceptible to manipulative changes by political groups gathering signatures through false promises. Then, the Constitution ceases to be the bedrock of the nation's stability. The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that "ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms." The Lambino Group thus admits that their "people's" initiative is an "unqualified support to the agenda" of the incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of "people's voice" or "sovereign will" in the present initiative. This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which embodies the people's sovereign will, is the bible of this Court. This Court exists to defend and protect the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the Constitution. To allow such alteration and desecration is to lose this Court's raison d'etre. WHEREFORE, we DISMISS the petition in G.R. No. 174153. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189868 December 15, 2009
KABATAAN PARTY-LIST REPRESENTATIVE RAYMOND V. PALATINO, ALVIN A. PETERS, PRESIDENT OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP), MA. CRISTINA ANGELA GUEVARRA, CHAIRPERSON OF THE STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP), VENCER MARI E. CRISOSTOMO, SECRETARY GENERAL OF KABATAAN PARTY-LIST, VIJAE O. ALQUISOLA, PRESIDENT OF THE COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP), DIANNE KRISTEL M. ASUELO, SECRETARY GENERAL OF THE KABATAANG ARTISTA PARA SA TUNAY NA KALAYAAN (KARATULA), KENNETH CARLISLE EARL EUGENIO, ANA KATRINA V. TEJERO, VICTOR LOUIS E. CRISOSTOMO, JACQUELINE ALEXIS S. MERCED, and JADE CHARMANE ROSE J. VALENZUELA, Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. DECISION CARPIO MORALES, J.: At the threshold once again is the right of suffrage of the sovereign Filipino people the foundation of Philippine democracy. As the country prepares to elect its next set of leaders on May 10, 2010, the Court upholds this primordial right. On November 12, 2008, respondent Commission on Elections (COMELEC) issued Resolution No. 8514 which, among other things, set December 2, 2008 to December 15, 2009 as the period of continuing voter registration using the biometrics process in all areas 2 nationwide, except in the Autonomous Region of Muslim Mindanao. Subsequently, the COMELEC issued Resolution No. 8585 on February 12, 2009 adjusting the deadline of voter registration for the May 10, 2010 national and local elections to October 31, 2009, instead of December 15, 2009 as previously fixed by Resolution No. 8514. The intense public clamor for an extension of the October 31, 2009 deadline notwithstanding, the COMELEC stood firm in its decision not to extend it, arguing mainly that it needs ample time to prepare for the automated elections. Via the present Petition for Certiorari 3 and Mandamus filed on October 30, 2009, petitioners challenge the validity of COMELEC Resolution No. 8585 and seek a declaration of its nullity. Petitioner Raymond V. Palatino, a youth sectoral representative under the Kabataan Party-list, sues as a member of the House of Representatives and a concerned citizen, while the rest of petitioners sue as concerned citizens. Petitioners contend that the serious questions involved in this case and potential disenfranchisement of millions of Filipino voters justify resort to this Court in the first instance, claiming that based on National Statistics Office (NSO) data, the projected voting population for the May 10, 2010 elections is 3,758,964 for the age group 18-19 and 8,756,981 for the age group 20-24, or a total of 12,515,945. Petitioners further contend that COMELEC Resolution No. 8585 is an unconstitutional encroachment on the legislative power of Congress as it amends the system of continuing voter registration under Section 8 of Republic Act No. 8189 (RA 8189), otherwise known as The Voters Registration Act of 1996, reading: Section 8. System of Continuing Registration of Voters. The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. They thus pray that COMELEC Resolution No. 8585 be declared null and void, and that the COMELEC be accordingly required to extend the voter registration until January 9, 2010 which is the day before the 120-day prohibitive period starting on January 10, 2010. The COMELEC maintains in its Comment filed on December 7, 2009 that, among other things, the Constitution and the Omnibus Election Code confer upon it the power to promulgate rules and regulations in order to ensure free, orderly and honest elections; that 4 5 Section 29 of Republic Act No. 6646 (RA 6646) and Section 28 of Republic Act No. 8436 (RA 8436) authorize it to fix other dates for pre-election acts which include voter registration; and that its schedule of pre-election acts shows that the October 31, 2009 deadline of 67 Election Laws Election Process and/or Proceedings
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voter registration was impelled by operational and pragmatic considerations, citing Akbayan-Youth v. COMELEC wherein the Court denied a similar prayer for an extension of the December 27, 2000 deadline of voter registration for the May 14, 2001 elections. The petition is impressed with merit. The right of suffrage lies at the heart of our constitutional democracy. The right of every Filipino to choose the leaders who will lead the country and participate, to the fullest extent possible, in every national and local election is so zealously guarded by the fundamental law that it devoted an entire article solely therefor: ARTICLE SUFFRAGE V
SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage. SECTION 2. The Congress shall provide a system of securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to prote ct the secrecy of the ballot. Preserving the sanctity of the right of suffrage ensures that the State derives its power from the consent of the governed. The paramount importance of this right is also a function of the State policy of people empowerment articulated in the constitutional 7 declaration that sovereignty resides in the people and all government authority emanates from them, bolstered by the recognition of 8 the vital role of the youth in nation-building and directive to the State to encourage their involvement in public and civic affairs. It is against this backdrop that Congress mandated a system of continuing voter registration in Section 8 of RA 8189 which provides: Section 8. System of Continuing Registration of Voters. The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. (emphasis and underscoring supplied) The clear text of the law thus decrees that voters be allowed to register daily during regular offices hours, except during the period starting 120 days before a regular election and 90 days before a special election. By the above provision, Congress itself has determined that the period of 120 days before a regular election and 90 days before a special election is enough time for the COMELEC to make ALL the necessary preparations with respect to the coming elections including: (1) completion of project precincts, which is necessary for the proper allocation of official ballots, election returns and other election forms and paraphernalia; (2) constitution of the Board of Election Inspectors, including the determination of the precincts to which they shall be assigned; (3) finalizing the Computerized Voters List; (4) supervision of the campaign period; and (5) preparation, bidding, printing and distribution of Voters Information Sheet. Such determination of Congress is well within the ambit of its legislative power, which this Court is bound to respect. And the COMELECs rule-making power should be exercised in accordance with the 9 prevailing law. Respecting the authority of the COMELEC under RA 6646 and RA 8436 to fix other dates for pre-election acts, the same is not in conflict with the mandate of continuing voter registration under RA 8189. This Courts primary duty is to harmonize laws rather than consider one as repealed by the other. The presumption is against inconsistency or repugnance and, accordingly, against implied 10 repeal. For Congress is presumed to know the existing laws on the subject and not to enact inconsistent or conflicting statutes. Both R.A. No. 6646, Section 29 and R.A. No. 8436, Section 28 grant the COMELEC the power to fix other periods and dates for preelection activities only if the same cannot be reasonably held within the period provided by law. This grant of power, however, is for the purpose of enabling the people to exercise the right of suffrage the common underlying policy of RA 8189, RA 6646 and RA 8436. In the present case, the Court finds no ground to hold that the mandate of continuing voter registration cannot be reasonably held within the period provided by RA 8189, Sec. 8 daily during office hours, except during the period starting 120 days before the May 10, 2010 regular elections. There is thus no occasion for the COMELEC to exercise its power to fix other dates or deadlines therefor.
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Election Laws Election Process and/or Proceedings
The present case differs significantly from Akbayan-Youth v. COMELEC. In said case, the Court held that the COMELEC did not commit abuse of discretion in denying the request of the therein petitioners for an extension of the December 27, 2000 deadline of voter registration for the May 14, 2001 elections. For the therein petitioners filed their petition with the Court within the 120-day prohibitive period for the conduct of voter registration under Section 8 of RA 8189, and sought the conduct of a two-day registration on February 17 and 18, 2001, clearly within the 120-day prohibitive period. The Court in fact suggested in Akbayan-Youth that the therein petitioners could have, but had not, registered during the period between the December 27, 2000 deadline set by the COMELEC and before the start of the 120-day prohibitive period prior to the election date or January 13, 2001, thus: [T]here is no allegation in the two consolidated petitions and the records are bereft of any showing that anyone of herein petitioners has filed an application to be registered as a voter which was denied by the COMELEC nor filed a complaint before the respondent COMELEC alleging that he or she proceeded to the Office of the Election Officer to register between the period starting from December 28, 2000 to January 13, 2001, and that he or she was disallowed or barred by respondent COMELEC from filing his application for registration. While it may be true that respondent COMELEC set the registration deadline on December 27, 2000, this Court is of the 12 firm view that petitioners were not totally denied the opportunity to avail of the continuing registration under R.A. 8189. (emphasis and underscoring supplied) The clear import of the Courts pronouncement in Akbayan-Youth is that had the therein petitioners filed their petition and sought an extension date that was before the 120-day prohibitive period, their prayer would have been granted pursuant to the mandate of RA 8189. In the present case, as reflected earlier, both the dates of filing of the petition (October 30, 2009) and the extension sought (until January 9, 2010) are prior to the 120-day prohibitive period. The Court, therefore, finds no legal impediment to the extension prayed for. WHEREFORE, the petition is GRANTED. COMELEC Resolution No. 8585 is declared null and void insofar as it set the deadline of voter registration for the May 10, 2010 elections on October 31, 2009. The COMELEC is directed to proceed with dispatch in reopening the registration of voters and holding the same until January 9, 2010. This Decision is IMMEDIATELY EXECUTORY. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC
G.R. No. 134015 July 19, 1999 JUAN DOMINO, petitioner, vs. COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIO SAMSON and DIONISIO P. LIM, SR., respondent, LUCILLE CHIONGBIAN-SOLON, intervenor.
DAVIDE, JR., CJ.: Challenged in this case for certiorari with a prayer for preliminary injunction are the Resolution of 6 May 1998 of the Second Division of the Commission on Elections (hereafter COMELEC), declaring petitioner Juan Domino (hereafter DOMINO) disqualified as candidate for representative of the Lone Legislative District of the Province of Sarangani in the 11 May 1998 elections, and the Decision of 29 May 2 1998 of the COMELEC en banc denying DOMINO's motion for reconsideration. The antecedents are not disputed.1wphi1.nt On 25 March 1998, DOMINO filed his certificate of candidacy for the position of Representative of the Lone Legislative District of the Province of Sarangani indicating in item nine (9) of his certificate that he had resided in the constituency where he seeks to be elected 3 for one (1) year and two (2) months immediately preceding the election. On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P. Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr., fied with the COMELEC a Petition to Deny Due Course to or Cancel Certificate of Candidacy, which was docketed as SPA No. 98-022 and assigned to the Second Division of the COMELEC. Private respondents alleged that DOMINO, contrary to his declaration in the certificate of candidacy, is not a resident, much less a registered voter, of the province of Sarangani where he seeks election. To substantiate their allegations, private respondents presented the following evidence: 1. Annex "A" the Certificate of Candidacy of respondent for the position of Congressman of the Lone District of the Province of Sarangani filed with the Office of the Provincial Election Supervisor of Sarangani on March 25, 1998, where in item 4 thereof he wrote his date of birth as December 5, 1953; in item 9, he claims he have resided in the constituency where he seeks election for one (1) year and two (2) months; and, in item 10, that he is registered voter of Precinct No. 14A-1, Barangay Poblacion, Alabel, Sarangani; 2. Annex "B" Voter's Registration Record with SN 31326504 dated June 22, 1997 indicating respondent's registration at Precinct No. 4400-A, Old Balara, Quezon City; 3. Annex "C" Respondent's Community Tax Certificate No. 11132214C dated January 15, 1997; 4. Annex "D" Certified true copy of the letter of Herson D. Dema-ala, Deputy Provincial & Municipal Treasurer of Alabel, Sarangani, dated February 26, 1998, addressed to Mr. Conrado G. Butil, which reads: In connection with your letter of even date, we are furnishing you herewith certified xerox copy of the triplicate copy of COMMUNITY TAX CERTIFICATE NO. 11132214C in the name of Juan Domino. Furthermore, Community Tax Certificate No. 11132212C of the same stub was issued to Carlito Engcong on September 5, 1997, while Certificate No. 11132213C was also issued to Mr. Juan Domino but was cancelled and serial no. 11132215C was issued in the name of Marianita Letigio on September 8, 1997. 70 Election Laws Election Process and/or Proceedings
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5. Annex "E" The triplicate copy of the Community Tax Certificate No. 11132214C in the name of Juan Domino dated September 5, 1997; 6. Annex "F" Copy of the letter of Provincial Treasurer Lourdes P. Riego dated March 2, 1998 addressed to Mr. Herson D. Dema-ala, Deputy Provincial Treasurer and Municipal Treasurer of Alabel, Sarangani, which states: For easy reference, kindly turn-over to the undersigned for safekeeping, the stub of Community Tax Certificate containing Nos. 11132201C-11132250C issued to you on June 13, 1997 and paid under Official Receipt No. 7854744. Upon request of Congressman James L. Chiongbian. 7. Annex "G" Certificate of Candidacy of respondent for the position of Congressman in the 3rd District of Quezon City for the 1995 elections filed with the Office of the Regional Election Director, National Capital Region, on March 17, 1995, where, in item 4 thereof, he wrote his birth date as December 22, 1953; in item 8 thereof his "residence in the constituency where I seek to be elected immediately preceding the election" as 3 years and 5 months; and, in item 9, that he is a registered voter of Precinct No. 182, Barangay Balara, Quezon City; 8. Annex "H" a copy of the APPLICATION FOR TRANSFER OF REGISTRATION RECORDS DUE TO CHANGE OF RESIDENCE of respondent dated August 30, 1997 addressed to and received by Election Officer Mantil Alim, Alabel, Sarangani, on September 22, 1997, stating among others, that "[T]he undersigned's previous residence is at 24 Bonifacio Street, Ayala Heights, Quezon City, III District, Quezon City; wherein he is a registered voter" and "that for business and residence purposes, the undersigned has transferred and conducts his business and reside at Barangay Poblacion, Alabel, Province of Sarangani prior to this application;" 9. Annex "I" Copy of the SWORN APPLICATION FOR OF CANCELLATION OF THE VOTER'S [TRANSFER OF] PREVIOUS REGISTRATION of respondent subscribed and sworn to on 22 4 October 1997 before Election Officer Mantil Allim at Alabel, Sarangani. For his defense, DOMINO maintains that he had complied with the one-year residence requirement and that he has been residing in Sarangani since January 1997. In support of the said contention, DOMINO presented before the COMELEC the following exhibits, to wit: 1. Annex "1" Copy of the Contract of Lease between Nora Dacaldacal as Lessor and Administrator of the properties of deceased spouses Maximo and Remedios Dacaldacal and respondent as Lessee executed on January 15, 1997, subscribed and sworn to before Notary Public Johnny P. Landero; 2. Annex "2" Copy of the Extra-Judicial Settlement of Estate with Absolute Deed of sale executed by and between the heirs of deceased spouses Maximo and Remedios Dacaldacal, namely: Maria Lourdes, Jupiter and Beberlie and the respondent on November 4, 1997, subscribed and sworn to before Notary Public Jose A. Alegario; 3. Annex "3" True Carbon Xerox copy of the Decision dated January 19, 1998, of the Metropolitan Trial Court of Metro Manila, Branch 35, Quezon City, in Election Case NO. 725 captioned as "In the Matter of the Petition for the Exclusion from the List of voters of Precinct No. 4400-A Brgy. Old Balara, Quezon City, Spouses Juan and Zorayda Domino, Petitioners, -versusElmer M. Kayanan, Election Officer, Quezon City, District III, and the Board of Election Inspectors of Precinct No. 4400-A, Old Balara, Quezon City, Respondents." The dispositive portion of which reads: 1. Declaring the registration of petitioners as voters of Precinct No. 4400-A, Barangay Old Balara, in District III Quezon City as completely erroneous as petitioners were no longer residents of Quezon City but of Alabel, Sarangani where they have been residing since December 1996; 2. Declaring this erroneous registration of petitioners in Quezon City as done in good faith due to an honest mistake caused by circumstances beyond their control and without any fault of petitioners; 71 Election Laws Election Process and/or Proceedings
3. Approving the transfer of registration of voters of petitioners from Precint No. 4400-A of Barangay Old Balara, Quezon City to Precinct No. 14A1 of Barangay Poblacion of Alabel, Sarangani; and 4. Ordering the respondents to immediately transfer and forward all the election/voter's registration records of the petitioners in Quezon City to the Election Officer, the Election Registration Board and other Comelec Offices of Alabel, Sarangani where the petitioners are obviously qualified to excercise their respective rights of suffrage. 4. Annex "4" Copy of the Application for Transfer of Registration Records due to Change of Residence addressed to Mantil Alim, COMELEC Registrar, Alabel, Sarangani, dated August 30, 1997. 5. Annex "5" Certified True Copy of the Notice of Approval of Application, the roster of applications for registration approved by the Election Registration Board on October 20, 1997, showing the spouses Juan and Zorayda Bailon Domino listed as numbers 111 and 112 both under Precinct No. 14A1, the last two names in the slate indicated as transferees without VRR numbers and their application dated August 30, 1997 and September 30, 1997, respectively. 6. Annex "6" same as Annex "5" 7. Annex "6-a" Copy of the Sworn Application for Cancellation of Voter's Previous Registration (Annex "I", Petition); 8. Annex "7" Copy of claim card in the name of respondent showing his VRR No. 31326504 dated October 20, 1997 as a registered voter of Precinct No. 14A1, Barangay Poblacion, Alabel, Sarangani; 9. Annex "7-a" Certification dated April 16, 1998, issued by Atty. Elmer M. Kayanan, Election Officer IV, District III, Quezon City, which reads: This is to certify that the spouses JUAN and ZORAYDA DOMINO are no longer registered voters of District III, Quezon City. Their registration records (VRR) were transferred and are now in the possession of the Election Officer of Alabel, Sarangani. This certification is being issued upon the request of Mr. JUAN DOMINO. 10. Annex "8" Affidavit of Nora Dacaldacal and Maria Lourdes Dacaldacal stating the circumstances and incidents detailing their alleged acquaintance with respondent. 11. Annexes "8-a", "8-b", "8-c" and "8-d" Copies of the uniform affidavits of witness Myrna Dalaguit, Hilario Fuentes, Coraminda Lomibao and Elena V. Piodos subscribed and sworn to before Notary Public Bonifacio F. Doria, Jr., on April 18, 1998, embodying their alleged personal knowledge of respondent's residency in Alabel, Sarangani; 12. Annex "8-e" A certification dated April 20, 1998, subscribed and sworn to before Notary Public Bonifacio, containing a listing of the names of fifty-five (55) residents of Alabel, Sarangani, declaring and certifying under oath that they personally know the respondent as a permanent resident of Alabel, Sarangani since January 1997 up to present; 13. Annexes "9", "9-a" and "9-b" Copies of Individual Income Tax Return for the year 1997, BIR form 2316 and W-2, respectively, of respondent; and, 14. Annex "10" The affidavit of respondent reciting the chronology of events and circumstances leading to his relocation to the Municipality of Alabel, Sarangani, appending Annexes "A", "B", "C", "D", "D-1", "E", "F", "G" with sub-markings "G-1" and "G-2" and "H" his CTC No. 111`32214C dated September 5, 1997, which are the same as Annexes "1", "2", "4", "5", "6-a", "3", "7", "9" with sub5 markings "9-a" and "9-b" except Annex "H".
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On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO disqualified as candidate for the position of representative of the lone district of Sarangani for lack of the one-year residence requirement and likewise ordered the cancellation of his certificate of candidacy, on the basis of the following findings: What militates against respondent's claim that he has met the residency requirement for the position sought is his own Voter's Registration Record No. 31326504 dated June 22, 1997 [Annex "B", Petition] and his address indicated as 24 Bonifacio St., Ayala Heights, Old Balara, Quezon City. This evidence, standing alone, negates all his protestations that he established residence at Barangay Poblacion, Alabel, Sarangani, as early as January 1997. It is highly improbable, nay incredible, for respondent who previously ran for the same position in the 3rd Legislative District of Quezon City during the elections of 1995 to unwittingly forget the residency requirement for the office sought. Counting, therefore, from the day after June 22, 1997 when respondent registered at Precinct No. 4400-A, up to and until the day of the elections on May 11, 1998, respondent clearly lacks the one (1) year residency requirement provided for candidates for Member of the House of Representatives under Section 6, Article VI of the Constitution. All told, petitioner's evidence conspire to attest to respondent's lack of residence in the constituency where he seeks election and while it may be conceded that he is a registered voter as contemplated under Section 12 of R.A. 8189, 6 he lacks the qualification to run for the position of Congressman for the Lone District of the Province of Sarangani. On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus Resolution No. 3046, ordering that the votes cast for DOMINO be counted but to suspend the proclamation if winning, considering that the Resolution disqualifying him as candidate 7 had not yet become final and executory. The result of the election, per Statement of Votes certified by the Chairman of the Provincial Board of Canvassers, shows that DOMINO garnered the highest number of votes over his opponents for the position of Congressman of the Province of Sarangani. On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May 1998, which was denied by the COMELEC en banc in its decision dated 29 May 1998. Hence, the present Petition for Certiorari with prayer for Preliminary Mandatory Injunction alleging, in the main, that the COMELEC committed grave abuse of discretion amounting to excess or lack of jurisdiction when it ruled that he did not meet the one-year residence requirement. On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary Restraining Order, the Court directed the parties to maintain 9 the status quo prevailing at the time of the filing of the instant petition. On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the candidate receiving the second highest number of 10 votes, was allowed by the Court to Intervene. INTERVENOR in her Motion for Leave to Intervene and in her Comment in Intervention 11 is asking the Court to uphold the disqualification of petitioner Juan Domino and to proclaim her as the duly elected representative of Sarangani in the 11 May 1998 elections. Before us DOMINO raised the following issues for resolution, to wit: a. Whether or not the judgment of the Metropolitan Trial Court of Quezon City declaring petitioner as resident of Sarangani and not of Quezon City is final, conclusive and binding upon the whole world, including the Commission on Elections. b. Whether or not petitioner herein has resided in the subject congressional district for at least one (1) year immediately preceding the May 11, 1998 elections; and c. Whether or not respondent COMELEC has jurisdiction over the petition a quo for the 12 disqualification of petitioner. The first issue. The contention of DOMINO that the decision of the Metropolitan Trial Court of Quezon City in the exclusion proceedings declaring him a resident of the Province of Sarangani and not of Quezon City is final and conclusive upon the COMELEC cannot be sustained. The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election Code, over a petition to deny due course to or cancel certificate of candidacy. In the exercise of the said jurisdiction, it is within the competence of the COMELEC to determine whether false representation as to material facts was made in the certificate of candidacy, that will include, among others, the residence of the candidate. 73 Election Laws Election Process and/or Proceedings
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The determination of the Metropolitan Trial Court of Quezon City in the exclusion proceedings as to the right of DOMINO to be included or excluded from the list of voters in the precinct within its territorial jurisdicton, does not preclude the COMELEC, in the determination of DOMINO's qualification as a candidate, to pass upon the issue of compliance with the residency requirement. The proceedings for the exclusion or inclusion of voters in the list of voters are summary in character. Thus, the factual findings of the trial court and its resultant conclusions in the exclusion proceedings on matters other than the right to vote in the precinct within its territorial jurisdiction are not conclusive upon the COMELEC. Although the court in inclusion or exclusion proceedings may pass upon any question necessary to decide the issue raised including the questions of citizenship and residence of the challenged voter, the authority to order the inclusion in or exclusion from the list of voters necessarily caries with it the power to inquire into and settle all matters essential to the exercise of said authority. However, except for the right to remain in the list of voters or for being excluded therefrom for the particular election in relation to which the proceedings had been held, a decision in an exclusion or inclusion 13 proceeding, even if final and unappealable, does not acquire the nature of res judicata. In this sense, it does not operate as a bar to 14 any future action that a party may take concerning the subject passed upon in the proceeding. Thus, a decision in an exclusion proceeding would neither be conclusive on the voter's political status, nor bar subsequent proceedings on his right to be registered as a 15 voter in any other election. Thus, in Tan Cohon v. Election Registrar
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we ruled that:
. . . It is made clear that even as it is here held that the order of the City Court in question has become final, the same does not constitute res adjudicata as to any of the matters therein contained. It is ridiculous to suppose that such an important and intricate matter of citizenship may be passed upon and determined with finality in such a summary and peremptory proceeding as that of inclusion and exclusion of persons in the registry list of voters. Even if the City Court had granted appellant's petition for inclusion in the permanent list of voters on the allegation that she is a Filipino citizen qualified to vote, her alleged Filipino citizenship would still have been left open to question. Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision exceeded its jurisdiction when it declared DOMINO a resident of the Province of Sarangani, approved and ordered the transfer of his voter's registration from Precinct No. 4400-A of Barangay Old Balara, Quezon City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani. It is not within the competence of the trial court, in an exclusion proceedings, to declare the challenged voter a resident of another municipality. The jurisdiction of the lower court over exclusion cases is limited only to determining the right of voter to remain in the list of voters or to declare that the challenged voter is not qualified to vote in the precint in which he is registered, specifying the ground of the voter's disqualification. The trial court has no power to order the change or transfer of registration from one place of residence to another for it is the function of the election 17 Registration Board as provided under Section 12 of R.A. No. 8189. The only effect of the decision of the lower court excluding the challenged voter from the list of voters, is for the Election Registration Board, upon receipt of the final decision, to remove the voter's registration record from the corresponding book of voters, enter the order of exclusion therein, and thereafter place the record in the 18 inactive file. Finally, the application of the rule on res judicata is unavailing. Identity of parties, subject matter and cause of action are indispensable requirements for the application of said doctrine. Neither herein Private Respondents nor INTERVENOR, is a party in the exclusion proceedings. The Petition for Exclusion was filed by DOMINDO himself and his wife, praying that he and his wife be excluded from the Voter's List on the ground of erroneous registration while the Petition to Deny Due Course to or Cancel Certificate of Candidacy was filed by private respondents against DOMINO for alleged false representation in his certificate of candidacy. For the decision to be a basis for the dismissal by reason of res judicata, it is essential that there must be between the first and the second action identity of 19 parties, identity of subject matter and identity of causes of action. In the present case, the aforesaid essential requisites are not 20 present. In the case of Nuval v. Guray, et al., the Supreme Court in resolving a similar issue ruled that: The question to be solved under the first assignment of error is whether or not the judgment rendered in the case of the petition for the exclusion of Norberto Guray's name from the election list of Luna, is res judicata, so as to prevent the institution and prosecution of an action in quo warranto, which is now before us. The procedure prescribed by section 437 of the Administrative Code, as amended by Act No. 3387, is of a summary character and the judgment rendered therein is not appealable except when the petition is tried before the justice of the peace of the capital or the circuit judge, in which case it may be appealed to the judge of first instance, with whom said two lower judges have concurrent jurisdiction. The petition for exclusion was presented by Gregorio Nuval in his dual capacity as qualified voter of the municipality of Luna, and as a duly registered candidate for the office of president of said municipality, against Norberto Guray as a registered voter in the election list of said municipality. The present proceeding of quo warranto was interposed by Gregorio Nuval in his capacity as a registered candidate voted for the office of municipal president of Luna, against Norberto Guray, as an elected candidate for the same office. Therefore, there is no identity of parties in the two cases, since it is not enough that there be an identity of persons, but there must be an identity of capacities in which said persons litigate. (Art. 1259 of the Civil Code; Bowler vs. Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165) 74 Election Laws Election Process and/or Proceedings
In said case of the petition for the exclusion, the object of the litigation, or the litigious matter was the exclusion of Norberto Guray as a voter from the election list of the municipality of Luna, while in the present que warranto proceeding, the object of the litigation, or the litigious matter is his exclusion or expulsion from the office to which he has been elected. Neither does there exist, then, any identity in the object of the litigation, or the litigious matter. In said case of the petition for exclusion, the cause of action was that Norberto Guray had not the six months' legal residence in the municipality of Luna to be a qualified voter thereof, while in the present proceeding of quo warranto, the cause of action is that Norberto Guray has not the one year's legal residence required for eligibility to the office of municipal president of Luna. Neither does there exist therefore, identity of causes of action. In order that res judicata may exist the following are necessary: (a) identity of parties; (b) identity of things; and (c) identity of issues (Aquino v. Director of Lands, 39 Phil. 850). And as in the case of the petition for excluision and in the present quo warranto proceeding, as there is no identity of parties, or of things or litigious matter, or of issues or causes of action, there is no res judicata. The Second Issue. Was DOMINO a resident of the Province of Sarangani for at least one year immediately preceding the 11 May 1998 election as stated in his certificate of candidacy? We hold in the negative. It is doctrinally settled that the term "residence," as used in the law prescribing the qualifications for suffrage and for elective office, means the same thing as "domicile," which imports not only an intention to reside in a fixed place but also personal presence in that 21 place, coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent residence to which, whenever absent 22 for business, pleasure, or some other reasons, one intends to return. "Domicile" is a question of intention and circumstances. In the consideration of circumstances, three rules must be borne in mind, namely: (1) that a man must have a residence or domicile somewhere; (2) when once established it remains until a new one is acquired; and (3) a man can have but one residence or domicile at 23 a time. Records show that petitioner's domicile of origin was Candon, Ilocos 24 Sur and that sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as shown by his certificate of candidacy for the position of representative of the 3rd District of Quezon City in the May 1995 election. Petitioner is now claiming that he had effectively abandoned his "residence" in Quezon City and has established a new "domicile" of choice at the Province of Sarangani. A person's "domicile" once established is considered to continue and will not be deemed lost until a new one is established. To successfully effect a change of domicile one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the 26 purpose. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the 27 place chosen for the new domicile must be actual. It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since December 1996 was sufficiently established by the lease of a house and lot located therein in January 1997 and by the affidavits and certifications under oath of the residents of that place that they have seen petitioner and his family residing in their locality. While this may be so, actual and physical is not in itself sufficient to show that from said date he had transferred his residence in that place. To establish a new domicile of choice, personal presence in the place must be coupled with conduct indicative of that intention. While "residence" simply requires bodily presence in a given place, "domicile" requires not only such bodily presence in that place but 28 also a declared and probable intent to make it one's fixed and permanent place of abode, one's home. As a general rule, the principal elements of domicile, physical presence in the locality involved and intention to adopt it as a domicile, must concur in order to establish a new domicile. No change of domicile will result if either of these elements is absent. Intention to acquire a domicile without actual residence in the locality does not result in acquisition of domicile, nor does the fact of physical 29 presence without intention. The lease contract entered into sometime in January 1997, does not adequately support a change of domicile. The lease contract may be indicative of DOMINO's intention to reside in Sarangani but it does not engender the kind of permanency required to prove abandonment of one's original domicile. The mere absence of individual from his permanent residence, no matter how long, without the intention to abandon it does not result in loss or change of Election Laws Election Process and/or Proceedings
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domicile. Thus the date of the contract of lease of a house and lot located in the province of Sarangani, i.e., 15 January 1997, cannot be used, in the absence of other circumstances, as the reckoning period of the one-year residence requirement. Further, Domino's lack of intention to abandon his residence in Quezon City is further strengthened by his act of registering as voter in one of the precincts in Quezon City. While voting is not conclusive of residence, it does give rise to a strong presumption of residence especially in this case where DOMINO registered in his former barangay. Exercising the right of election franchise is a deliberate public assertion of the fact of residence, and is said to have decided preponderance in a doubtful case upon the place the elector claims as, or 31 believes to be, his residence. The fact that a party continously voted in a particular locality is a strong factor in assisting to determine 32 the status of his domicile. His claim that his registration in Quezon City was erroneous and was caused by events over which he had no control cannot be sustained. The general registration of voters for purposes of the May 1998 elections was scheduled for two (2) consecutive weekends, 33 viz.: June 14, 15, 21, and 22. While, Domino's intention to establish residence in Sarangani can be gleaned from the fact that be bought the house he was renting on 34 November 4, 1997, that he sought cancellation of his previous registration in Qezon City on 22 October 1997, and that he applied for 35 transfer of registration from Quezon City to Sarangani by reason of change of residence on 30 August 1997, DOMINO still falls short of the one year residency requirement under the Constitution. In showing compliance with the residency requirement, both intent and actual presence in the district one intends to represent must 36 satisfy the length of time prescribed by the fundamental law. Domino's failure to do so rendered him ineligible and his election to 37 office null and void. The Third Issue. DOMINO's contention that the COMELEC has no jurisdiction in the present petition is bereft of merit. As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus Election Code, has jurisdiction over a petition to deny due course to or cancel certificate of candidacy. Such jurisdiction continues even after election, if for any reason no final judgment of disqualification is rendered before the election, and the candidate facing disqualification is voted for and receives the highest number of 38 39 votes and provided further that the winning candidate has not been proclaimed or has taken his oath of office. It has been repeatedly held in a number of cases, that the House of Representatives Electoral Tribunal's sole and exclusive jurisdiction over all contests relating to the election, returns and qualifications of members of Congress as provided under Section 17 of Article VI of 40 the Constitution begins only after a candidate has become a member of the House of Representatives. The fact of obtaining the highest number of votes in an election does not automatically vest the position in the winning candidate. A candidate must be proclaimed and must have taken his oath of office before he can be considered a member of the House of Representatives. In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone Congressional District of the Province of Sarangani by reason of a Supplemental Omnibus Resolution issued by the COMELEC on the day of the election ordering the suspension of DOMINO's proclamation should he obtain the winning number of votes. This resolution was issued by the COMELEC in view of the non-finality of its 6 May 1998 resolution disqualifying DOMINO as candidate for the position. Cosidering that DOMINO has not been proclaimed as Congressman-elect in the Lone Congressional District of the Province of Sarangani he cannot be deemed a member of the House of Representatives. Hence, it is the COMELEC and not the Electoral Tribunal 42 which has jurisdiction over the issue of his ineligibility as a candidate. Issue raised by INTERVENOR. After finding that DOMINO is disqualified as candidate for the position of representative of the province of Sarangani, may INTERVENOR, as the candidate who received the next highest number of votes, be proclaimed as the winning candidate? It is now settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the 43 winning candidate is disqualified. In every election, the people's choice is the paramount consideration and their expressed will must, at all times, be given effect. When the majority speaks and elects into office a candidate by giving the highest number of votes cast in 44 the election for that office, no one can be declared elected in his place. It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of 76 Election Laws Election Process and/or Proceedings
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which have positively declared through their ballots that they do not choose him. To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voters. He could not be considered the first among qualified candidates because in a field which excludes the qualified candidate, the conditions would have substantially changed.
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45
Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is fundamental idea in all republican forms of government that no one can be declared elected and no measure can 47 be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, that the wreath of victory 48 cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration 49 of election in favor of the person who has obtained a plurality of votes and does not entitle the candidate receiving the next highest 50 number of votes to be declared elected. In such case, the electors have failed to make a choice and the election is a nullity. To allow the defeated and repudiated candidate to take over the elective position despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people's right to elect 51 officials of their choice. INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes cannot be sustained. INTERVENOR's reliance 52 on the opinion made in the Labo, Jr. case to wit: if the electorate, fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nevertheless cast their votes in favor of the ineligible candidate, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected, is misplaced. Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an ineligible candidate. Although the resolution declaring him ineligible as candidate was rendered before the election, however, the same is not yet final and executory. In fact, it was no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed DOMINO to be voted for the office and ordered that the votes cast for him be counted as the Resolution declaring him ineligible has not yet attained finality. Thus the votes cast for DOMINO are presumed to have been cast in the sincere belief that he was a qualified candidate, without any intention to 53 misapply their franchise. Thus, said votes can not be treated as stray, void, or meaningless. WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of the COMELEC 2nd Division and the decision dated 29 May 1998 of the COMELEC En Banc, are hereby AFFIRMED.1wphi1.nt SO ORDERED.
77
Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 150477 February 28, 2005
LAZARO C. GAYO, petitioner, vs. VIOLETA G. VERCELES, respondent. DECISION CALLEJO, SR., J.: Before us is a petition for review on certiorari of the Decision of the Regional Trial Court (RTC), Agoo, La Union, Branch 32, in EPC A07, dismissing a petition for quo warranto filed by petitioner Lazaro C. Gayo to declare as null and void the proclamation of respondent Violeta G. Verceles as Mayor of the Municipality of Tubao, La Union, during the May 14, 2001 elections. This case proceeded from the following antecedents: Sometime in 1977, the respondent migrated to the United States of America (U.S.A.) with her family to look for greener pastures. 2 Although her husband was granted American citizenship, she retained her citizenship as a Filipino. In 1993, she returned to the 3 Philippines for good. The following year, she was appointed as Treasurer of the B.P. Verceles Foundation and regularly attended the 4 meetings of its Board of Directors. 1awphi1.nt In 1995, the respondent registered herself as a voter of Precinct No. 16 in Tubao, La Union. As certified by the Assistant Revenue District Officer, Revenue District No. 3 of the Bureau of Internal Revenue (BIR) in San Fernando City, the respondent also filed her 6 income tax returns for the taxable years 1996 and 1997. Between the years 1993 to 1997, the respondent would travel to the U.S.A. to 7 visit her children. The respondent abandoned her status as lawful permanent resident of the U.S.A. effective November 5, 1997 for the purpose of filing her candidacy for Mayor of Tubao, La Union in the May 11, 1998 elections. On January 28, 1998, she surrendered her alien registration 8 receipt card before the Immigration and Naturalization Service of the American Embassy in Manila. The respondent ran in the May 11, 1998 elections and was elected Mayor of Tubao, La Union. Thereafter, during the May 14, 2001 elections, the petitioner ran for re-election and won. She was proclaimed as the duly-elected Mayor 9 on May 16, 2001. On May 26, 2001, the petitioner, also a candidate for Mayor during the May 2001 elections, filed a petition for quo warranto with the RTC of Agoo, La Union. He prayed that (a) the respondent be declared disqualified to hold the position of Mayor of Tubao, La Union; (b) the respondents proclamation as winner be declared null and void; and (c) the petitioner be proclaimed as the duly-elected mayor. In her Answer, the respondent argued that she had clearly and unequivocally shown, through direct and positive acts, that she already renounced and waived her right to permanently reside in the U.S.A. even before she surrendered her "green card" in 1998. As a counterclaim, she prayed for the payment of attorneys fees and litigation expenses, moral damages, and exemplary damages. On October 12, 2001, the RTC rendered a Decision qualified to occupy the position as Municipal Mayor.
10 5 1
dismissing the petition for quo warranto. The RTC ruled that the respondent was
The RTC held that the respondents act of registration as a voter, or of filing an income tax return, does not constitute an abandonment 11 or waiver of her status as a permanent resident of the U.S.A. Nonetheless, it declared that the respondent was no longer such permanent resident during the May 2001 elections because she had already waived her green card even prior to the filing of her 12 certificate of candidacy when she first ran for mayor in the 1998 elections. The RTC held that the waiver of the status as a permanent 13 14 resident under Sec. 68(e) of the Omnibus Election Code is still effective. It ruled that Sec. 40(f) of the Local Government Code (LGC) of 1991 did not repeal Sec. 68(e). For one, there is nothing in the repealing clause of the LGC that indicates an intention to 15 repeal or modify the Omnibus Election Code. Moreover, the two provisions are not inconsistent with each other. In fact, Section 68(e) of the Omnibus Election Code complements Section 40(f) of the LGC, in the sense that the former may supply the condition when 16 permanent residents may be qualified to run for public office. 78 Election Laws Election Process and/or Proceedings
Dissatisfied, the petitioner filed this petition for review based on the following ground: THE TRIAL COURT HAS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS AND CONTRAVENED APPLICABLE LAW AND JURISPRUDENCE IN DISMISSING THE PETITION DESPITE PRESENCE OF LEGAL 17 GROUND FOR ITS GRANT. The fundamental issue in this case is whether or not the respondent was able to meet the residency requirement for the position of municipal mayor during the May 2001 elections. Before ruling on the substantive issues of the case, we note that the petitioner filed a petition for review on certiorari with this Court under Rule 45 of the Rules of Court. While a petition for review on certiorari under Rule 45 may be filed with this Court to assail the decision of the RTC on questions of law, the rule is that the Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts, or where exceptional and compelling circumstances justify availment of a remedy within and 18 calling for the exercise of our primary jurisdiction. The Court notes that the petitioner has not relied on any such exceptional circumstances. The remedy of the petitioner was to appeal the decision to the Court of Appeals (CA) via a writ of error under Rule 41 of the Revised Rules of Civil Procedure. Section 2(a) of Rule 41 provides for the appeal to the CA of cases decided by the RTC in the exercise of its original jurisdiction. The petition for quo warranto in this case was filed with and decided by the RTC in its original jurisdiction; hence, the remedy of the petitioner was to appeal by writ of error to the CA. We also note that the contested term of office, which commenced on June 30, 2001, lasted only until June 30, 2004. This petition, thus, 19 has become moot and academic insofar as it concerns the petitioners right to the mayoralty seat in his municipality. For this reason, we resolve to accept the appeal and consider the case on the merits. Further, as we have previously ruled, Courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review and if it will aid in fostering free, orderly, and 20 peaceful elections. The issue in this case involves one of the essential qualifications for running for public office, that is, the one-year residency requirement prescribed under Section 39 of the LGC, thus: SECTION 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any local language or dialect. In interpreting this requirement, our ruling in Papandayan, Jr. v. Commission on Elections
21
is instructive, thus:
The term "residence," as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent residence to which when absent for 22 business or pleasure, or for like reasons, one intends to return. More recently in Coquilla v. Commission on Elections,
23
we further clarified the meaning of the term, and held as follows:
The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or "habitation," but rather to "domicile" or legal residence, that is, "the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi). A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents reside and continues (sic) until the same is abandoned by acquisition of 24 new domicile (domicile of choice). In Caasi v. Court of Appeals, we held that a Filipino citizens immigration to a foreign country constitutes an abandonment of his domicile and residence in the Philippines. In other words, the acquisition of a permanent residency status in a foreign country 26 constitutes a renunciation of the status as a resident of the Philippines. On the other hand, the Court explained in another case that a new domicile is reacquired if the following conditions concur: (1) [R]residence or bodily presence in the new locality; (2) an intention to remain there; and (3) an intention to abandon the old domicile. There must be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new 27 domicile must be actual.
25
79
Applying case law to the present case, it can be said that the respondent effectively abandoned her residency in the Philippines by her acquisition of the status of a permanent U.S. resident. Nonetheless, we find that the respondent reacquired her residency in the Philippines even before the holding of the May 2001 elections.l^vvphi1.net The records show that she surrendered her green card to the Immigration and Naturalization Service of the American Embassy way back in 1998. By such act, her intention to abandon her U.S. residency could not have been made clearer. Moreover, when she decided to relocate to the Philippines for good in 1993, she continued living here and only went to the U.S.A. on periodic visits to her children who were residing there. Moreover, she was elected Mayor in the 1998 elections and served as such for the duration of her term. We find such acts sufficient to establish that the respondent intended to stay in the Philippines indefinitely and, ultimately, that she has once again made the Philippines her permanent 28 residence. As we ruled in Perez v. Commission on Elections: When the evidence on the alleged lack of residence qualification is weak or inconclusive and it clearly appears, as in the instant case, that the purpose of the law would not be thwarted by upholding the right to the office, the will of the electorate should be respected. In this case, considering the purpose of the residency requirement, i.e., to ensure that the person elected is familiar with the needs and problems of his constituency, there can be no doubt that private respondent is qualified, having been governor of the entire province of 29 Cagayan for ten years immediately before his election as Representative of that provinces Third District. The petitioner posits that, under existing law, the waiver of the status as a permanent resident of a foreign country is no longer allowed to cure the disqualification, in case of permanent residents abroad. He argues that the prevailing law is the LGC of 1991 which impliedly repealed Sec. 68 of the Omnibus Election Code for being inconsistent. He asserts that the inconsistency lies in the fact that Section 40(f) of the LGC does not provide for the waiver of the status as permanent residents in a foreign country which, on the other hand, is provided under Section 68 of the Omnibus Election Code. He contends that under Section 40(f) of the LGC, permanent residents or those who have acquired the right to reside abroad and continue to avail of the same right even after the effectivity of the law on January 1, 1992, are disqualified from running for any local elective position. Hence, the petitioner argues, since the respondent continued to avail of the right to reside permanently in the U.S.A. until 1997, the respondent was disqualified from running for mayor during the May 2001 elections. The respondent counters that the petitioners interpretation of Sec. 40(f) of the LGC of 1991 is patently illogical, absurd, and myopic, if not totally outrageous. Such interpretation would, in effect, forever ban Filipinos from running for local elective positions, that is, those 30 who are permanent residents abroad and who have failed to abandon their status as such after the effectivity of the LGC. The respondent avers that the provision simply means that after the effectivity of the LGC, permanent residents in a foreign country or those who have acquired the right to reside there and continue to avail of the said right are disqualified from running for any ele ctive local position. She argues therefore that she is no longer disqualified because, at the time she ran for office, she already ceased to avail of 31 her right as a permanent U.S. resident or immigrant. We agree with the respondent. Section 68 of the Omnibus Election Code was not repealed by the LGC of 1991. The repealing clause of 32 the LGC, Section 534, does not specifically mention a repeal of any provision of the Omnibus Election Code. The legislature is presumed to know the existing laws, such that whenever it intends to repeal a particular or specific provision of law, it does so expressly. The failure to add a specific repealing clause particularly mentioning the statute to be repealed indicates that the intent was not to repeal any existing law on the matter, unless an irreconcilable inconsistency and repugnancy exists in the terms of the new and 33 the old laws. In this case, we discern no irreconcilable inconsistency between Section 68 of the Omnibus Election Code and Section 40(f) of the LGC. Section 68 of the Omnibus Election Code provides in part: Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as a permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. On the other hand, Sec. 40(f) of the LGC provides that "permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code" are disqualified from running for any elective local position. The two provisions are basically the same in that they both provide that permanent residents or immigrants to a foreign country are disqualified from running for any local elective position. The difference lies only in the fact that Section 68 of the Omnibus Election Code specifically provides for an exception to the disqualification. This does not make the two provisions inconsistent with each other.1awphi1.nt Moreover, the two provisions are in pari materia they relate to the same subject matter. Statutes in pari materia, although in apparent 34 conflict, are so far as reasonably possible construed to be in harmony with each other. Thus, the RTC correctly made the following observations: The deletion is based on the premise that once a person waives or abandons his status as a permanent resident or immigrant of a foreign country he has, therefore, ceased to be such from the time of the waiver or abandonment. The phrase as used in Section 68 of 80 Election Laws Election Process and/or Proceedings
the Omnibus Election Code is a catchphrase or a conditional clause on how a permanent resident or immigrant of a foreign country could fall outside the coverage of the prohibition. The legislature found the inclusion of the phrase unnecessary or, with no offense meant to the framers of Batas Pambansa [Blg.] 881, a surplusage, so to speak. Hence, the deletion. So that, the absence of that conditional clause in Section 40(f) of the Local Government Code may be supplied by Section 68(e) of the Omnibus Election Code as both provisions relate to the same subject matter and purpose; hence, in pari materia. And, when statutes are in pari materia, they are to be "construed together; each legislative intent is to be interpreted with reference to other acts relating to 35 the same matter or subject." (Black, Construction and Interpretation of Laws, 2nd ed., p. 331) Finally, the respondent avers that in the event of her disqualification from holding office, the petitioner cannot assume the mayoralty post because he did not obtain a plurality of votes for the position. The rule is well settled. The ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. As we held in 36 Reyes v. Commission on Elections: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, 37 the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances. WHEREFORE, premises considered, the petition is hereby DENIED. The Decision of the Regional Trial Court of Agoo, La Union, Branch 32, in EPC No. A-07 is AFFIRMED. SO ORDERED.
81
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 161434 March 3, 2004
MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs. The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.) and VICTORINO X. FORNIER, respondents. x-----------------------------x G.R. No. 161634 March 3, 2004
ZOILO ANTONIO VELEZ, petitioner, vs. RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent. x-----------------------------x G. R. No. 161824 March 3, 2004
VICTORINO X. FORNIER, petitioner, vs. HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN AS FERNANDO POE JR., respondents. DECISION VITUG, J.: Citizenship is a treasured right conferred on those whom the state believes are deserving of the privilege. It is a "precious 1 heritage, as well as an inestimable acquisition," that cannot be taken lightly by anyone - either by those who enjoy it or by those who dispute it. Before the Court are three consolidated cases, all of which raise a single question of profound importance to the nation. The issue of citizenship is brought up to challenge the qualifications of a presidential candidate to hold the highest office of the land. Our people are waiting for the judgment of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the main contenders for the presidency, a natural-born Filipino or is he not? The moment of introspection takes us face to face with Spanish and American colonial roots and reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a hybrid of laws and jurisprudence that could be no less than distinctly Filipino. Antecedent Case Settings On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila. Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before the Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of an alien mother. Petitioner based the allegation of the illegitimate birth of respondent on two assertions - first, Allan F. Poe contracted a 82 Election Laws Election Process and/or Proceedings
prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of respondent. In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support of his claim, presented several documentary exhibits - 1) a copy of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe, after discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a certification issued by the Director of the Records Management and Archives Office, attesting to the fact that there was no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the Philippines before 1907, and 6) a certification from the Officer-In-Charge of the Archives Division of the National Archives to the effect that no available information could be found in the files of the National Archives regarding the birth of Allan F. Poe. On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant ones being - a) a certification issued by Estrella M. Domingo of the Archives Division of the National Archives that there appeared to be no available information regarding the birth of Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the Archives Division of the National Archives that no available information about the marriage of Allan F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage contract between Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said office during the period of from 1900 until May 1946 were totally destroyed during World War II. On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later, or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 06 February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the decision of the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a temporary restraining order, a writ of preliminary injunction or any other resolution that would stay the finality and/or execution of the COMELEC resolutions. The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections, Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.), and Victorino X. Fornier," and the other, docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that, under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue on the case. Jurisdiction of the Court In G. R. No. 161824 In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course to or cancel FPJs certificate of candidacy for alleged misrepresentation of a material fact (i.e., that FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked Section 78 of the Omnibus Election Code "Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false" in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus Election Code "Section 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections" and in relation to Article 69 of the Omnibus Election Code which would authorize "any interested party" to file a verified petition to deny or cancel the certificate of candidacy of any nuisance candidate. Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per Rule 64 in an action for certiorari 3 under Rule 65 of the Revised Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution also reads "Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum, required by the rules of the Commission or by the Commission itself. 83 Election Laws Election Process and/or Proceedings
2
Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in one Supreme Court and in such lower courts as may be established by law which power "includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and could well be taken cognizance of by, this Court. A contrary view could be a gross denial to our people of their fundamental right to be fully informed, and to make a proper choice, on who could or should be elected to occupy the highest government post in the land. In G. R. No. 161434 and G. R. No. 161634 Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead take on the petitions they directly instituted before it. The Constitutional provision cited reads: "The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose." The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to designate any tribunal to 4 be the sole judge of presidential and vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas, as "not (being) justiciable" controversies or disputes involving contests on the elections, returns and qualifications of the President or VicePresident. The constitutional lapse prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of the tribunal. Although the subsequent adoption of the parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory setup, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution. Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election contests consist of either an election protest or a quo warranto which, although two distinct remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this premise "Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President of the Philippines. "Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or a petition for quo warranto against the President or Vice-President. An election protest shall not include a petition for quo warranto. A petition for quo warranto shall not include an election protest. "Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President of the Philippines who received the second or third highest number of votes may contest the election of the President or the Vice-President, as the case may be, by filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the proclamation of the winner." The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of "candidates" for President or Vice-President. A quo warranto proceeding 5 is generally defined as being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office. In such context, the election contest can only contemplate a post-election scenario. In Rule 14, only a registered candidate who would have received either the second or third highest number of votes could file an election protest. This rule again presupposes a postelection scenario. It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the 1987 Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vice-presidency before the elections are held. Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction. 84 Election Laws Election Process and/or Proceedings
The Citizenship Issue Now, to the basic issue; it should be helpful to first give a brief historical background on the concept of citizenship. Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384 to 322 B.C., described the "citizen" 6 to refer to a man who shared in the administration of justice and in the holding of an office. Aristotle saw its significance if only to determine the constituency of the "State," which he described as being composed of such persons who would be adequate in number 7 to achieve a self-sufficient existence. The concept grew to include one who would both govern and be governed, for which qualifications like autonomy, judgment and loyalty could be expected. Citizenship was seen to deal with rights and entitlements, on the 8 one hand, and with concomitant obligations, on the other. In its ideal setting, a citizen was active in public life and fundamentally willing to submit his private interests to the general interest of society. The concept of citizenship had undergone changes over the centuries. In the 18th century, the concept was limited, by and large, to 9 civil citizenship, which established the rights necessary for individual freedom, such as rights to property, personal liberty and justice. Its meaning expanded during the 19th century to include political citizenship, which encompassed the right to participate in the exercise 10 of political power. The 20th century saw the next stage of the development of social citizenship, which laid emphasis on the right of 11 the citizen to economic well-being and social security. The idea of citizenship has gained expression in the modern welfare state as it so developed in Western Europe. An ongoing and final stage of development, in keeping with the rapidly shrinking global village, might 12 well be the internationalization of citizenship. The Local Setting - from Spanish Times to the Present There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or "Spanish subjects." In church records, the natives were called 'indios', denoting a low regard for the inhabitants of the archipelago. Spanish laws on citizenship became highly codified during the 19th century but their sheer number made it difficult to point to one comprehensive law. Not all of these citizenship laws of Spain however, were made to apply to the Philippine Islands except for those explicitly extended by Royal 14 Decrees. Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain on 16 July 1805 but as to whether 15 the law was extended to the Philippines remained to be the subject of differing views among experts; however, three royal decrees 16 were undisputably made applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August 1841, the Royal Decree of 17 23 August 1868 specifically defining the political status of children born in the Philippine Islands, and finally, the Ley Extranjera de 18 Ultramar of 04 July 1870, which was expressly made applicable to the Philippines by the Royal Decree of 13 July 1870. The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the express mandate of its Article 89, 19 according to which the provisions of the Ultramar among which this country was included, would be governed by special laws. It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which came out with the first categorical enumeration of who were Spanish citizens. "(a) Persons born in Spanish territory, "(b) Children of a Spanish father or mother, even if they were born outside of Spain, "(c) Foreigners who have obtained naturalization papers, "(d) Those who, without such papers, may have become domiciled inhabitants of any town of the Monarchy."
20 13
The year 1898 was another turning point in Philippine history. Already in the state of decline as a superpower, Spain was forced to so cede her sole colony in the East to an upcoming world power, the United States. An accepted principle of international law dictated that a change in sovereignty, while resulting in an abrogation of all political laws then in force, would have no effect on civil laws, which would remain virtually intact. The Treaty of Paris was entered into on 10 December 1898 between Spain and the United States. Under Article IX of the treaty, the civil rights and political status of the native inhabitants of the territories ceded to the United States would be determined by its Congress "Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to foreigners. In 85 Election Laws Election Process and/or Proceedings
21
case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they reside. Thus "The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be 22 determined by the Congress." Upon the ratification of the treaty, and pending legislation by the United States Congress on the subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did not become American citizens, they, however, also ceased to be "aliens" under American laws and were thus issued passports describing them to be citizens of the Philippines entitled to the protection of the United States. The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation of the Congress of the United States on the Philippines ".... that all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United 23 States and Spain, signed at Paris, December tenth eighteen hundred and ninety eight." Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the Philippines, and a Spanish subject on the 11 day of April 1899. The term "inhabitant" was taken to include 1) a native-born inhabitant, 2) an inhabitant who was a native of 24 Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11 April 1899.
th
Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July 1902, during which period no citizenship law was extant in the Philippines. Weight was given to the view, articulated in jurisprudential writing at the time, that the common law principle of jus soli, otherwise also known as the principle of territoriality, operative in the United States and England, 25 governed those born in the Philippine Archipelago within that period. More about this later. In 23 March 1912, the Congress of the United States made the following amendment to the Philippine Bill of 1902 "Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possession of the United States, and such other persons residing in the Philippine Islands who would become citizens of the United 26 States, under the laws of the United States, if residing therein." With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 "That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequently thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such others as have since become citizens of some other country; Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States, if residing therein." Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that date, not a citizen of some other country. While there was, at one brief time, divergent views on whether or not jus soli was a mode of acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by adopting, once and for all, jus sanguinis or blood relationship as being the basis of Filipino citizenship 86 Election Laws Election Process and/or Proceedings
"Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines "(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution "(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands. "(3) Those whose fathers are citizens of the Philippines. "(4) Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship. "(5) Those who are naturalized in accordance with law." Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at the time, which provided that women would automatically lose their Filipino citizenship and acquire that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the women from transmitting their Filipino citizenship to their legitimate children and required illegitimate children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority. Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new Constitution on citizenship to reflect such concerns "Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines: "(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution. "(2) Those whose fathers or mothers are citizens of the Philippines. "(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five. "(4) Those who are naturalized in accordance with law." For good measure, Section 2 of the same article also further provided that "A female citizen of the Philippines who marries an alien retains her Philippine citizenship, unless by her act or omission she is deemed, under the law to have renounced her citizenship." The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for subsection (3) thereof that aimed to correct the irregular situation generated by the questionable proviso in the 1935 Constitution. Section I, Article IV, 1987 Constitution now provides: "The following are citizens of the Philippines: "(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution. "(2) Those whose fathers or mothers are citizens of the Philippines. "(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and "(4) Those who are naturalized in accordance with law." The Case Of FPJ Section 2, Article VII, of the 1987 Constitution expresses: "No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election." 87 Election Laws Election Process and/or Proceedings
The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to perform any 27 act to acquire or perfect their Philippine citizenship." The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935 Constitution. Through its 28 history, four modes of acquiring citizenship - naturalization, jus soli, res judicata and jus sanguinis had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of 29 Customs (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of Roa in Tan Chong vs. Secretary of 30 Labor (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth. Documentary evidence adduced by petitioner would tend to indicate that the earliest established direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in evidence, his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan, and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Espaol father, Lorenzo Pou, and a mestiza Espaol mother, Marta Reyes. Introduced by petitioner was an "uncertified" copy of a supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be on 16 September 1940. In the same certificate, Allan F. Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twenty-one years old and married. Considering the reservations made by the parties on the veracity of some of the entries on the birth certificate of respondent and the marriage certificate of his parents, the only conclusions that could be drawn with some degree of certainty from the documents would be that 1. The parents of FPJ were Allan F. Poe and Bessie Kelley; 2. FPJ was born to them on 20 August 1939; 3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940; 4. The father of Allan F. Poe was Lorenzo Poe; and 5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old. Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a public officer. The documents have been submitted in evidence by both contending parties during the proceedings before the COMELEC. The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent. The death certificate of Lorenzo Pou was submitted by respondent as his Exhibit "5." While the last two documents were submitted in evidence for respondent, the admissibility thereof, particularly in reference to the facts which they purported to show, i.e., the marriage certificate in relation to the date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who had utilized those material statements in his argument. All three documents were certified true copies of the originals. Section 3, Rule 130, Rules of Court states that "Original document must be produced; exceptions. - When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: "x x x xxx xxx
"(d) When the original is a public record in the custody of a public office or is recorded in a public office." Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents. Section 44, Rule 130, of the Rules of Court provides: "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 facie evidence of the facts therein stated." 88 Election Laws Election Process and/or Proceedings
The trustworthiness of public documents and the value given to the entries made therein could be grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such statements, and 4) the publicity of record which makes more likely the prior exposure of such errors as 31 might have occurred. The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would argue that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902 considering that there was no existing record about such fact in the Records Management and Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude, or at least to presume, that the place of residence of a person at the time of his death was also his residence before death. It would be extremely doubtful if the Records Management and Archives Office would have had complete records of all residents of the Philippines from 1898 to 1902. Proof of Paternity and Filiation Under Civil Law. Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to the father [or mother]) or paternity (relationship or civil status of the father to the child) of an illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules under civil law must be used. Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of the 32 putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a public document. Complementary to the new code was Act No. 3753 or the Civil Registry Law expressing in Section 5 thereof, that "In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only by the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein any information by which such father could be identified." In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation or paternity, the certificate was required to be signed or sworn to by the father. The failure of such requirement rendered the same useless as being an authoritative 33 34 document of recognition. In Mendoza vs. Mella, the Court ruled "Since Rodolfo was born in 1935, after the registry law was enacted, the question here really is whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the registry record, may be relied upon as sufficient proof of his having been voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While it contains the names of both parents, there is no showing that they signed the original, let alone swore to its contents as required in Section 5 of Act No. 3753. For all that might have happened, it was not even they or either of them who furnished the data to be entered in the civil register. Petitioners say that in any event the birth certificate is in the nature of a public document wherein voluntary recognition of a natural child may also be made, according to the same Article 131. True enough, but in such a case, there must be a clear statement in the document that the parent recognizes the child as his or her own." In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was the signature of Allan F. Poe found. There being no will apparently executed, or at least shown to have been executed, by decedent Allan F. Poe, the only other proof of 35 voluntary recognition remained to be "some other public document." In Pareja vs. Pareja, this Court defined what could constitute such a document as proof of voluntary acknowledgment: "Under the Spanish Civil Code there are two classes of public documents, those executed by private individuals which must be authenticated by notaries, and those issued by competent public officials by reason of their office. The public document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class." Let us leave it at that for the moment. The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a record of birth, a will, a statement before a court of record or in any authentic writing. Legal acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was recognized or judicially declared as natural. Compulsory acknowledgment could be demanded generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to claim legitimacy which would last during the lifetime of the child, and might 89 Election Laws Election Process and/or Proceedings
pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could only be brought during the lifetime of the presumed parent. Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be an authentic writing for purposes of voluntary recognition, simply as being a genuine or indubitable writing of the father. The term would include a public instrument (one duly acknowledged before a notary public or other competent official) or a private writing admitted by the father to be his. The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide: "Art. 172. The filiation of legitimate children is established by any of the following: "(1) The record of birth appearing in the civil register or a final judgment; or "(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. "In the absence of the foregoing evidence, the legitimate filiation shall be proved by: "(1) The open and continuous possession of the status of a legitimate child; or "(2) Any other means allowed by the Rules of Court and special laws. "Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. "The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. "x x x xxx x x x.
"Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same, evidence as legitimate children. "The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent." The provisions of the Family Code are retroactively applied; Article 256 of the code reads: "Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws." Thus, in Vda. de Sy-Quia vs. Court of Appeals,
36
the Court has ruled:
"We hold that whether Jose was a voluntarily recognized natural child should be decided under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that 'the voluntary recognition of a natural child shall take place according to this Code, even if the child was born before the effectivity of this body of laws' or before August 30, 1950. Hence, Article 278 may be given retroactive effect." It should be apparent that the growing trend to liberalize the acknowledgment or recognition of illegitimate children is an attempt to break away from the traditional idea of keeping well apart legitimate and non-legitimate relationships within the family in favor of the greater interest and welfare of the child. The provisions are intended to merely govern the private and personal affairs of the family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the individual would also affect his political rights or, in general, his relationship to the State. While, indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must be taken in the context of private relations, the domain of civil law; particularly "Civil Law is that branch of law which has for its double purpose the organization of the family and the regulation of property. It has thus [been] defined as the mass of precepts which determine and regulate the relations of assistance, authority and obedience among members of a family, and those which exist among members of a society for the protection of private 37 interests." 90 Election Laws Election Process and/or Proceedings
In Yaez de Barnuevo vs. Fuster,
38
the Court has held:
"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family rights and duties, or to the status, condition and legal capacity of persons, govern Spaniards although they reside in a foreign country; that, in consequence, 'all questions of a civil nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile of the husband and wife, their support, as between them, the separation of their properties, the rules governing property, marital authority, division of conjugal property, the classification of their property, legal causes for divorce, the extent of the latter, the authority to decree it, and, in general, the civil effects of marriage and divorce upon the persons and properties of the spouses, are questions that are governed exclusively by the national law of the husband and wife." The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil Code, stating that "Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad" that explains the need to incorporate in the code a reiteration of the Constitutional provisions on citizenship. Similarly, citizenship is 39 40 significant in civil relationships found in different parts of the Civil Code, such as on successional rights and family relations. In adoption, for instance, an adopted child would be considered the child of his adoptive parents and accorded the same rights as their 41 legitimate child but such legal fiction extended only to define his rights under civil law and not his political status. Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be traced to the Spanish family and property laws, which, while defining proprietary and successional rights of members of the family, provided distinctions in the rights of legitimate and illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by foreign blood was paramount. These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and the invidious discrimination survived when the Spanish Civil Code became the primary source of our own Civil Code. Such distinction, however, remains and should remain only in the sphere of civil law and not unduly impede or impinge on the domain of political law. The proof of filiation or paternity for purposes of determining his citizenship status should thus be deemed independent from and not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not have preclusive effects on matters alien to personal and family relations. The ordinary rules on evidence could well and should govern. For instance, the matter about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code provisions. Section 39, Rule 130, of the Rules of Court provides "Act or Declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word `pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree." For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the person whose pedigree is in question, (d) declaration must be made before the controversy has occurred, and (e) the relationship between the declarant and the person whose pedigree is in question mus t be shown by evidence other than such act or declaration. Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe, recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley and his children (including respondent FPJ) in one house, and as one family "I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton, California, U.S.A., after being sworn in accordance with law do hereby declare that: "1. I am the sister of the late Bessie Kelley Poe. "2. Bessie Kelley Poe was the wife of Fernando Poe, Sr. "3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly known in the Philippines as `Fernando Poe, Jr., or `FPJ. 91 Election Laws Election Process and/or Proceedings
"4. Ronald Allan Poe `FPJ was born on August 20, 1939 at St. Luke's Hospital, Magdalena Street, Manila. "x x x xxx xxx
"7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were students at the University of the Philippines in 1936. I was also introduced to Fernando Poe, Sr., by my sister that same year. "8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938. "9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan and Fernando II, and myself lived together with our mother at our family's house on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945, except for some months between 1943-1944. "10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after Ronald Allan Poe. "x x x xxx xxx
"18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr. "Done in City of Stockton, California, U.S.A., this 12th day of January 2004. Ruby Kelley Mangahas Declarant DNA Testing In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be 42 resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals, this Court has acknowledged the strong weight of DNA testing "Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and the child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress." Petitioners Argument For Jurisprudential Conclusiveness Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted marriage with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley bigamous and respondent FPJ an illegitimate child. The veracity of the supposed certificate of marriage between Allan F. Poe and Paulita Gomez could be most doubtful at best. But the documentary evidence introduced by no less than respondent himself, consisting of a birth certificate of respondent and a marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a Filipino father and an American mother who were married to each other a year later, or on 16 September 1940. Birth to unmarried parents would make FPJ an illegitimate child. Petitioner contended that as an illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelley, an American citizen, 43 44 45 basing his stand on the ruling of this Court in Morano vs. Vivo, citing Chiongbian vs. de Leo and Serra vs. Republic. On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most convincing; he states "We must analyze these cases and ask what the lis mota was in each of them. If the pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement would be a decision constituting doctrine under the rule of stare decisis. But if the pronouncement was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter dictum which did not establish doctrine. I therefore invite the Court to look closely into these cases. "First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and a Chinese father. The issue was whether the stepson followed the naturalization of the stepfather. Nothing about jus sanguinis there. The stepson did not have the blood of the naturalized stepfather. 92 Election Laws Election Process and/or Proceedings
"Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino father. It was about a legitimate son of a father who had become Filipino by election to public office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935 Constitution. No one was illegitimate here. "Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father. Serra was an illegitimate child of a Chinese father and a Filipino mother. The issue was whether one who was already a Filipino because of his mother who still needed to be naturalized. There is nothing there about invidious jus sanguinis. "Finally, Paa vs. Chan. This is a more complicated case. The case was about the citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother. Quintin therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court said that there was no valid proof that Leoncio was in fact the son of a Filipina mother. The Court therefore concluded that Leoncio was not Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not even a Filipino. "The Court should have stopped there. But instead it followed with an obiter dictum. The Court said obiter that even if Leoncio, Quintin's father, were Filipino, Quintin would not be Filipino because Quintin was illegitimate. This statement about Quintin, based on a contrary to fact assumption, was absolutely unnecessary for the case. x x x It was obiter dictum, pure and simple, simply repeating the obiter dictum in Morano vs. Vivo. "x x x xxx xxx
46
"Aside from the fact that such a pronouncement would have no textual foundation in the Constitution, it would also violate the equal protection clause of the Constitution not once but twice. First, it would make an illegitimate distinction between a legitimate child and an illegitimate child, and second, it would make an illegitimate distinction between the illegitimate child of a Filipino father and the illegitimate child of a Filipino mother. "The doctrine on constitutionally allowable distinctions was established long ago by People vs. Cayat. I would grant that the distinction between legitimate children and illegitimate children rests on real differences. x x x But real differences alone do not justify invidious distinction. Real differences may justify distinction for one purpose but not for another purpose. "x x x What is the relevance of legitimacy or illegitimacy to elective public service? What possible state interest can there be for disqualifying an illegitimate child from becoming a public officer. It was not the fault of the child that his parents had illicit liaison. Why deprive the child of the fullness of political rights for no fault of his own? To disqualify an illegitimate child from holding an important public office is to punish him for the indiscretion of his parents. There is neither justice nor rationality in that. And if there is neither justice nor rationality in the distinction, then the distinction transgresses the equal protection clause and must be reprobated." The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis of petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail. Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did so for the benefit the child. It was to ensure a Filipino nationality for the illegitimate child of an alien father in line with the assumption that the mother had custody, would exercise parental authority and had the duty to support her illegitimate child. It was to help the child, not to prejudice or discriminate against him. The fact of the matter perhaps the most significant consideration is that the 1935 Constitution, the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never be more explicit than it is. Providing neither conditions nor distinctions, the Constitution states that among the citizens of the Philippines are "those whose fathers are citizens of the Philippines." There utterly is no cogent justification to prescribe conditions or distinctions where there clearly are none provided. In Sum (1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for alleged grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003 which has th prayed for the disqualification of respondent FPJ from running for the position of President in the 10 May 2004 national elections on the contention that FPJ has committed material representation in his certificate of candidacy by representing himself to be a natural-born citizen of the Philippines.
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(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No. 161434 and No. 161634 both having been directly elevated to this Court in the latters capacity as the only tribunal to resolve a presidential and vicepresidential election contest under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked only after, not before, the elections are held. (3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the COMELEC, it is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou would have benefited from the "en masse Filipinization" that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate. (4) But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties to present their position and evidence, and to prove whether or not there has been material 48 misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC, must not only be material, but also deliberate and willful. WHEREFORE, the Court RESOLVES to DISMISS 1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr., Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of jurisdiction. 2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.," for failure to show grave abuse of discretion on the part of respondent Commission on Elections in dismissing the petition in SPA No. 04-003. No Costs. SO ORDERED.
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EN BANC IN THE MATTER OF THE PETITION G.R. Nos. 163619-20 FOR DISQUALIFICATION OF Present: TESS DUMPIT-MICHELENA, Davide, Jr., C.J., TESS DUMPIT-MICHELENA, Puno, Petitioner, Panganiban, - versus Quisumbing, CARLOS BOADO, Ynares-Santiago, FERNANDO CALONGE, Sandoval-Gutierrez, SALVADOR CARRERA, Carpio, BENITO CARRERA, Austria-Martinez, DOMINGO CARRERA, and Corona, ROGELIO DE VERA, Carpio Morales, Respondents. Callejo, Sr., x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Azcuna, IN THE MATTER OF THE PETITION Tinga, TO DENY DUE COURSE OR Chico-Nazario, and TO CANCEL CERTIFICATE Garcia, JJ. OF CANDIDACY FOR MAYOR, Promulgated: TESS DUMPIT-MICHELENA, November 17, 2005 Petitioner, - versus CARLOS BOADO, FERNANDO CALONGE, SALVADOR CARRERA, BENITO CARRERA, DOMINGO CARRERA, and ROGELIO DE VERA, Respondents. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CARPIO, J.: The Cases Before this Court is a petition for certiorari[1] assailing the 9 March 2004 Resolution[2] of the Commission on Elections (COMELEC) Second Division and the 7 May 2004 Resolution[3] of the COMELEC En Banc in SPA 04-015[4] and SPA 04-016.[5] The COMELEC Second Division cancelled the certificate of candidacy of Tess Dumpit-Michelena (Dumpit-Michelena) on the ground of material misrepresentation. The COMELEC En Banc denied Dumpit-Michelenas motion for reconsideration for late filing. The Antecedent Facts Dumpit-Michelena was a candidate for the position of mayor in the municipality of Agoo, La Union during the 10 May 2004 Synchronized National and Local Elections. Engineer Carlos Boado, Rogelio L. De Vera, Fernando Calonge, Benito Carrera, Salvador Carrera and Domingo Carrera (Boado, et al.) sought Dumpit-Michelenas disqualification and the denial or cancellation of her certificate of candidacy on the ground of material misrepresentation under Sections 74[6] and 78[7] of Batas Pambansa Blg. 881 (Omnibus Election Code). Boado, et al. alleged that Dumpit-Michelena, the daughter of Congressman Tomas Dumpit, Sr. (Congressman Dumpit) of the Second District of La Union, is not a resident of Agoo, La Union. Boado, et al. claimed that Dumpit-Michelena is a resident and was a registered voter of Naguilian, La Union and that Dumpit-Michelena only transferred her registration as voter to San Julian West, Agoo, La Union on 24 October 2003. Her presence in San Julian West, Agoo, La Union was noticed only after she filed her certificate of candidacy. Boado, et al. presented, among other things, a joint affidavit of all barangay officials of San Julian West to prove that Dumpit-Michelena is not a resident of the barangay. Dumpit-Michelena countered that she already acquired a new domicile in San Julian West when she purchased from her father, Congressman Dumpit, a residential lot on 19 April 2003. She even designated one Gardo Fontanilla as a caretaker of her residential house. Dumpit-Michelena presented the affidavits and certifications of her neighbors in San Julian West to prove that she actually resides in the area. The Ruling of the COMELEC In a Resolution issued on 9 March 2004, the COMELEC Second Division ruled, as follows: 95 Election Laws Election Process and/or Proceedings
WHEREFORE, premises considered, the instant petitions are hereby GRANTED. Respondent is hereby adjudged to be a non-resident of Brgy. San Julian West, Agoo, La Union for purposes of the May 10, 2004 synchronized national and local elections. Accordingly, her Certificate of Candidacy is hereby CANCELLED on the ground of material misrepresentation under Sections 78 and 74 of the Omnibus Election Code, as amended, in relation to Comelec Resolution No. 6452. SO ORDERED.[8] The COMELEC Second Division held that Boado, et al. established by convincing evidence that Dumpit-Michelena is not a bona fide resident of San Julian West, Agoo, La Union. The COMELEC Second Division found that among the neighbors of Dumpit-Michelena who executed affidavits in her favor, only one is a resident of San Julian West. The others are from other barangays of Agoo, La Union. The COMELEC Second Division noted that several affiants who declared that Dumpit-Michelena resides in San Julian West later retracted their statements on the ground that they did not read the contents of the documents when they signed the affidavits. Dumpit-Michelena moved for the reconsideration of the Resolution of the COMELEC Second Division. In a Resolution issued on 7 May 2004, the COMELEC En Banc denied Dumpit-Michelenas motion for reconsideration. The COMELEC En Banc ruled that the motion for reconsideration was filed three days after the last day of the prescribed period for filing the motion. Hence, the present recourse by Dumpit-Michelena. The Issues The issues raised in the petition are the following: 1. 2. 3. Whether Dumpit-Michelenas motion for reconsideration was filed on time; Whether Dumpit-Michelena was denied due process of law; and Whether Dumpit-Michelena satisfied the residency requirement under the Local Government Code of 1991.
The Ruling of the Court The petition is partly meritorious. On Timeliness of the Motion for Reconsideration We rule that the COMELEC En Banc committed grave abuse of discretion in denying Dumpit-Michelenas motion for reconsideration for late filing. Resolution No. 6452[9] provides: SECTION 8. 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 and 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. In this case, the Resolution cancelling Dumpit-Michelenas Certificate of Candidacy was promulgated in open court on 9 March 2004. Dumpit-Michelenas counsel was present during the promulgation. Following Section 8 of Resolution No. 6452, Dumpit-Michelena had until 12 March 2004 within which to file her motion for reconsideration. However, while Dumpit-Michelena claims to be familiar with Resolution No. 6452, she filed her motion for reconsideration on 15 March 2004. This is because during the promulgation of the cases on 9 March 2004, the COMELEC Second Division issued an Order[10] which states: On call of these cases today for promulgation, counsels for the respondent appeared. There was no appearance for the petitioners. Counsel manifested that they filed a manifestation and motion and an urgent motion holding in abeyance the promulgation of the 96 Election Laws Election Process and/or Proceedings
resolution of these cases. The motions to hold in abeyance the promulgation is hereby denied. However, the respondent may file a motion for reconsideration within five (5) days from receipt of the decision if the decision is adverse to their client. (Emphasis supplied) Apparently, the COMELEC committed an oversight in declaring that Dumpit-Michelena had five days within which to file her motion for reconsideration. The COMELEC overlooked Resolution No. 6452. For her part, Dumpit-Michelena only followed the period provided in the Order. She filed her motion for reconsideration on 15 March 2004 since 14 March 2004 fell on a Sunday. This Court can hardly fault her for following the COMELEC Order. On Denial of Due Process Dumpit-Michelena asserts that she was denied due process when the COMELEC summarily resolved the disqualification case against her without giving her a fair opportunity to submit additional evidence to support her case. Resolution No. 6452 delegates the reception of evidence in disqualification cases to field officials designated by the COMELEC.[11] The summary nature of disqualification proceedings is provided under Section 5(A)(6) of Resolution No. 6452 which states: 6. The proceeding shall be summary in nature. In lieu of the testimonies, the parties shall submit their affidavits or counteraffidavits and other documentary evidence including their position paper or memorandum within a period of three (3) inextendible days; The position paper or memorandum of each party shall contain the following: a. A Statement of the Case, which is a clear and concise statement of the nature of the action, a summary of the documentary evidence and other matters necessary to an understanding of the nature of the controversy; b. c. A Statement of the Issues, which is a clear and concise statement of the issues; The Argument which is a clear and concise presentation of the argument in support of each issue; and
d. The Relief which is a specification of the judgment which the party seeks to obtain. The issues raised in his/its pleadings but not included in the Memorandum shall be deemed waived or abandoned. Being a summation of the parties pleadings and documentary evidence, the Commission may consider the memorandum alone in deciding or resolving the petition. In these cases, Dumpit-Michelena filed a motion for the inhibition of Atty. Marino V. Salas (Atty. Salas), the Provincial Election Supervisor and hearing officer designated to receive the evidence of the parties. She alleged that Boado, et al.s counsel was the former Regional Director of the COMELEC Regional Office and undue influence might be exerted over Atty. Salas. In the meanwhile, she submitted a semblance of a memorandum if only to insure x x x that she would be able to convey her opposition to the petitions filed against her.[12] Dumpit-Michelena alleged that she wanted to submit her evidence to a hearing officer who would not be biased and would not be inclined to side with Boado, et al. Without resolving the Motion to Inhibit, Atty. Salas forwarded the records of the case to COMELEC Manila. However, to obviate suspicion of partiality, Atty. Salas did not make any recommendation as required under Resolution No. 6452. We rule that there was no denial of due process in the cases before the Court. Section 5(A) of Resolution No. 6452 provides: 7. The hearing must be completed within ten (10) days from the date of the filing of the answer. The Hearing Officer concerned shall personally or through his authorized representative submit to the Clerk of the Commission his Hearing/Case report(s) indicating his findings and recommendations within five (5) days from the completion of the hearing and reception of evidence together with the complete records of the case; 8. Upon receipt of the records of the case [indicating] the findings and recommendations of the Hearing Officer concerned, the Clerk of the Commission shall immediately docket the case consecutively and calendar the same for raffle to a division; 9. The division to whom the case is raffled shall, after evaluation and consultation, assign immediately the same to a member who shall pen the decision within five (5) days from the date of consultation. Resolution No. 6452 is clear. The hearing officer is only designated to hear and receive evidence. His conclusions are merely recommendatory upon the COMELEC. Dumpit-Michelena knew fully well that the entire records of the case would be forwarded to COMELEC Manila for the resolution of the cases. She had all the opportunity to present her evidence to support her stand. Instead, 97 Election Laws Election Process and/or Proceedings
she chose to file a Memorandum which she described as one done in half-hearted compliance with the rules.[13] She may not claim now that she was denied due process because she was unable to present all her evidence before the hearing officer. On Residency Requirement Dumpit-Michelena failed to prove that she has complied with the residency requirement. Section 65 of the Omnibus Election Code provides that the qualifications for elective provincial, city, municipal and barangay officials shall be those provided for in the Local Government Code. Section 39(a) of the Local Government Code of 1991[14] states: SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panglungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (Emphasis supplied) The concept of residence in determining a candidates qualification is already a settled matter. For election purposes, residence is used synonymously with domicile.[15] In Co v. Electoral Tribunal of the House of Representatives,[16] this Court declared: x x x The term residence has been understood as synonymous with domicile not only under the previous Constitutions but also under the 1987 Constitution. The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the qualifications of a candidate for congress continues to remain the same as that of domicile, to wit: Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of the elections. So my question is: What is the committees concept of residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile or constructive residence? Mr. Davide: Madame President, insofar as the regular members of the National Assembly are concerned, the proposed section merely provides, among others, and a resident thereof, that is, in the district, for a period of not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile. (Records of the 1987 Constitutional Convention, Vol. II, July 22, 1986, p. 87) xxx Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that resident has been interpreted at times as a matter of intention rather than actual residence. Mr. Delos Reyes: Domicile. M[r]s. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go back to actual residence rather than mere intention to reside? Mr. Delos Reyes: But we might encounter some difficulty especially considering that a provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not physical and actual residence. (Records of the 1987 Constitutional Commission, Vol. II, July 22, 1986, p. 110) The framers of the Constitution adhered to the earlier definition given to the word residence which regarded it as having the same meaning as domicile. Prior to her transfer, Dumpit-Michelena was a resident and registered voter of Ambaracao North, Naguilian, La Union. She claims that she has already acquired a new domicile in San Julian West and is thus qualified to run for the position of mayor. She transferred her registration as a voter of San Julian West on 24 October 2003. Dumpit-Michelena presented a Deed of Sale dated 19 April 2003 showing her acquisition of a parcel of land in San Julian West where she eventually built a house. However, property ownership is not indicia of the right to vote or to be voted for an office.[17] Further, domicile of origin is not easily lost.[18] To successfully effect a change of domicile, there must be concurrence of the following requirements:
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(1) an actual removal or an actual change of domicile; (2) a bona fide intention of abandoning the former place of residence and establishing a new one; and (3) acts which correspond with the purpose.[19] Without clear and positive proof of the concurrence of these three requirements, the domicile of origin continues.[20] To effect change, there must be animus manendi coupled with animus non revertendi.[21] The intent to remain in the new domicile of choice must be for an indefinite period of time, the change of residence must be voluntary, and the residence at the place chosen for the new domicile must be actual.[22] The Court agrees with the COMELEC Second Division that Dumpit-Michelena failed to establish that she has abandoned her former domicile. Among the documents submitted by Dumpit-Michelena is a Special Power of Attorney[23] authorizing Clyde Crispino (Crispino) to apply, facilitate and follow up the issuance of a building permit of the beach house she intended to put up in her lot. She also authorized Crispino to help her caretaker oversee the lot and the construction of the beach house. As correctly pointed out by the COMELEC Second Division, a beach house is at most a place of temporary relaxation. It can hardly be considered a place of residence. In addition, the designation of caretaker with monthly compensation of P2,500[24] only shows that Dumpit-Michelena does not regularly reside in the place. The Deed of Absolute Sale states that Dumpit-Michelena is a resident of Naguilian, La Union[25] while the Special Power of Attorney states that she is a resident of San Julian West, Agoo, La Union and No. 6 Butterfly St. Valle Verde 6, Pasig, Metro Manila. Dumpit-Michelena obviously has a number of residences and the acquisition of another one does not automatically make the most recently acquired residence her new domicile. We considered the affidavits submitted by Dumpit-Michelena where the affiants retracted their previous affidavits stating that DumpitMichelena was not a resident of San Julian West. The affiants alleged that they signed the first affidavits without knowing their contents. However, the COMELEC Second Division pointed out that Boado, et al. also submitted affidavits with the affiants repudiating their previous affidavits that Dumpit-Michelena was a resident of San Julian West. The Court is inclined to give more weight to the joint affidavit of all the barangay officials of San Julian West attesting that Dumpit-Michelena is not a resident of their barangay. Hence, the COMELEC Second Division did not commit grave abuse of discretion in cancelling Dumpit-Michelenas Certificate of Candidacy. WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution dated 9 March 2004 of the COMELEC Second Division and the Resolution dated 7 May 2004 of the COMELEC En Banc with MODIFICATION that Tess Dumpit-Michelenas motion for reconsideration was not filed late. SO ORDERED.
99
NORLAINIE MITMUG LIMBONA, Petitioner, vs. COMMISSION ON ELECTIONS and MALIK "BOBBY" T. ALINGAN, Respondents. RESOLUTION NACHURA, J.: Before this Court is a Petition for Certiorari under Rule 65, in relation to Rule 64, assailing the Resolution1 dated November 23, 2007 of the Second Division of the Commission on Elections (Comelec) and the Resolution2 of the Comelec En Banc dated January 14, 2009 in SPA No. 07-621. The factual and procedural antecedents are as follows: Prior to the May 14, 2007 elections, petitioner Norlainie Mitmug Limbona and her husband, Mohammad "Exchan" Limbona, each filed a Certificate of Candidacy for Mayor of Pantar, Lanao del Norte. On April 2, 2007, private respondent Malik "Bobby" Alingan filed a disqualification case against Mohammad before the Provincial Election Supervisor of Lanao del Norte. On April 12, 2007, Alingan also filed a petition for disqualification against petitioner.3 Both disqualification cases were premised on the ground that petitioner and her husband lacked the one-year residency requirement and both were not registered voters of Pantar.4 On April 17, 2007, petitioner executed an Affidavit of Withdrawal of her certificate of candidacy,5 which was subsequently approved by the Comelec.6 Petitioner also filed a Motion to Dismiss the disqualification case against her for being moot and academic.7 On election day, May 14, 2007, the Comelec resolved to postpone the elections in Pantar because there was no final list of voters yet. A special election was scheduled for July 23, 2007.8 On May 24, 2007, the Comelec First Division promulgated a Resolution disqualifying Mohammad as candidate for mayor for failure to comply with the one-year residency requirement.9 Petitioner then filed her Certificate of Candidacy as substitute candidate on July 21, 2007. On July 23, 2007, Alingan filed a petition for disqualification against petitioner for, among others, lacking the one-year residency requirement (SPA No. 07-621).10 In a Resolution in SPA No. 07-62111 dated November 23, 2007, the Comelec Second Division ruled that petitioner was disqualified from running for Mayor of Pantar. The Comelec held that petitioner only became a resident of Pantar in November 2006. It explained that petitioners domicile of origin was Maguing, Lanao del Norte, her birthplace. When she got married, she became a resident of Barangay Rapasun, Marawi City, where her husband was Barangay Chairman until November 2006. Barangay Rapasun, the Comelec said, was petitioners domicile by operation of law under the Family Code. The Comelec found that the evidence petitioner adduced to prove that she has abandoned her domicile of origin or her domicile in Marawi City two years prior to the elections consisted mainly of self-serving affidavits and were not corroborated by independent and competent evidence. The Comelec also took note of its resolution in another case where it was found that petitioner was not even a registered voter in Pantar. Petitioner filed a Motion for Reconsideration.12 The Comelec resolved the motion in an En Banc Resolution dated January 14, 2009,13 affirming the Second Divisions Resolution disqualifying petitioner. The Comelec said that the issue of whether petitioner has complied with the one-year residency rule has been decided by the Supreme Court in Norlainie Mitmug Limbona v. Commission on Elections and Malik "Bobby" T. Alingan promulgated on June 25, 2008. The Comelec noted that, in said case, the Supreme Court upheld the Comelec First Divisions Decision in SPA No. 07611 disqualifying petitioner from running for mayor of Pantar for failure to comply with the residency requirement. Petitioner is now before this Court assailing the Comelecs November 23, 2007 and January 14, 2009 Resolutions. She posits that the Comelec erred in disqualifying her for failure to comply with the one-year residency requirement. She alleges that in a disqualification case against her husband filed by Nasser Macauyag, another mayoralty candidate, the Comelec considered her husband as a resident of Pantar and qualified to run for any elective office there. Petitioner avers that since her husband was qualified to run in Pantar, she is likewise qualified to run.141avvphi1
100
Petitioner also stresses that she was actually residing and was physically present in that municipality for almost two years prior to the May 2007 elections. During the time she had been residing in Pantar, she associated and mingled with residents there, giving her ample time to know the needs, difficulties, aspirations, and economic potential of the municipality. This, she said, is proof of her intention to establish permanent residency there and her intent to abandon her domicile in Marawi City. She next argues that, even as her husband was Punong Barangay of Rapasun, Marawi City, he never abandoned Pantar as his hometown and domicile of origin. She avers that the performance of her husbands duty in Rapasun did not prevent the latter from having his domicile elsewhere. Hence, it was incorrect for the Comelec to have concluded that her husband changed his domicile only on November 11, 2006.15 At the very least, petitioner says, the Comelecs conflicting resolutions on the issue of her husbands residence should create a doubt that should be resolved in her and her husbands favor.16 She further contends that to disqualify her would disenfranchise the voters of Pantar, the overwhelming majority of whom elected her as mayor during the July 23, 2007 special elections.17 The Comelec, through the Office of the Solicitor General (OSG), filed its Comment, insisting that the Comelec correctly disqualified petitioner from running as mayor for lack of the one-year residency requirement.18 The OSG argues that there is no evidence that petitioner has abandoned her domicile of origin or her domicile in Marawi City.19 Moreover, the OSG said that this Court has ruled on the issue of petitioners residency in Norlainie Mitmug Limbona v. Commission on Elections and Malik "Bobby" T. Alingan.20 Lastly, the OSG contends that the Comelecs ruling in Nasser A. Macauyag v. Mohammad Limbona is not binding on petitioner because she was not a party to the case.21 We dismiss the Petition. The issue of petitioners disqualification for failure to comply with the one-year residency requirement has been resolved by this Court in Norlainie Mitmug Limbona v. Commission on Elections and Malik "Bobby" T. Alingan.22 This case stemmed from the first disqualification case filed by herein respondent against petitioner, docketed as SPA No. 07-611. Although the petitioner had withdrawn the Certificate of Candidacy subject of the disqualification case, the Comelec resolved the petition and found that petitioner failed to comply with the one-year residency requirement, and was, therefore, disqualified from running as mayor of Pantar. A unanimous Court upheld the findings of the Comelec, to wit: WHEREFORE, the petition for certiorari is DISMISSED. The September 4, 2007 Resolution of the Commission on Elections in SPA Case No. 07-611 disqualifying petitioner Norlainie Mitmug Limbona from running for office of the Mayor of Pantar, Lanao del Norte, and the January 9, 2008 Resolution denying the motion for reconsideration, are AFFIRMED. In view of the permanent vacancy in the Office of the Mayor, the proclaimed Vice-Mayor shall SUCCEED as Mayor. The temporary restraining order issued on January 29, 2008 is ordered LIFTED. SO ORDERED.23 The Court found that petitioner failed to satisfy the one-year residency requirement. It held: The Comelec correctly found that petitioner failed to satisfy the one-year residency requirement. The term "residence" as used in the election law is synonymous with "domicile," which imports not only intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. The manifest intent of the law in fixing a residence qualification is to exclude a stranger or newcomer, unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community. For purposes of election law, the question of residence is mainly one of intention. There is no hard and fast rule by which to determine where a person actually resides. Three rules are, however, well established: first, that a man must have a residence or domicile somewhere; second, that where once established it remains until a new one is acquired; and third, a man can have but one domicile at a time. In order to acquire a domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. A persons "domicile" once established is considered to continue and will not be deemed lost until a new one is established. To successfully effect a change of domicile one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one, and definite acts which correspond with the purpose. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. 101 Election Laws Election Process and/or Proceedings
Petitioners claim that she has been physically present and actually residing in Pantar for almost 20 months prior to the elections, is self-serving and unsubstantiated. As correctly observed by the Comelec: In the present case, the evidence adduced by respondent, which consists merely of self-serving affidavits cannot persuade Us that she has abandoned her domicile of origin or her domicile in Marawi City. It is alleged that respondent "has been staying, sleeping and doing business in her house for more than 20 months" in Lower Kalanganan and yet, there is no independent and competent evidence that would corroborate such statement. Further, We find no other act that would indicate respondents intention to stay in Pantar for an indefinite period of time. The filing of her Certificate of Candidacy in Pantar, standing alone, is not sufficient to hold that she has chosen Pantar as her new residence. We also take notice of the fact that in SPA No. 07-611, this Commission has even found that she is not a registered voter in the said municipality warranting her disqualification as a candidate. We note the findings of the Comelec that petitioners domicile of origin is Maguing, Lanao del Norte, which is also her place of birth; and that her domicile by operation of law (by virtue of marriage) is Rapasun, Marawi City. The Comelec found that Mohammad, petitioners husband, effected the change of his domicile in favor of Pantar, Lanao del Norte only on November 11, 2006. Since it is presumed that the husband and wife live together in one legal residence, then it follows that petitioner effected the change of her domicile also on November 11, 2006. Articles 68 and 69 of the Family Code provide: Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (Emphasis ours) Considering that petitioner failed to show that she maintained a separate residence from her husband, and as there is no evidence to prove otherwise, reliance on these provisions of the Family Code is proper and is in consonance with human experience. Thus, for failure to comply with the residency requirement, petitioner is disqualified to run for the office of mayor of Pantar, Lanao del Norte. x x x.24 Petitioners Motion for Reconsideration of the above-quoted Decision was denied with finality on March 3, 2009.25 Petitioner filed another Motion for Reconsideration,26 which the Court treated as a Second Motion for Reconsideration and, consequently, denied in a Resolution dated June 2, 2009.27 Of late, petitioner has filed a "Manifestation" that raises yet again the issues already resolved in the petition and which the Court has, accordingly, merely noted without action.28 Thus, our ruling therein has now attained finality. Consequently, the issue of petitioners compliance with the one-year residency requirement is now settled. We are bound by this Courts ruling in the earlier Limbona case where the issue was squarely raised and categorically resolved. We cannot now rule anew on the merits of this case, especially since the present Petition merely restates issues already passed upon by the Comelec and affirmed by this Court. WHEREFORE, the foregoing premises considered, the Petition is DISMISSED and the Resolution dated November 23, 2007 of the Second Division of the Commission on Elections and the Resolution of the Commission on Elections En Banc dated January 14, 2009 in SPA No. 07-621 are AFFIRMED. SO ORDERED.
102
EN BANC [G.R. No. 157870, November 03, 2008] SOCIAL JUSTICE SOCIETY (SJS), PETITIONER, VS. DANGEROUS DRUGS BOARD AND PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), RESPONDENTS. [G.R. No. 158633] ATTY. MANUEL J. LASERNA, JR., PETITIONER, VS. DANGEROUS DRUGS BOARD AND PHILIPPINE DRUG ENFORCEMENT AGENCY, RESPONDENTS. [G.R. No. 161658] AQUILINO Q. PIMENTEL, JR., PETITIONER, VS. COMMISSION ON ELECTIONS, RESPONDENT. DECISION VELASCO JR., J.: In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue. As far as pertinent, the challenged section reads as follows: SEC. 36. Authorized Drug Testing.Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing: x x x x
(c) Students of secondary and tertiary schools.Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing x x x; (d) Officers and employees of public and private offices.Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, x x x fo r purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; x x x x
(f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test; (g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections) On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows: WHEREAS, Section 36 (g) of Republic Act No. 9165 provides: SEC. x 36. Authorized x Drug Testing.x x x x x
(g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test. WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable 103 Election Laws Election Process and/or Proceedings
to
the
people,
serve
them
with
utmost
responsibility,
integrity,
loyalty
and
efficiency;
WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates they are electing and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x. NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates for public office[:] SECTION 1. Coverage.All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health. SEC. 3. x x x
On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply x x x. SEC. 4. Preparation and publication of names of candidates.Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. x x x SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate.No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.) [1] Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re-election in the May 10, 2004 elections, filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486. Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states: SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator. G.R. No. 157870 (Social Drugs Board and Philippine Drug Enforcement Agency) Justice Society v. Dangerous
In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable searches is also breached by said provisions. G.R. No. 158633 (Atty. Manuel Drugs Board and Philippine Drug Enforcement Agency) J. Laserna, Jr. v. Dangerous
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self-incrimination, and for being contrary to the due process and equal protection guarantees. The Issue on Locus Standi First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional [2] rights mentioned in their separate petitions. It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy which involves the statute 104 Election Laws Election Process and/or Proceedings
sought to be reviewed. But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review [4] unless the constitutional question is brought before it by a party having the requisite standing to challenge it. To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the [5] government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action. The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non-traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching [6] significance to society, or of paramount public interest. There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165. The Consolidated Issues The principal issues before us are as follows:
[3]
(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and (2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power? Pimentel Petition (Constitutionality of Sec. 36[g] of RA 9165 and COMELEC Resolution No. 6486) In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify [7] these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate, or alter or enlarge the Constitution. Pimentel's contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The [8] Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution. In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the [9] Constitution. Whatever limits it imposes must be observed. Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise: Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves [10] of legislative enactment may dash, but over which it cannot leap. Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe [11] both the exercise of the power itself and the allowable subjects of legislation. The substantive constitutional limitations are chiefly [12] found in the Bill of Rights and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators. In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement [13] not otherwise specified in the Constitution. Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add 105 Election Laws Election Process and/or Proceedings
another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug-free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non-compliance with the drug-testing requirement. It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that noncompliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drugtesting on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever. While it is anti-climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance. It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator. SJS Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose, per the policy-declaration portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and [14] enforcement of anti-drug abuse policies, programs and projects." The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point: Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation.A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x. x x x x
Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program.A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions: xxxx School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their [15] recovery is also at a depressingly low rate. The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against [16] [17] unreasonable search and seizure under Sec. 2, Art. III of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state-decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression. US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. [18] 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education), both fairly pertinent US Supreme Court-decided cases involving the constitutionality of governmental search. In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth [19] Amendment of the US Constitution. The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco 106 Election Laws Election Process and/or Proceedings
parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non-athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme [20] Court held that the policy constituted reasonable search under the Fourth and 14th Amendments and declared the random drugtesting policy constitutional. In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra-curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drug-testing policy made to apply to non-athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, nonathletes are entitled to more privacy. The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non-athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no distinction between a non-athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug-testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage. In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory. Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well-being of the people, particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified by the fact [22] that the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty. Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students.
[21]
Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an [23] unwarranted intrusion of the individual right to privacy," has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. [24] III, Secs. 1 and 2 of the Constitution. Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration: The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen's [25] constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow. [26] The essence of privacy is the right to be left alone. In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary [27] sensibilities. And while there has been general agreement as to the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against `unreasonable searches and seizures' into workable broad guidelines for the decision of [28] particular cases is a difficult task," to borrow from C. Camara v. Municipal Court. Authorities are agreed though that the right to [29] privacy yields to certain paramount rights of the public and defers to the state's exercise of police power. As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of [30] the validity of a government search or intrusion. And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government-mandated intrusion on the individual's privacy interest against the promotion of some compelling state [31] interest. In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug-testing policy for employeesand students for that matterunder RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as "swift and informal disciplinary procedures," the probable-cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which 107 Election Laws Election Process and/or Proceedings
effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search "narrowly [32] drawn" or "narrowly focused"? The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the work place." For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access-controlled laboratories [33] monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody. In [34] addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis; that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test [35] results." Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal. To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well-being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among [36] others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test. To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social- economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern-day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem. Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the [37] public service. And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with [38] utmost responsibility and efficiency. Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company's work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established. Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR 108 Election Laws Election Process and/or Proceedings
of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted. The validity of delegating legislative power is now a quiet area in the constitutional landscape. In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here. Laserna Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to [40] the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.
[39]
109
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189698 December 1, 2009
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. DISSENTING OPINION PUNO, C.J.: The case at bar is a Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction seeking to nullify Section 4(a) of Resolution No. 8678 of the Commission on Elections (COMELEC) insofar as it decrees that -[a]ny person holding a public appointive office or position - shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. I. On October 6, 2009, the COMELEC issued Resolution No. 8678 (Resolution 8678) which lays down the rules and guidelines on the filing of certificates of candidacy and nomination of official candidates of registered political parties in connection with the May 10, 2010 National and Local Elections. Resolution 8678 provides, among others, the effects of filing certificates of candidacy, viz.: SECTION 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the 2 same or any other elective office or position. Under Section 4(a) of said Resolution, incumbent public appointive officials (including active members of the Armed Forces of the Philippines) and other officers and employees in government-owned or controlled corporations are deemed ipso facto resigned from their respective offices upon the filing of their respective certificates of candidacy. In contrast, Section 4(b) of the same Resolution provides that incumbent elected officials shall not be considered resigned upon the filing of their respective certificates of candidacy for the same or any other elective office or position. On October 19, 2009, petitioners Eleazar P. Quinto and Gerino A. Tolentino - both incumbent public appointive officials aspiring for 3 elective office in the forthcoming 2010 elections - filed the present Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction, seeking the nullification of Section 4(a) of Resolution 8678, and a declaration by this Court that any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned-and-controlled corporations, shall be considered as ipso facto resigned only upon the start of the campaign period for which they filed their certificates of candidacy. II. Petitioners contend that the COMELEC acted with grave abuse of discretion when it decreed in the assailed Section 4(a) of Resolution 8678 that an appointive government official shall be considered ipso facto resigned from his office upon the filing of his ce rtificate of 4 candidacy. Section 4(a) contravenes existing laws and jurisprudence on the matter. Petitioners point out that under existing law and jurisprudence, a government official who files his certificate of candidacy (within the advanced period fixed by COMELEC) is considered a candidate only from the onset of the campaign period for which his certificate of 5 candidacy was filed, and not upon the mere filing thereof. 110 Election Laws Election Process and/or Proceedings
1
Section 11 of Republic Act No. 8436 (RA 8436), as amended by Republic Act No. 9369 (RA 9369), expressly provides: SEC. 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 and/or the proposition to be voted upon in an initiative, referendum or plebiscite xxx xxxx For this purpose, the Commission shall set the deadline for the filing of the certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon that start of the campaign period: Provided, finally, That any person holding a pu blic appointive office or position, including active members of the armed forces, and officers and employees in government-owned orcontrolled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy. x x x x (italics supplied) Petitioners note that in Lanot vs. COMELEC, we clarified that, consistent with the legislative intent, the advance filing of the certificate of candidacy mandated by RA 8436, as amended by RA 9369, is required only to provide ample time for the printing of official ballots; it 9 does not make the person filing a certificate of candidacy a candidate, except only for ballot-printing purposes. In this regard, petitioners contend that since, by law, a government official who files his certificate of candidacy is considered a candidate only upon the onset of the campaign period for which the certificate was filed, correspondingly, the attendant consequences of candidacy including that of being deemed to have ipso facto resigned from one's office, when and if applicable should take effect 10 only upon the onset of the relevant campaign period. - Thus, appointive officials should be considered ipso facto resigned only upon 11 the start of the campaign period for which their respective certificates of candidacy were filed. Petitioners insist that this interpretation is the better approach since it reconciles and harmonizes the perceived conflict between that portion of Section 13 of RA 9369 which states that [a]ny person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy and the subsequent proviso in the same section which states that any person holding a public appointive office or position x x x shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her candidacy, in a manner that is consistent with the apparent intent of the legislature to treat an appointive government official who files his certificate of candidacy as a 12 candidate only at the start of the campaign period. Section 4(a) violates the equal protection clause of the Constitution. Petitioners also point out that while Section 4(a) of RA 9369 considers incumbent appointive government officials who file their respective certificates of candidacy as "ipso facto resigned" from their offices upon the filing of their certificates of candidacy, a different rule is imposed in the case of incumbent elected officials who, under Section 4(b) of the same law, are not deemed resigned upon the 13 filing of their respective certificates of candidacy for the same or any other elective office or position. Petitioners contend that such differential treatment constitutes discrimination that is violative of the equal protection clause of the 14 Constitution. III. At the outset, it must be noted that the constitutional challenge was raised only with respect to Section 4(a) of Resolution 8678, and solely on equal protection terms. Nevertheless, in resolving the present petition, the ponencia extends its analysis to two other provisions of law - (a) Section 13 of RA 9369, particularly the proviso thereof which states that - any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy, and (b) Section 66 of the Omnibus Election Code. It then proceeds to strike down said provisions not only on equal protection grounds, but on overbreadth terms as well. However, it must be noted that constitutional judgments are justified only out of the necessity of adjudicating rights in particular cases 15 between the litigants before the Court. This principle reflects the conviction that under our constitutional system, courts are not roving 16 commissions assigned to pass judgment on the validity of the nation's laws on matters which have not been squarely put in issue. In striking down these provisions of law, the ponencia ruled that: 111 Election Laws Election Process and/or Proceedings
8
(1) These provisions violate the equal protection clause inasmuch as the differential treatment therein of persons holding appointive offices as opposed to those holding elective positions is not germane to the purposes of the law; and (2) These provisions are unconstitutionally overbroad insofar as they seek to limit the candidacy of all civil servants holding appointive posts without distinction as to whether or not they occupy high/influential positions in the government, and insofar as they seek to limit the activity of seeking any and all public offices, whether they be partisan or nonpartisan in character, or whether they be in the national, municipal or barangay level. According to the ponencia, Congress has not shown a compelling state interest to restrict the fundamental right involved on such a sweeping scale. For reasons explained below, I am constrained to dissent. IV. Before proceeding to discuss the petition in light of the manner in which the majority disposed of the case, it is necessary to first examine the legislative and jurisprudential history of the long-standing rule on deemed resignations, as embodied in the assailed Section 4(a) of Resolution 8678, in order to gain a proper understanding of the matter at hand. Pre-Batas Pambansa Blg. 881: The law on deemed resignations of public officials who participate as candidates in electoral exercises, finds its genesis in Act No. 1582, or the 1907 Election Law, the relevant portion of which reads: Sec. 29. Penalties upon officers. - x x x x No public officer shall offer himself as a candidate, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding, and no judge of the Court of First Instance, justice of peace, provincial fiscal, or officer or employee of the Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner or take part in any municipal, provincial or Assembly election under penalty of being deprived of his office and being disqualified to hold any public office whatever for a term of five years: Provided, however, That the foregoing provision shall not be construed to deprive any person otherwise qualified of the right to vote at any election. Subsequently, the original rule on deemed resignations was bifurcated into two separate provisions of law one for appointive officials, and another for elected officials although the essence of the original rule was preserved for both groups. For appointive officials, Section 22 of Commonwealth Act No. 357 provided that: Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he f iles his certificate of candidacy. As for elected officials, the last paragraph of Section 2 of Commonwealth Act No. 666 stated: Any elective provincial, municipal, or city official running for an office, other than the one for which he has been lastly elected, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy. These rules were substantially reiterated in Republic Act No. 180, part:
17
or the Revised Election Code of 1947, which provides in relevant
SECTION 26. Automatic cessation of appointive officers and employees who are candidates. Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy. SECTION 27. Candidate holding office. - Any elective provincial, municipal, or city official running for an office, other than the one which he is actually holding, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy. However, as may be noticed, Section 27 of the Revised Election Code of 1947 introduced an amendment to the rule in respect of elected officials. While Section 2 of Commonwealth Act No. 666 used the phraseoffice, other than the one for which he has been lastly elected, Section 27 spoke of an office, other than the one which he is actually holding. To be sure, this change was not with out 18 purpose. As we explained in Salaysay v. Castro, et al.: Before the enactment of section 27 of the Revised Election Code, the law in force covering the point or question in controversy was section 2, Commonwealth Act No. 666. Its burden was to allow an elective provincial, municipal, or city official such as Mayor, running 112 Election Laws Election Process and/or Proceedings
for the same office to continue in office until the expiration of his term. The legislative intention as we see it was to favor re-election of the incumbent by allowing him to continue in his office and use the prerogatives and influence thereof in his campaign for re-election and to avoid a break in or interruption of his incumbency during his current term and provide for continuity thereof with the next term of office if re-elected. But section 2, Commonwealth Act No. 666 had reference only to provincial and municipal officials duly elected to their offices and who were occupying the same by reason of said election at the time that they filed their certificates of candidacy for the same position. It did not include officials who hold or occupy elective provincial and municipal offices not by election but by appointment. x x x xxxx However, this was exactly the situation facing the Legislature in the year 1947 after the late President Roxas had assumed office as President and before the elections coming up that year. The last national elections for provincial and municipal officials were held in 1940, those elected therein to serve up to December, 1943. Because of the war and the occupation by the Japanese, no elections for provincial and municipal officials could be held in 1943. Those elected in 1940 could not hold-over beyond 1943 after the expiration of their term of office because according to the views of the Executive department as later confirmed by this Court in the case of Topacio Nueno vs. Angeles, 76 Phil., 12, through Commonwealth Act No. 357, Congress had intended to suppress the doctrine or rule of holdover. So, those provincial and municipal officials elected in 1940 ceased in 1943 and their offices became vacant, and this was the situation when after liberation, President Osmeook over as Chief Executive. He filled these vacant positions by appointment. When President Roxas was elected in 1946 and assumed office in 1947 he replaced many of these Osmeppointees with his own men. Naturally, his Liberal Party followers wanted to extend to these appointees the same privilege of office retention thereto given by section 2, Commonwealth Act No. 666 to local elective officials. It could not be done because section 2, Commonwealth Act No. 666 had reference only to officials who had been elected. So, it was decided by President Roxas and his party to amend said section 2, Commonwealth Act No. 666 by substituting the phrase "which he is actually holding", for the phrase "for which he has been lastly elected" found in section 2 of Commonwealth Act No. 666. xxxx The purpose of the Legislature in making the amendment, in our opinion, was to give the benefit or privilege of retaining office not only to those who have been elected thereto but also to those who have been appointed; stated differently, to extend the privilege and benefit to the regular incumbents having the right and title to the office either by election or by appointment. There can be no doubt, in our opinion, about this intention. We have carefully examined the proceedings in both Houses of the Legislature. The minority Nacionalista members of Congress bitterly attacked this amendment, realizing that it was partisan legislation intended to favor those officials appointed by President Roxas; but despite their opposition the amendment was passed. xxxx We repeat that the purpose of the Legislature in enacting section 27 of the Revised Election Code was to allow an official to continue occupying an elective provincial, municipal or city office to which he had been appointed or elected, while campaigning for his election as long as he runs for the same office. He may keep said office continuously without any break, through the elections and up to the expiration of the term of the office. By continuing in office, the office holder was allowed and expected to use the prerogatives, authority and influence of his office in his campaign for his election or re-election to the office he was holding. Another intention of the Legislature as we have hitherto adverted to was to provide for continuity of his incumbency so that there would be no interruption or break, which 19 would happen if he were required to resign because of his filing his certificate of candidacy. (italics supplied) In that case, the Court was faced with the issue of whether a Vice Mayor, merely acting as Mayor because of the temporary disability of the regular incumbent, comes under the provision and exception of Section 27 of the Revised Election Code of 1947. Ruling that a Vice Mayor acting as Mayor does not "actually hold the office" of Mayor within the meaning of Section 27, we denied the Petition for Prohibition with Preliminary Injunction in this wise: x x x A Vice Mayor acts as Mayor only in a temporary, provisional capacity. This tenure is indefinite, uncertain and precarious. He may act for a few days, for a week or a month or even longer. But surely there, ordinarily, is no assurance or expectation that he could continue acting as Mayor, long, indefinitely, through the elections and up to the end of the term of the office because the t emporary disability of the regular, incumbent Mayor may end any time and he may resume his duties. VICE-MAYOR ACTING AS MAYOR, OUTSIDE LEGAL CONTEMPLATION The case of a Vice-Mayor acting as Mayor could not have been within the contemplation and the intent of the Legislature because as we have already stated, that lawmaking body or at least the majority thereof intended to give the benefits and the privilege of section 27 to those officials holding their offices by their own right and by a valid title either by election or by appointment, permanently 113 Election Laws Election Process and/or Proceedings
continuously and up to the end of the term of the office, not to an official neither elected nor appointed to that office but merely acting provisionally in said office because of the temporary disability of the regular incumbent. In drafting and enacting section 27, how could the Legislature have possibly had in mind a Vice-Mayor acting as Mayor, and include him in its scope, and accord him the benefits of retaining the office of Mayor and utilizing its authority and influence in his election campaign, when his tenure in the office of Mayor is so uncertain, indefinite and precarious that there may be no opportunity or occasion for him to enjoy said benefits, and how could Congress have contemplated his continuing in the office in which he is acting, when the very idea of continuity is necessarily in conflict and incompatible with the uncertainty, precariousness and temporary character of his tenure in the office of Mayor xxxx MEANING OF PHRASE "RESIGNED FROM HIS OFFICE" Section 27 of Republic Act No. 180 in providing that a local elective official running for an office other than the one he is actually holding, is considered resigned from his office, must necessarily refer to an office which said official can resign, or from which he could be considered resigned, even against his will. For instance, an incumbent Mayor running for the office of Provincial Governor must be considered as having resigned from his office of Mayor. He must resign voluntarily or be compelled to resign. It has to be an office which is subject to resignation by the one occupying it. Can we say this of a Vice-Mayor acting as Mayor? Can he or could he resign from the office of Mayor or could he be made to resign therefrom No. As long as he holds the office of Vice-Mayor to which he has a right and legal title, he, cannot resign or be made to resign from the office of Mayor because the law itself requires that as Vice- Mayor he must act as Mayor during the temporary disability of the regular or incumbent Mayor. If he cannot voluntarily resign the office of Mayor in which he is acting temporarily, or could not be made to resign therefrom, then the provision of section 27 of the Code about resignation, to him, would be useless, futile and a dead letter. In interpreting a law, we should always avoid a construction that would have this result, for it would violate the fundamental rule that every legislative act should be interpreted in order to give force and effect to every provision thereof because the Legislature is not presumed to have done a useless act. xxxx ANOTHER EXAMPLE The regular incumbent Mayor files his certificate of candidacy for the same office of Mayor. Then he goes on leave of absence or falls sick and the Vice-Mayor acts in his place, and while thus acting he also files his certificate of candidacy for the same office of Mayor. Then the Vice-Mayor also goes on leave or falls sick or is suspended, and because the regular Mayor is still unable to return to office, under section 2195 of the Revised Administrative Code, the councilor who at the last general elections received the highest number of votes, acts as Mayor and while thus acting he also files his certificate of candidacy for the office of Mayor. The Vice-Mayor also campaigns for the same post of Mayor claiming like the herein petitioner that he did not lose his office of Vice-Mayor because he filed his certificate of candidacy while acting as Mayor and thus was actually holding the office of Mayor. Using the same argument, the councilor who had previously acted as Mayor also campaigns for his election to the same post of Mayor while keeping his position as councilor. Thus we would have this singular situation of three municipal officials occupying three separate and distinct offices, running for the same office of Mayor, yet keeping their different respective offices, and strangely enough two of those offices (Vice- Mayor and Councilor) are different from the office of Mayor they are running for. Could that situation have been contemplated by the Legislature in enacting section 27 of the Revised Election Code? We do not think so, and yet that would happen if the contention of the petitioner about the meaning of "actually holding office" is to prevail. xxxx TWO OFFICIALS "ACTUALLY HOLDING" THE SAME ELECTIVE OFFICE We have already said that a Mayor under temporary disability continues to be Mayor (Gamalinda vs. Yap * No. L-6121, May 30, 1953) and actually holds the office despite his temporary disability to discharge the duties of the office; he receives full salary corresponding to his office, which payment may not be legal if he were not actually holding the office, while the Vice-Mayor acting as Mayor does not receive said salary but is paid only a sum equivalent to it (section 2187, Revised Administrative Code). Now, if a Mayor under temporary disability actually holds the office of Mayor and the Vice-Mayor acting as Mayor, according to his claim is also actually holding the office of Mayor, then we would have the anomalous and embarrassing situation of two officials actually holding the very same local elective office. Considered from this view point, and to avoid the anomaly, it is to us clear that the Vice-Mayor should not be regarded as holding the office of Mayor but merely acting for the regular incumbent, a duty or right as an incident to his office of ViceMayor and not as an independent right or absolute title to the office by reason of election or appointment. xxxx EXCEPTION TO BE CONSTRUED STRICTLY 114 Election Laws Election Process and/or Proceedings
Section 26 of the Revised Election Code provides that every person holding an appointive office shall ipso facto cease in his office on the date he files his certificate of candidacy. Then we have section 27 of the same Code as well as section 2 of Commonwealth Act No. 666 which it amended, both providing that local elective officials running for office shall be considered resigned from their posts, except when they run for the same office they are occupying or holding. It is evident that the general rule is that all Government officials running for office must resign. The authority or privilege to keep one's office when running for the same office is the exception. It is a settled rule of statutory construction that an exception or a proviso must be strictly construed specially when considered in an attempt to ascertain the legislative intent. xxxx Applying this rule, inasmuch as petitioner herein claimed the right to retain his office under the exception above referred to, said claim must have to be judged strictly, whether or not his mere acting in the office of Mayor may be legally interpreted as actually holding the same so as to come within the exception. As we have already observed, literally and generally speaking, since he is discharging the duties and exercising the powers of the office of Mayor he might be regarded as actually holding the office; but strictly speaking and considering the purpose and intention of the Legislature behind section 27 of the Revised Election Code, he may not and cannot legitimately be considered as actually holding the office of Mayor. RETENTION OF OFFICE We have, heretofore[,] discussed the case as regards the resignation of an office holder from his office by reason of his running for an office different from it; and our conclusion is that it must be an office that he can or may resign or be considered resigned from; and that the office of Mayor is not such an office from the stand point of a Vice-Mayor. Let us now consider the case from the point of view of retaining his office because he is running for the same office, namely retention of his office. As we have already said, the Legislature intended to allow an office holder and incumbent to retain his office provided that he runs for the same. In other words, he is supposed to retain the office before and throughout the elections and up to the expiration of the term of the office, without interruption. Can a ViceMayor acting as Mayor be allowed or expected to retain the office of Mayor The incumbent Mayor running for the same office can and has a right to keep and retain said office up to the end of his term. But a Vice-Mayor merely acting as Mayor and running for said office of Mayor, may not and cannot be expected to keep the office up to the end of the term, even assuming that by acting as Mayor he is actually holding the office of Mayor, for the simple reason that his holding of the same is temporary, provisional and precarious and may end any time when the incumbent Mayor returns to duty. Naturally, his temporary holding of the office of Mayor cannot be the retention or right to keep the office intended by the Legislature in section 27 of Republic Act No. 180. So that, neither from the point of view of resignation from the office of Mayor nor the standpoint of retention of said office, may a Vice-Mayor acting as Mayor, like herein 20 petitioner, come within the provisions and meaning of section 27 of the Election Code, particularly the exception in it. (italics supplied) In contrast, Castro v. Gatuslao dealt with the issue of whether a Vice Mayor who had filed a certificate of candidacy for reelection to the same post, and who on the next day became Mayor, due to vacancy in the mayoralty, comes within the sphere of action of Section 27 of Republic Act No. 180. We ruled in the negative, as follows: The last words of said section, "shall be considered resigned from the moment of the filing of his certificate of candidacy", indicates that the moment of such filing is the point of time to be referred to for the operation and application of the statute, and for the determination of its essential prerequisite, to wit, that the official involved shall file his candidacy for an office other than that which he is actually holding. The law nowhere mentions or refers to positions that the candidate might hold either before or after the filing of the certificate of candidacy. What office was petitioner Castro actually holding on September 8, 1955, when he filed his certificate of candidacy- Vice-Mayor of Manapla. For what office did he run and file his certificate of candidacy- For Vice-Mayor of Manapla. Clearly, then, he was a candidate for a position that he was actually holding at the time he filed his certificate of candidacy, for "actually" necessarily refers to that particular moment; hence, he should not be considered resigned or deemed to have forfeited his post. Deprivation of office without fault of the holder is not to be lightly presumed nor extended by implication. That the petitioner came later to hold another office by operation of law, does not alter the case. The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken into account. The law does not make the forfeiture dependent upon future contingencies, unforeseen and unforeseeable, since the vacating is expressly made effective as of the moment of the filing of the certificate of candidacy, and there is nothing to show that the forfeiture is to operate retroactively. The statute does not decree that an elective municipal official must be considered resigned if he runs for an office other than the one held by him at or subsequently to the filing of his certificate of candidacy; neither does it declare that he must vacate if he runs for an office other than the one actually held by him at any time before the day of the election. Since the law did not divest the petitioner Castro of his position of Vice-Mayor, he was entitled to the mayoralty of Manapla when that post became vacant the next day; and as his assumption of that office did not make herein petitioner hold a post different from that for which he became a candidate at the time his certificate of candidacy was filed, he did not forfeit the office of Mayor; therefore the respondent could not legally appoint another mayor for Municipality of Manapla. Petitioner's case becomes the more meritorious when 22 it is considered that he was elevated from Vice-Mayor to Mayor by operation of law and not by his own will. (italics supplied) 115 Election Laws Election Process and/or Proceedings
21
As to the nature of the forfeiture of office, Section 27 of the Revised Election Code is clear: it is automatic and permanently effective 23 24 upon the filing of the certificate of candidacy for another office. Only the moment and act of filing are considered. Once the certificate is filed, the seat is forfeited forever and nothing save a new election or appointment can restore the ousted official, even if the certificate 25 itself be subsequently withdrawn. Moving forward, Republic Act No. 6388, follows:
26
or the Election Code of 1971, imposed similar provisos on appointive and elective officials, as
SECTION 23. Candidates Holding Appointive Office or Position. - Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines and every officer or employee in government-owned or controlled corporations, shall ipso-facto cease in his office or position on the date he files his certificate of candidacy: Provided, That the filing of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which he may have incurred. SECTION 24. Candidate Holding Elective Office. - Any elective provincial, sub-provincial, city, municipal or municipal district officer running for an office other than the one which he is holding in a permanent capacity shall be considered ipso facto resigned from his office from the moment of the filing of his certificate of candidacy. Every elected official shall take his oath of office on the day his term of office commences, or within ten days after his proclamation if said proclamation takes place after such day. His failure to take his oath of office as herein provided shall be considered forfeiture of his right to the new office to which he has been elected unless said failure is for a cause or causes beyond his control. However, the Election Code of 1971 was subsequently repealed by Presidential Decree No. 1296, or the 1978 Election Code. The latter law provided the same rule on deemed resignations of appointive officials, with the added exception that Cabinet members shall continue in their offices, subject to the pleasure of the President. Section 29 of the 1978 Election Code thus states: SECTION 29. Candidates holding appointive office or position. - Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy. Members of the Cabinet shall continue in the offices they presently hold notwithstanding the filing of certificate of candidacy, subject to the pleasure of the President of the Philippines. With respect to elected officials, the 1978 Election Code initially provided a different rule. Instead of deeming them ipso facto resigned from office upon filing their certificates of candidacy, they were merely considered on forced leave of absence, viz.: SECTION 30. Candidates holding political office. - Governors, mayors, members of the various sanggunians, or barangay officials, shall, upon filing of a certificate of candidacy, be considered on forced leave of absence from office. Almost two years later, however, President Marcos anticipated that applying "... Section 30 in the local elections on January 30, 1980, may give rise to chaos and confusion due to the difficulty of designating promptly and immediately the replacements of such officials to 28 29 assure the continuity and stability of local governments." He accordingly issued Presidential Decree No. 1659 and Presidential 30 Decree No. 1659-A, which reverted to the former rule on deemed resignations. Consequently, elected provincial, city, municipal, or municipal district officers who ran for offices other than the ones which they were holding, were considered ipso facto resigned from their respective offices upon the filing of their certificates of candidacy, as follows: SEC. 1. Candidate holding elective office. - Any person occupying an elective provincial, city, municipal, or municipal district position who runs for an office other than the one which he is holding shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy: Provided, however, That during the pendency of the election, the President of the Philippines may appoint in an acting capacity said candidate to the office for which he filed a certificate of candidacy and which has been rendered vacant by virtue of 31 the operation of the preceding provision of this section. Batas Pambansa Blg. 881: On December 3, 1985, President Marcos approved Batas Pambansa Blg. 881, or the Omnibus Election Code. provisions provide in relevant part:
32 27
The pertinent
SECTION 66. Candidates holding appointive office or positions. - Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. SECTION 67. Candidates holding elective office. - Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. 116 Election Laws Election Process and/or Proceedings
As may be gleaned therefrom, the Omnibus Election Code substantially retained the rules on deemed resignations for both elected and appointive officials, except that: (1) Cabinet members were no longer considered a unique class of appointive officials who may, subject to the pleasure of the President, continue in their offices notwithstanding the filing of their certificates of candidacy; (2) The rule covering elected officials was expanded to include those holding national offices; (3) Nevertheless, the rule covering elected officials carved out an exception insofar as the presidency and vice presidency are concerned, such that an elected official who was running for President or Vice-President, was not considered ipso facto resigned from his office upon the filing of his certificate of candidacy. In Dimaporo v. Mitra, et al., this Court elucidated on the changes made in respect of elected officials (i.e., (2) and (3) enumerated above) by adverting to the plenary deliberations of the Batasang Pambansa, thus: It must be noted that only in B.P. Blg. 881 are members of the legislature included in the enumeration of elective public officials who are to be considered resigned from office from the moment of the filing of their certificates of candidacy for another office, except for President and Vice-President. The advocates of Cabinet Bill No. 2 (now Section 67, Article IX of B.P. Blg. 881) elucidated on the 34 rationale of this inclusion, thus: MR. PALMARES: In the old Election Code, Your Honor, in the 1971 Election Code, the provision seems to be different ? I think this is in Section 24 of Article III. Any elective provincial, sub-provincial, city, municipal or municipal district officer running for an office other than the one which he is holding in a permanent capacity shall be considered ipso facto resigned from his office from the moment of the filing of his certificate of candidacy. May I know, Your Honor, what is the reason of the Committee in departing or changing these provisions of Section 24 of the old Election Code and just adopting it en toto- Why do we have to change it? What could possibly be the reason behind it, or the rationale behind it? MR. PEREZ (L.): I have already stated the rationale for this, Mr. Speaker, but I don't mind repeating it. The purpose is that the people must be given the right to choose any official who belongs to, let us say, to the Batasan if he wants to run for another office. However, because of the practice in the past where members of the legislature ran for local offices, but did not assume the office, because of that spectacle the impression is that these officials were just trifling with the mandate of the people. They have already obtained a mandate to be a member of the legislature, and they want to run for mayor or for governor and yet when the people give them that mandate, they do not comply with that latter mandate, but still preferred (sic) to remain in the earlier mandate. So we believe, Mr. Speaker, that the people's latest mandate must be the one that will be given due course. . . . Assemblyman Manuel M. Garcia, in answer to the query of Assemblyman Arturo Tolentino on the constitutionality of Cabinet Bill No. 2, 35 said: MR. GARCIA (M.M.): Thank you, Mr. Speaker. Mr. Speaker, on the part of the Committee, we made this proposal based on constitutional grounds. We did not propose this amendment mainly on the rationale as stated by the Gentlemen from Manila that the officials running for office other than the ones they are holding will be considered resigned not because of abuse of facilities of power or the use of office facilities but primarily because under our Constitution, we have this new chapter on accountability of public officers. Now, this was not in the 1935 Constitution. It states that (sic) Article XIII, Section 1 - 'Public office is a public trust. Public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain accountable to the people.' Now, what is this significance of this new provision on accountability of public officers' This only means that all elective public officials should honor the mandate they have gotten from the people. Thus, under our Constitution, it says that: 'Members of the Batasan shall serve for the term of 6 years, in the case of local officials and 6 years in the case of barangay officials.[?] Now, Mr. Speaker, we have precisely included this as part of the Omnibus Election Code because a Batasan Member who hold (sic) himself out with the people and seek (sic) their support and mandate should not be allowed to deviate or allow himself to run for any other position unless he relinquishes or abandons his office. Because his mandate to the people is to serve for 6 years. Now, if you allow a Batasan or a governor or a mayor who was mandated to serve for 6 years to file for an office other than the one he was elected to, then, that clearly shows that he has not (sic) intention to service the mandate of the people which was placed upon him and therefore he should be considered ipso facto resigned. I think more than anything that is the accountability that the Constitution requires of elective public officials. It is not because of the use or abuse of powers or facilities of his office, but it is because of the Constitution itself which I said under the 1973 Constitution called and inserted this new chapter on accountability. 117 Election Laws Election Process and/or Proceedings
33
Now, argument was said that the mere filing is not the intention to run. Now, what is it for? If a Batasan Member files the certificate of candidacy, that means that he does not want to serve, otherwise, why should he file for an office other than the one he was elected to? The mere fact therefore of filing a certificate should be considered the overt act of abandoning or relinquishing his mandate to the people and that he should therefore resign if he wants to seek another position which he feels he could be of better service.? As I said, Mr. Speaker, I disagree with the statements of the Gentleman from Manila because the basis of this Section 62 is the constitutional provision not only of the fact that Members of the Batasan and local officials should serve the entire 6-year term for which we were elected, but because of this new chapter on the accountability of public officers not only to the community which voted him to office, but primarily because under this commentary on accountability of public officers, the elective public officers must serve their principal, the people, not their own personal ambition. And that is the reason, Mr. Speaker, why we opted to propose Section 62 where candidates or elective public officers holding offices other than the one to which they were elected, should be considered ipso facto 36 resigned from their office upon the filing of the certificate of candidacy. (emphasis in the original) Corollarily, Dimaporo v. Mitra, et al. involved Mohamad Ali Dimaporo, who was elected Representative for the Second Legislative District of Lanao del Sur during the 1987 congressional elections. He took his oath of office on January 9, 1987 and thereafter performed the duties and enjoyed the rights and privileges pertaining thereto. Three years later, he filed with the COMELEC a Certificate of Candidacy for the position of Regional Governor of the Autonomous Region in Muslim Mindanao. Upon being informed of this development, the Speaker and Secretary of the House of Representatives excluded Dimaporo's name from the Roll of Members of the House of Representatives pursuant to Section 67 of the Omnibus Election Code. Having lost in the 1990 elections, petitioner expressed his intention to the Speaker of the House of Representatives -to resume performing my duties and functions as elected Member of Congress,- but he failed in his bid to regain his seat. We sustained Dimaporo's forfeiture of his congressional seat. Holding that the concept of voluntary renunciation of office under Section 7, Article VI of the Constitution is broad enough to include the situation envisioned in Section 67 of the Omnibus Election Code, we ruled: That the act, contemplated in Section 67, Article IX of 8.P. Blg. 881, of filing a certificate of candidacy for another office constitutes an overt, concrete act of voluntary renunciation of the elective office presently being held is evident from this exchange between the Members of Parliament Arturo Tolentino and Jose Ro "MR. RO: My reasonable ground is this: if you will make the person . . . my, shall we say, basis is that in one case the person is intending to run for an office which is different from his own, and therefore it should be considered, at least from the legal significance, an intention to relinquish his office. MR. TOLENTINO: Yes. MR. RO: And in the other, because he is running for the same position, it is otherwise. MR. TOLENTINO: Yes, but what I cannot see is why are you going to compel a person to quit an office which he is only intending to leave? A relinquishment of office must be clear, must be definite. MR. RO: Yes, sir. That's precisely, Mr. Speaker, what I am saying that while I do not disagree with the conclusion that the intention cannot be enough, but I am saying that the filing of the certificate of candidacy is an overt act of such intention. It's not just an intention: it's already there." In Monroy vs. Court of Appeals, a case involving Section 27 of R.A. No. 180 above-quoted, this Court categorically pronounced that "forfeiture (is) automatic and permanently effective upon the filing of the certificate of candidacy for another office. Only the moment and act of filing are considered. Once the certificate is filed, the seat is forever forfeited and nothing save a new election or appointment can restore the ousted official. Thus, as We had occasion to remark, through Justice J.B.L. Reyes, in Castro vs. Gatuslao:
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. . . 'The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken into account. The law does not make the forfeiture dependent upon future contingencies, unforeseen and unforeseeable, since the vacating is expressly made as of the moment of the filing of the certificate of candidacy....'? As the mere act of filing the certificate of candidacy for another office produces automatically the permanent forfeiture of the elective position being presently held, it is not necessary, as petitioner opines, that the other position be actually held. The ground for forfeiture in Section 13, Article VI of the 1987 Constitution is different from the forfeiture decreed in- Section- 67, Article- IX of B.P.- Blg. 881,which is actually a mode of voluntary renunciation of office under Section 7, par. 2 of Article VI of the Constitution. The legal effects of filing a certificate of candidacy for another office having been spelled out in Section 67, Article IX, B.P. Blg. 881 itself, no statutory interpretation was indulged in by respondents Speaker and Secretary of the House of Representatives in excluding petitioner's name from the Roll of Members. The Speaker is the administrative head of the House of Representatives and he exercises administrative powers and functions attached to his office. As administrative officers, both the Speaker and House Secretary-General perform ministerial functions. It was their duty to remove petitioner's name from the Roll considering the unequivocal tenor of Section 67, Article IX, B.P. Blg. 881. When the Commission on Elections communicated to the House of Representatives that petitioner had filed his certificate of candidacy for regional governor of Muslim Mindanao, respondents had no choice but to abide by the clear and unmistakable legal effect of Section 67, Article IX of B.P. Blg. 881. It was their ministerial duty to do so. These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for this is obvious. It might seriously hinder the transaction of public business if these officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared unconstitutional. Officers of the 37 government from the highest to the lowest are creatures of the law and are bound to obey it. Aguinaldo, et al. v. Commission on Elections provided the occasion to revisit that issue. In that case, petitioners sought to prevent the COMELEC from enforcing Section 67 on the ground that it was violative of the Constitution in that it effectively shortens the terms of office of elected officials. We, however, fully reiterated the applicability of the doctrine of voluntary renunciation announced in Dimaporo v. Mitra, et al. Further to the rule on appointive officials, PNOC Energy Development Corporation, et al. v. National Labor Relations Commission, et 39 al. held that an employee in a government-owned or -controlled corporation without an original charter (and therefore not covered by Civil Service Law) still falls within the scope of Section 66 of the Omnibus Election Code. We ruled: When the Congress of the Philippines reviewed the Omnibus Election Code of 1985, in connection with its deliberations on and subsequent enactment of related and repealing legislation - i.e., Republic Acts Numbered 7166: "An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes" (effective November 26, 1991), 6646: "An Act Introducing Additional Reforms in the Electoral System and for Other Purposes" (effective January 5, 1988) and 6636: "An Act Resetting the Local Elections, etc." (effective November 6, 1987), it was no doubt aware that in light of Section 2(1), Article IX of the 1987 Constitution: (a) government-owned or controlled corporations were of two (2) categories - those with original charters, and those organized under the general law and (b) employees of these corporations were of two (2) kinds those covered by the Civil Service Law, rules and regulations because employed in corporations having original charters, and those not subject to Civil Service Law but to the Labor Code because employed in said corporations organized under the general law, or the Corporation Code. Yet Congress made no effort to distinguish between these two classes of government-owned or controlled corporations or their employees in the Omnibus Election Code or subsequent related statutes, particularly as regards the rule that an any employee "in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy." Be this as it may, it seems obvious to the Court that a government-owned or controlled corporation does not lose its character as such because not possessed of an original charter but organized under the general law. If a corporation's capital stock is owned by the Government, or it is operated and managed by officers charged with the mission of fulfilling the public objectives for which it has been organized, it is a government-owned or controlled corporation even if organized under the Corporation Code and not under a special statute; and employees thereof, even if not covered by the Civil Service but by the Labor Code, are nonetheless "employees in government-owned or controlled corporations," and come within the letter of Section 66 of the Omnibus Election Code, declaring them "ipso facto resigned from . . . office upon the filing of . . . (their) certificate of candidacy." What all this imports is that Section 66 of the Omnibus Election Code applies to officers and employees in government-owned or controlled corporations, even those organized under the general laws on incorporation and therefore not having an original or legislative charter, and even if they do not fall under the Civil Service Law but under the Labor Code. In other words, Section 66 constitutes just 40 cause for termination of employment in addition to those set forth in the Labor Code, as amended. (italics supplied) Republic Act No. 8436: RA 8436 was silent on the rule in respect of appointive officials. Therefore, the governing law on the matter is still the one provided under the Omnibus Election Code. Hence, any person holding a public appointive office or position, including active members of the Election Laws Election Process and/or Proceedings
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Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. On the other hand, RA 8436 modified the rule in respect of the automatic resignation of elected officials running for any office other than the ones they were currently holding in a permanent capacity, except the presidency and the vice presidency. Whereas, under the Omnibus Election Code they were considered ipso facto resigned from office upon filing their certificates of candidacy, RA 8436 considered them resigned only upon the start of the campaign period corresponding to the positions for which they are running, viz.: SECTION 11. Official Ballot. - x x x xxxx For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and 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, x x x. (italics supplied) In temporal terms, however, the distinction is more apparent than real. RA 8436 authorized the COMELEC to use an automated election system in the 1998 election and succeeding elections. Considering that automation requires a pre-printed ballot, the legislators deemed it necessary to move the deadline for the filing of certificates of candidacy to 120 days before election day. If the reckoning point of the automatic resignation was not moved to the start of the campaign period, then elected officials running for any office other than the ones they were holding in a permanent capacity (except the presidency and the vice presidency), were going to be considered resigned as early as 120 days before the election, leaving their constituents bereft of public officials for an extended period of time. This was the evil sought to be avoided by the legislators when they transferred the reckoning period of deemed resignations from the time the certificate of candidacy is filed (under the pre-RA 8436 regime) to the start of the campaign period (under RA 8436). After all, RA 8436 did not alter the campaign periods provided under existing election laws. Consequently, the end result is that the particular point in time (vis-is election day) at which an elected official is considered resigned under RA 8436, is not significantly different from the point in time at which an elected official was considered resigned prior to RA 8436. The deliberations of the Bicameral Conference Committee on this point are instructive:
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THE CHAIRMAN (REP. TANJUATCO). Further to the question of the Deputy Speaker, the comment of this representation concerning the filing of certificate of candidacy in 2001, I suggest should also be applied to 1998, in the sense that the mere filing of the certificate of candidacy at an earlier date should not result in the loss of the office by a person running for a position other than what he is holding, nor the restrictions that will apply to a candidate. Would the Senate agree to that? THE CHAIRMAN (SEN. FERNAN). You know, that particular proviso, we eliminated. SEN. GONZALES. Yes. THE CHAIRMAN (SEN. FERNAN). Because some Senators felt that it will be applied to them and they would be considered resigned, ano? But it was earlier manifested that it will be worded in such a way that it will not apply to those running for [the] presidency and vice-presidency. SEN. GONZALES. That is the present law. THE CHAIRMAN (SEN. FERNAN). Yeah, that is the present law. So, the present law will be maintained but the concern about the inclusion of that particular provision is because they don't want a long period for them to be considered resigned. In other words, if you file your certificate of candidacy on January 11 and you are already considered resigned, there is a long gap until election day. THE CHAIRMAN (REP. TANJUATCO). That's right. THE CHAIRMAN (SEN. FERNAN). They were hoping that it will be limited only to 45 days before election. THE CHAIRMAN (REP. TANJUATCO). In the case of non-national candidates.
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THE CHAIRMAN (SEN. FERNAN). Non-national. I mean, what would you feel? THE CHAIRMAN (REP. TANJUATCO). Just to clarify to our Senate counterparts, there was no intention on the part of the House to withdraw the provision in existing law that the Senator running for president or vice-president will not be deemed resigned even if he files his certificate of candidacy for those offices. The only reason why the provision adverted to was included was, as the distinguished Chairman mentioned, to avoid the situation where the constituency of that official filing that certificate of candidacy will be bereft of an official that that constituency elected for a three-year period. THE CHAIRMAN (SEN. FERNAN). So, the phraseology is, - Provided that the candidate who is aspiring for an elective office other than his incumbent position or the presidency or the vice-presidency, shall be deemed resigned forty-five (45) days before elections. THE CHAIRMAN (REP. TANJUATCO). Or maybe using the word under existing law. REP. ABUEG. Mr. Chairman. THE CHAIRMAN (REP. TANJUATCO). Our expert. REP. ABUEG. To make it clear, while in the Senate version this was deleted, in order to remove any doubt, we can provide here the exception that, "except for the Office[s] of the President and Vice President, a candidate who is aspiring for an elected position other than his incumbent position shall be deemed resigned forty-five (45) days before the election." So, that will leave no room for doubt that the exemption existing is also carried in this proposed bill, proposed law. THE CHAIRMAN (SEN. FERNAN). x x x Okay. So, if we agree, provided that it excludes those aspiring for the presidency and vicepresidency. THE CHAIRMAN (REP. TANJUATCO). Yeah. REP. DAZA. Mr. Chairman, in other words, we will keep the exception that for those running for president or vice-president, there is no resignation. x x x xxxx THE CHAIRMAN (REP. TANJUATCO). Let's start to categorize it first. Insofar as elections from x x x 2001 and thereafter are concerned, Comelec has agreed that [the] 120-day period would be sufficient to print the ballots. But again since we don't want to bring about a situation where an official who has been elected by his constituency for a term of three years to be removed from office way, way before the start of the campaign period, we would ask that the proviso that he will not be deemed resigned from the office, if he is deemed resigned under existing law, should be that he will be deemed resigned only at the start of the campaign period. xxxx We are not altering the present rule concerning resignations as a result of filing of certificates of candidacy. As a matter of fact, we are providing this so that the existing rule [in respect of the proximity of the "deemed resignation" to the election] will not be changed. THE ACTING CHAIRMAN (SEN. FERNAN). Okay. So, instead of saying "deemed resigned 45 days before the elections", it should be "at the start of the campaign period". THE CHAIRMAN (REP. TANJUATCO). At the start of the campaign period. THE ACTING CHAIRMAN (SEN. FERNAN). Deemed resigned at the start of the campaign period. THE CHAIRMAN (REP. TANJUATCO). For which he is running. THE ACTING CHAIRMAN (SEN. FERNAN). And then we will also exclude the presidency or vice presidency as provided by existing law THE CHAIRMAN (REP. TANJUATCO). That's right, Mr. Chairman. THE ACTING CHAIRMAN (SEN. FERNAN). Okay. So, that's sufficiently - that's clarified.
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xxxx THE ACTING CHAIRMAN (SEN. FERNAN). x x x Now, the Senate Panel will note, and we would like to invite the attention of [the] House [Panel] that we eliminated - the Senate eliminated the proviso: -That candidates who are aspiring for an elective office other than his incumbent position shall be deemed resigned forty-five (45) days before election.- It was explained to us earlier by the House Panel... THE CHAIRMAN (REP. TANJUATCO). Hindi kami nami-mersonal dito. (Laughter) THE ACTING CHAIRMAN (SEN. FERNAN). ... that the idea there was not to hit the Senators running for the presidency. (Laughter) THE CHAIRMAN (REP. TANJUATCO). Now, the intention of the House was to avoid the situation where candidates running for an office other than what they are holding, will be considered resigned much earlier than anticipated by their constituents who elected them for the period. xxxx THE CHAIRMAN (REP. TANJUATCO). The only reason why we included this was to obviate a situation where incumbents running for a position other than what they're holding and other than for president or vice president will immediately be considered, or very early during his term[,] considered resigned. SENATOR ROCO. Hindi ano eh ? because wala namang epekto iyan sa deadline. THE CHAIRMAN (REP. TANJUATCO). Mayroon. MR. FERNANDO. May deadline po, because under Section 67 [of the Omnibus Election Code], if you file your certificate of candidacy for the position other than what you're holding, you're already considered resigned and yet you cannot campaign. So with the recommendation of Congressman Tanjuatco, you can still serve during the period from January 11, if we set it January 11, until February 10 when the campaign period starts, or... THE CHAIRMAN (REP. TANJUATCO). Or even beyond if you're running for local office. MS. (sic) FERNANDO. Or beyond March 25 if you run for local. So it's beneficial, it will not adversely affect any candidate. THE CHAIRMAN (SEN. FERNAN). So in this connection then, may I just say something, 'no. Earlier this morning when Ding... when the Chairman gave this clarification, I felt that the objection has been, to a certain extent, removed so that this is the phraseology now that it was tentatively agreed: "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 election provided that the candidate who is aspiring for an elective office other than his incumbent position or the presidency or the vice presidency" ... Because of the existing law. ...shall be deemed resigned at the start of the campaign. THE CHAIRMAN (REP. TANJUATCO). Only upon the start. THE CHAIRMAN (SEN. FERNAN). Only upon the start of the campaign period. Now, I do not know how it strikes the other members of the Senate panel. SEN. ROCO. What is the phraseology of the present law? THE CHAIRMAN (SEN. FERNAN). The present, as far as the Senate version... Ah, yeah, go ahead. SEN. ROCO. Sixty-seven. THE CHAIRMAN (REP. TANJUATCO). "Any elective official, whether national or local[,] running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy."
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Iyon ang umiiral ngayon. Ngayon, in our bill, since there is an early filing of certificate of candidacy, if there is no qualification, he will be considered resigned at a very early stage. SEN. ROCO. Why don't we use those words and add provision of ano, for the local. Just retain those words para we don't invent new phraseology. Tingnan mo ang 67. Provided... Ang proviso mo will begin with the present law. THE CHAIRMAN (SEN. (sic) TANJUATCO). Hindi. Ganito ang gawin natin. SEN. ROCO. O, sige. THE CHAIRMAN (REP. TANJUATCO). Same thing, 'no[.]Any elective official, whether national or local[,] running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office only upon the start of the campaign period corresponding to the position for which he is running. (italics supplied) Republic Act No. 9006: Republic Act No. 9006, or the Fair Election Act, was silent on the rule in respect of appointive officials. Therefore, the governing law is still the one provided under the Omnibus Election Code, i.e., any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. However, the Fair Election Act expressly repealed, among others, Section 67 of Batas Pambansa Blg. 881, or the Omnibus Election Code, and rendered ineffective the proviso in RA 8436 relating to the automatic resignations of elected officials, as follows: SECTION 14. Repealing Clause. - Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly. (italics supplied) It is worthy to note that the express repeal of Section 67 of the Omnibus Election Code may be considered superfluous, as this has already been impliedly repealed (for inconsistency) by RA 8436. As previously mentioned, officials were considered ipso facto resigned from office upon filing their certificates of candidacy under the Omnibus Election Code, whereas RA 8436 considered them resigned only upon the start of the campaign period corresponding to the positions for which they are running. Section 67 may nevertheless have been expressly mentioned in the repealing clause to clarify legislative intent, because automated elections (the subject matter of RA 8436) have not yet come to pass. In any event, Republic Act No. 9006 rendered ineffective the proviso in RA 8436 relating to the automatic resignations of elected officials. In effect, the repealing clause of the Fair Election Act allows elected officials to run for another office without forfeiting the office they currently hold. This conclusion is supported by the February 7, 2001 deliberations of the Senate, when the Conference Committee 43 Report on the disagreeing provisions of House Bill No. 9000 and Senate Bill No. 1742 was considered, thus: The Presiding officer [Sen. Sotto]. May we know the effect as far as the other positions are concerned - elective officials are concerned Senator Roco. What we have done, Mr. President, is everybody who is elected can run for any other position that he may desire without forfeiting his seat. We have reversed the old election law[, and now] an elected official is not required to forfeit his seat simply because he is running for another position. (italics supplied) This is further confirmed by Section 26 of Comelec Resolution No. 3636,
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which states:
SECTION 26. Effect of Filing Certificate of Candidacy by Elective Officials. - Any elective official, whether national or local[,] who has filed a certificate of candidacy for the same or any other office shall not be considered resigned from his office. In Fari et al. v. Executive Secretary, et al., Section 14 of Republic Act No. 9006 was challenged on the ground, among others, that it was violative of the equal protection clause of the constitution. The petitioners contended that Section 14 discriminated against appointive officials. By the repeal of Section 67, an elected official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elected officials continue in public office even as they campaign for reelection or election for another elective position. On the other hand, Section 66 has been retained; thus, the 123 Election Laws Election Process and/or Proceedings
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limitation on appointive officials remains they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy. We held that there was no violation of the equal protection clause because substantial distinctions exist between the two sets of officials. Elected officials cannot, therefore, be similarly treated as appointive officials. Equal protection simply requires that all persons or things similarly situated are treated alike, both as to rights conferred and responsibilities imposed. Republic Act No. 9369: RA 9369 amended RA 8436. It provides, in relevant part: SECTION 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 15.- Official Ballot. - x x x For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. x x x x (italics supplied) As may be noticed, RA 9369 expressly provides that appointive officials are considered ipso facto resigned from their offices and must vacate the same at the start of the day of the filing of their certificates of candidacy. However, this rule is a mere restatement of Section 66 of the Omnibus Election Code, the prevailing law in this regard. On the other hand, RA 9369 is silent with respect to elected officials. The rule under the Fair Election Act (i.e., that elected officials may run for another position without forfeiting their seats) is therefore applicable. From these rules, Section 4 of COMELEC Resolution 8678 was derived. V. After a review of the legislative and case history of the law on deemed resignations of public officials, I now turn to the case at bar. At the core of the controversy is Section 4(a) of COMELEC Resolution No. 8678, which is reproduced below for easy reference: Section 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position. (italics supplied) Petitioners contend that Section 4(a) is null and void on the ground that: (a) it contravenes existing law and jurisprudence on the matter, and (b) it violates the equal protection clause of the Constitution. The ponencia upholds these contentions, extends its analysis to two other provisions of law - (a) the second proviso in the third paragraph of Section 13 of RA 9369, and (b) Section 66 of the Omnibus Election Code - and proceeds to strike down said provisions not only on equal protection grounds, but on overbreadth terms as well. Upon a considered review of the relevant laws and jurisprudence, I am constrained to strongly dissent on all points. Section 4(a) is consistent with existing laws and jurisprudence on the matter. Contrary to petitioners' assertion, Section 4(a) of COMELEC Resolution No. 8678 is a faithful reflection of the present state of the law and jurisprudence on the matter. 124 Election Laws Election Process and/or Proceedings
As the discussion on the legislative history of Section 4(a) has shown, the current state of the law on deemed resignations of public officials is as follows: Incumbent Appointive Official - Under Section 13 of RA 9369, which reiterates what is provided in Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Incumbent Elected Official - Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act, which repealed Section 67 of the Omnibus Election Code and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions for which they are running, an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In effect, an elected official may run for another position without forfeiting his seat. Clearly, Section 4(a) of COMELEC Resolution No. 8678 merely reiterates the foregoing rules on deemed resignations of incumbent public officials. Petitioners, however, hasten to point out that the same Section 13 of RA 9369 provides that any person who files his certificate of candidacy (within the advanced period fixed by COMELEC) shall only be considered as a candidate at the start of the campaign period 46 for which he filed his certificate of candidacy. Guided by the pronouncement of this Court in Lanot v. COMELEC that the advance filing of the certificate of candidacy is required only to provide ample time for the printing of official ballots, and that such advance filing 47 does not make the person a candidate except only for ballot-printing purposes, petitioners contend that the attendant consequences of candidacy including that of being deemed ipso facto resigned from one's office, when and if applicable should take effect only upon the onset of the campaign period for which the certificate of candidacy was filed, since it is only at this point in time that said 48 government official is, by law, considered to be a candidate. Thus, according to petitioners, appointive officials should be considered 49 ipso facto resigned from the office they are holding only upon the start of the campaign period. Petitioners maintain that this interpretation is the better approach, since it reconciles and harmonizes the perceived conflict between that portion of Section 13 of RA 9369, which states that "[a]ny person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy" and the subsequent proviso in the same section which provides that "any person holding a public appointive office or position x x x shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her candidacy," in a manner that is consistent with the apparent intent of the legislators to treat an appointive government official who files his certificate of candidacy as a 50 candidate only at the start of the campaign period. However, this argument fails to consider that the second proviso was precisely carved out as an exception to the general rule, in keeping with the principle that appointive officials are prohibited from engaging in any partisan political activity and taking part in any 51 election, except to vote. Specific provisions of a particular law should be harmonized not only with the other provisions of the same 52 law, but with the provisions of other existing laws as well. Interpretare et concordare leges legibus est optimus interpretandi modus. In Pagano v. Nazarro, Jr., et al., we ruled that the act of filing a certificate of candidacy while one is employed in the civil service constitutes a just cause for termination of employment for appointive officials. Section 66 of the Omnibus Election Code, in considering an appointive official ipso facto resigned, merely provides for the immediate implementation of the penalty for the prohibited act of engaging in partisan political activity. Held this Court: Petitioner relies on Section 66 of the Omnibus Election Code to exculpate her from an administrative charge. The aforementioned provision reads: Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Section 66 of the Omnibus Election Code should be read in connection with Sections 46 (b) (26) and 55, Chapters 6 and 7, Subtitle A, Title I, Book V of the Administrative Code of 1987: Section 44.-- Discipline: General Provisions: xxx xxx xxx
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(b)- The following shall be grounds for disciplinary action: xxx xxx 125 xxx
(26)-- Engaging directly or indirectly in partisan political activities by one holding a non-political office. xxx xxx xxx
Section 55.-- Political Activity. - No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Clearly, the act of filing a Certificate of Candidacy while one is employed in the civil service constitutes a just cause for termination of employment for appointive officials. Section 66 of the Omnibus Election Code, in considering an appointive official ipso facto resigned, merely provides for the immediate implementation of the penalty for the prohibited act of engaging in partisan political activity. This provision was not intended, and should not be used, as a defense against an administrative case for acts committed during government 54 service. Section 4(a) is not violative of the Equal Protection Clause of the Constitution Petitioners' equal protection challenge was sustained by the ponencia on three grounds, viz.: (1) Our disquisition in Farinas, et al. v. Executive Secretary, et al. resignations is not doctrine, but mere obiter dictum;
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on the apparent unfairness of the rules on deemed
(2) Mancuso v. Taft, a 1973 United States Court of Appeals case, struck down as unconstitutional a similar deemed resignation provision; and (3) The differential treatment of persons holding appointive offices as opposed to those holding elective offices is not germane to the purpose of the law. I shall discuss these grounds in seriatim. i. Pronouncement in Farinas, et al. v. Executive Secretary, et al. Not Obiter Dictum An obiter dictum has been defined as a remark or opinion uttered, by the way. It is a statement of the court concerning a question 58 which was not directly before it. It is language unnecessary to a decision, a ruling on an issue not raised, or an opinion of a judge 59 which does not embody the resolution or determination of the court, and is made without argument or full consideration of the point. It 60 61 is an expression of opinion by the court or judge on a collateral question not directly involved, or not necessary for the decision. 62 Accordingly, it lacks the force of an adjudication and should not ordinarily be regarded as such. Prescinding from these principles, our pronouncement on the equal protection issue in Farinas, et al. v. Executive Secretary, et al. cannot be characterized as obiter dictum.
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The ponencia bases its conclusion on the premise that the main issue in Farinas, on which the Court was intently focused, was whether 64 the repealing clause in the Fair Election Act was a constitutionally proscribed rider. Consequently, the ponencia continues, the matter 65 of the equal protection claim was only incidentally addressed, such that we unwittingly failed to ascertain with stricter scrutiny the impact of the retention of the provision on automatic resignation of persons holding appointive positions (Section 66) in the OEC, vis66 is the equal protection clause. It also asserts that the petitioners in Farinas "never posed a direct challenge to the constitutionality of 67 Section 66 of the Omnibus Election Code." With due respect, this view fails to recognize that the equal protection implications of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, were squarely raised before the Court, thus The Petitioners' Case The petitioners now come to the Court alleging in the main that Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67 of the Omnibus Election Code, is unconstitutional for being in violation of Section 26(1), Article VI of the Constitution, requiring every law to have only one subject which should be expressed in its title. According to the petitioners, the inclusion of Section 14 repealing Section 67 of the Omnibus Election Code in Rep. Act No. 9006 constitutes a proscribed rider. x x x 126 Election Laws Election Process and/or Proceedings
The petitioners also assert that Section 14 of Rep. Act No. 9006 violates the equal protection clause of the Constitution because it repeals Section 67 only of the Omnibus Election Code, leaving intact Section 66 thereof which imposes a similar limitation to appointive officials, thus: SEC. 66. Candidates holding appointive office or position. - Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. They contend that Section 14 of Rep. Act No. 9006 discriminates against appointive officials. By the repeal of Section 67, an elective official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elective officials continue in public office even as they campaign for reelection or election for another elective position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials remains - they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy. The petitioners assert that Rep. Act No. 9006 is null and void in its entirety as irregularities attended its enactment into law. x x x Finally, the petitioners maintain that Section 67 of the Omnibus Election Code is a good law; hence, should not have been repealed. x x 68 x (italics supplied) to which we responded: Section 14 of Rep. Act No. 9006 Is Not Violative of the Equal Protection Clause of the Constitution The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or [taking] part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal 69 protection clause of the Constitution is, thus, not infringed. That Farinas likewise dealt with the issue of whether Section 14 of the Fair Election Act is a constitutionally proscribed rider, is wholly peripheral to the doctrinal value of our pronouncement on the equal protection challenge. The fact remains that the Court's disquisition on that matter was prompted by an issue clearly raised before us, one that cannot, by any means, be construed as a collateral question 70 not directly involved with the case. 127 Election Laws Election Process and/or Proceedings
To be sure, an adjudication on any point within the issues presented by the case cannot be considered as obiter dictum. This rule applies to all pertinent questions, which are presented and decided in the regular course of the consideration of the case, and led up to 72 the final conclusion, and to any statement as to the matter on which the decision is predicated. For that reason, a point expressly decided does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground, or even though, by reason of other points in the case, the result reached might have been the same if the court had held, on the 73 74 particular point, otherwise than it did. As we held in Villanueva, Jr. v. Court of Appeals, et al.: A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to the disposal of the contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has been disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to every point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered, nor does a decision on one 75 proposition make statements of the court regarding other propositions dicta. (italics supplied) I respectfully submit, therefore, that our pronouncement in Farinas in respect of the equal protection issue finds cogent application in this case. Stare decisis et non quieta movere. ii. Mancuso v. Taft Has Been Overruled The ponencia begins its discussion with the claim that the right to run for public office is "inextricably linked" with two fundamental 76 freedoms - those of freedom and association. It then extensively cites Mancuso v. Taft, a decision of the First Circuit of the United States Court of Appeals promulgated on March 1973, to buttress its ruling. On this point, Mancuso asserts that "[c]andidacy is both a protected First Amendment right and a fundamental interest. Hence[,] any legislative classification that significantly burdens that interest must be subjected to strict equal protection review." It must be noted, however, that while the United States Supreme Court has held that the fundamental rights include freedom of 77 78 speech and freedom of association, it has never recognized a fundamental right to express one's political views through 79 80 candidacy. Bart v. Telford states quite categorically that [t]he First Amendment does not in terms confer a right to run for public 81 office, and this court has held that it does not do so by implication either. Newcomb v. Brennan further instructs: Although the Supreme Court has frequently invalidated state action which infringed a candidate's interest in seeking political office, it has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. Rather, it has relied on the right of association guaranteed by the First Amendment in holding that state action which denies individuals the freedom to form groups for the advancement of political ideas, as well as the freedom to campaign and vote for the candidates chosen by those groups, 82 is unconstitutional absent a strong subordinating interest. These decisions indicate that plaintiff's interest in seeking office, by itself, is 83 not entitled to constitutional protection. Moreover, since plaintiff has not alleged that by running for Congress he was advancing the political ideas of a particular set of voters, he cannot bring his action under the rubric of freedom of association which the Supreme Court has embraced. (italics supplied) As to the applicable standard of judicial scrutiny, Bullock v. Carter holds that the existence of barriers to a candidate's access to the ballot does not of itself compel close scrutiny, and that the Court has not heretofore attached such fundamental status to candidacy as 85 to invoke a rigorous standard of review. These principles attain added significance as we examine the legal status of Mancuso v. Taft. Briefly, that case involved Kenneth Mancuso, a full-time police officer and classified civil service employee of the City of Cranston, Rhode Island. He filed as a candidate for nomination as representative to the Rhode Island General Assembly on October 19, 1971, and subsequently initiated a suit challenging the constitutionality of 14.09(c) of the City Home Rule Charter which prohibits continuing in the classified service of the city after becoming a candidate for nomination or election to any public office. The district court ruled in his favor, for which reason the city officials appealed. Applying strict equal protection review, the United States Court of Appeals held that the Cranston charter provision pursues its objective (of maintaining the honesty and impartiality of its public work force) in a far too heavy-handed manner and must therefore fall under the equal protection clause, viz.: Whether the right to run for office is looked at from the point of view of individual expression or associational effectiveness, wide opportunities exist for the individual who seeks public office. x x x Consequently[,] we hold that candidacy is both a protected First Amendment right and a fundamental interest. Hence any legislative classification that significantly burdens that interest must be subjected to strict equal protection review. xxxx
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x x x It is obviously conceivable that the impartial character of the civil service would be seriously jeopardized if people in positions of authority used their discretion to forward their electoral ambitions rather than the public welfare. Similarly if a public employee pressured other fellow employees to engage in corrupt practices in return for promises of post-election reward, or if an employee invoked the power of the office he was seeking to extract special favors from his superiors, the civil service would be done irreparable injury. Conversely, members of the public, fellow-employees, or supervisors might themselves request favors from the candidate or might improperly adjust their own official behavior towards him. Even if none of these abuses actually materialize, the possibility of their occurrence might seriously erode the public's confidence in its public employees. For the reputation of impartiality is probably as crucial as the impartiality itself; the knowledge that a clerk in the assessor's office who is running for the local zoning board has access to confidential files which could provide ?pressure? points for furthering his campaign is destructive regardless of whether the clerk actually takes ad-vantage of his opportunities. For all of these reasons we find that the state indeed has a compelling interest in maintaining the honesty and impartiality of its public work force. We do not, however, consider the exclusionary measure taken by Cranston-a flat prohibition on office-seeking of all kinds by all kinds of public employees-as even reasonably necessary to satisfaction of this state interest. As Justice Marshall pointed out in Dunn v. Blumstein, ?[s]tatutes affecting constitutional rights must be drawn with "precision"-. For three sets of reasons we conclude that the Cranston charter provision pursues its objective in a far too heavy-handed manner and hence must fall under the equal protection clause. First, we think the nature of the regulation-a broad prophylactic rule-may be unnecessary to fulfillment of the city's objective. Second, even granting some sort of prophylactic rule may be required, the provision here prohibits candidacies for all types of public office, including many which would pose none of the problems at which the law is aimed. Third, the provision excludes the candidacies of all types of public employees, without any attempt to limit exclusion to those employees whose positions make them vulnerable to corruption and conflicts of interest. As to approaches less restrictive than a prophylactic rule, there exists the device of the leave of absence. Some system of leaves of absence would permit the public employee to take time off to pursue his candidacy while assuring him his old job should his candidacy be unsuccessful. Moreover, a leave of absence policy would eliminate many of the opportunities for engaging in the questionable practices that the statute is designed to prevent. While campaigning, the candidate would feel no conflict between his desire for election and his publicly entrusted discretion, nor any conflict between his efforts to persuade the public and his access to confidential documents. But instead of adopting a reasonable leave of absence policy, Cranston has chosen a provision that makes the public employee cast off the security of hard-won public employment should he desire to compete for elected office. The city might also promote its interest in the integrity of the civil service by enforcing, through dismissal, discipline, or criminal prosecution, rules or statutes that treat conflict of interests, bribery, or other forms of official corruption. By thus attacking the problem directly, instead of using a broad prophylactic rule, the city could pursue its objective without unduly burdening the First Amendment rights of its employees and the voting rights of its citizens. x x x (citations omitted) Three months after Mancuso, or on June 1973, the United States Supreme Court decided United States Civil Service Commission, et 86 87 al. v. National Association of Letter Carriers AFL-CIO, et al. and Broadrick, et al. v. State of Oklahoma, et al. Letter Carriers was a declaratory judgment action brought by the National Association of Letter Carriers, certain local Democratic and Republican political committees, and six individual federal employees, who asserted on behalf of themselves and all federal employees, that Section 9(a) of the Hatch Act, prohibiting federal employees from taking an active part in political management or in political 88 campaigns, was unconstitutional on its face. A divided three-judge court held the section unconstitutional, but this ruling was reversed by the United States Supreme Court in this wise: Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls. But, as the Court held in Pickering v. Board of Education, the government has an interest in regulating the conduct and the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees. Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act. It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the pro-grams of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is essential that federal employees, for example, not take formal positions in political 129 Election Laws Election Process and/or Proceedings
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parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government. There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent. Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power-or the party out of power, for that matter-using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns. A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pres-sure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that the prohibitions against active participation in partisan political management and partisan political campaigns constitute the most significant safeguards against coercion .... Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it. Neither the right to associate nor the right to participate in political activities is absolute in any event. xxxx As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. (italics supplied) Broadrick, on the other hand, was a class action brought by certain Oklahoma state employees seeking a declaration that a state statute regulating political activity by state employees was invalid. Section 818 of Oklahoma's Merit System of Personnel Administration Act restricts the political activities of the state's classified civil servants in much the same manner that the Hatch Act proscribes partisan 91 political activities of federal employees. It states, among others, that - [n]o employee in the classified service shall be a candidate for nomination or election to any paid public officeViolation of Section 18 results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility. The Supreme Court ruled that Section 18 is constitutional, thus: Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from political extortion. Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone else. We have held today that the Hatch Act is not impermissibly vague. We have little doubt that s 818 is similarly not so vague that men of 93 common intelligence must necessarily guess at its meaning. Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out -explicit standards' for those who must apply it. In the plainest language, it prohibits any state classified employee from being an officer or member of a partisan political club or a candidate for any paid public office. It forbids solicitation of contributions for any political organization, candidacy or other political purpose and taking part in the management or affairs of any political party or in any political campaign. Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818 as partisan, or take part in, or affairs of political parties. But what was said in Letter Carriers, is applicable here: there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.' x x x xxxx
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[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here. xxxx The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x x x x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effectat best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied. Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate. x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto because some persons arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied) Broadrick, likewise, held that the statute did not violate the equal protection clause by singling out classified service employees for restrictions on political expression, while leaving unclassified personnel free from such. The court reasoned that the state legislature must have some leeway in determining which of its employment positions required these restrictions. Accordingly, Letter Carriers and Broadrick teach us that: (i) the state has interests as employer in regulating the speech of its employees that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if the employees expression interferes with maintenance of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining which positions are to 94 be covered by any statutory restrictions. It is against this factual backdrop that Magill v. Lynch, a 1977 decision of the First Circuit of the United States Court of Appeals, gains prominence. Noteworthy, this case concerned a similar law, and was decided by the same court that decided Mancuso. Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket's "Little Hatch Act" prohibits city employees 96 from engaging in a broad range of political activities. Becoming a candidate for any city office is specifically proscribed, the violation being punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be infringed upon only if less restrictive alternatives were not available, was a position which was no longer viable, since the Supreme Court (finding that the government's interest in regulating both the conduct and speech of its employees differed 131 Election Laws Election Process and/or Proceedings
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significantly from its interest in regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a "balancing" test to determine whether limits on political activity by public employees substantially served government 97 interests which were "important" enough to outweigh the employees- First Amendment rights. It must be noted that the Court of Appeals ruled in this wise even though the election in Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to help political friends and hurt political foes. Ruled the court: The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's "Little Hatch Act" against constitutional attack, limiting its holding to Oklaho-ma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis. xxxx What we are obligated to do in this case, as the district court recognized, is to apply the Court's interest balancing approach to the kind of nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our view that political candidacy was a fundamental interest which could be trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of its employees differs significantly from its interest in regulating those of the citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of the Congress. We 98 cannot be more precise than the Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process". It appears that the government may place limits on campaigning by public employees if the limits substantially serve government interests that are "important" enough to outweigh the employees' First Amendment rights. x x x (italics supplied) Upholding the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as follows: In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party. The district court discounted this interest, reasoning- that candidates in a local election would not likely be committed to a state or national platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily identified. A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing customs, known party affiliation and support were highly significant factors in Pawtucket elections. The charter's authors might reasonably have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence voters or their coworkers improperly; but a more real danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable, especially because the political views of individual employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated use of city employees in support of the incumbent party's 132 Election Laws Election Process and/or Proceedings
candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots. The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public servants for political ends that a legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways. In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his superior or running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are considerable. (citations omitted) The court, however, remanded the case to the district court for further proceedings in respect of the petitioners overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be taken lightly, much less to be taken in the dark," the court held: The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction between speech and conduct. The second difficulty is not so easily disposed of. Broadrick found no substantial over-breadth in a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a law substantially over-broad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic committee. The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted) Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, which was heavily relied upon by the 99 ponencia, has effectively been overruled. As it is no longer good law, the ponencia's exhortation that we should follow Mancuso [since] the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] is misplaced and unwarranted. Thus, in the instant case, I respectfully submit that Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, is not violative of the equal protection clause. It is crystal clear that these deemed resignation provisions substantially serve governmental 133 Election Laws Election Process and/or Proceedings
interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party, (ii) avoiding the appearance of "political justice" as to policy, (iii) avoiding the danger of a powerful political machine, and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity), which are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office. Instead of the overruled case of Mancuso, we should take heed of the ruling in Adams v. Supreme Court of Pennsylvania,
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viz.:
The relevant authorities provide that federal and state officials may regulate the First Amendment rights of various government employees to an extent greater than is appropriate for regular citizens. The issue is not whether a "compelling state interest" supports the relevant law. Rather, the proper test involves a balance between the individual's First Amendment rights and the interests the 101 102 government has at stake. In Morial v. Judicial Commission of the State of Louisiana, the Court of Appeals for the Fifth Circuit held that this principle extends to state judicial officers. Furthermore, the precedent provided the rationale for resolving Adams's argument. It must be conceded that "resign to run" laws place substantial burdens on a potential candidate's right to seek office. Yet the "chilling" effect of these provisions should not be exaggerated, since they do not reach a wide variety of other activities protected by the First Amendment guarantee of free speech. The statutes, moreover, serve important state interests. For example, they help prevent the abuse of judicial office by candidates and former candidates and they safeguard the appearances of propriety. Finally, as the Morial court noted, the less-restrictive alternative of a forced leave of absence would not be sufficient to guard the state's interests, because the danger of corruption, real or perceived, would persist with regard to defeated candidates on their return to the bench. W eighing these considerations, it must be concluded that the Morial analysis is compelling and the "resign to run" law is constitutional. (italics supplied) iii. Classification Germane to the Purposes of the Law Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and 103 104 responsibilities imposed. It does not require the universal application of the laws on all persons or things without distinction. What 105 the clause simply requires is equality among equals as determined according to a valid classification. By classification is meant the 106 grouping of persons or things similar to each other in certain particulars and different from all others in these same particulars. The test for a valid classification is reasonableness,
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(1) The classification rests on substantial distinctions; (2) It is germane to the purposes of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.
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In the main, the ponencia admits the presence of the first, third and fourth requisites. It, however, holds that the differential treatment of persons holding appointive offices as opposed to those holding elective offices is not germane to the purpose of the law. I respectfully disagree. Preliminarily, the equal protection clause is satisfied so long as there is a plausible policy reason for the classification. The statute is accorded a strong presumption of validity, and the challenger must bear the burden of showing that the act creates a classification that 110 is "palpably arbitrary or capricious;" otherwise, the legislative determination as to what is a sufficient distinction to warrant the 111 classification will not be overthrown. The challenger must refute all possible rational bases for the differing treatment, whether or not 112 the Legislature cited those bases as reasons for the enactment. The case law is to uphold the statute if we can conceive of any 113 reason to justify the classification; that the constitutionality of the law must be sustained even if the reasonableness of the 114 classification is "fairly debatable." The ponencia readily acknowledges the rationale behind the deemed resignation provision. It holds: The obvious reason for the challenged provision is to prevent the use of a governmental position to promote one's candidacy, or to even wield a dangerous or coercive influence on the electorate. The measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by eliminating the danger that the discharge of official duty would be motivated by political considerations rather than the welfare of the public. The restriction is also justified by the proposition that the entry of civil servants to the electoral 134 Election Laws Election Process and/or Proceedings
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arena, while still in office, could result in the neglect or inefficiency in the performance of duty because they would be attending to their 115 campaign rather than to their office work. (citation omitted) Nevertheless, the ponencia faults' Section 13 of Republic Act No. 9369 and Section 66 of the Omnibus Election Code because whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. The ponencia explains: For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the VicePresident who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his 116 position during the entire election period and can still use the resources of his office to support his campaign. This reasoning, however, fails to appreciate the well-settled rule that, by itself, the fact that a legislative classification is underinclusive 117 will not render it unconstitutionally arbitrary or invidious. The Legislature is free to choose to remedy only part of a problem, as it may 118 'select one phase of a field and apply a remedy there, neglecting the others. Stated differently, there is no constitutional requirement 119 that regulation must reach each and every class to which it might be applied; that the Legislature must be held rigidly to the choice of 120 regulating all or none. The state is free to regulate one step at a time, recognizing degrees of harm and addressing itself to phases of 121 a problem which presently seem most acute to the legislative mind. For when the Legislature creates a statute, it is not required to 122 123 solve all the evils of a particular wrong in one fell swoop. New Jersey State League of Municipalities, et al. v. State of New Jersey succinctly states the principle thus: It is axiomatic that in attempting to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may 124 proceed "one step at a time." Thus, "remedial legislation need not be -all-or-nothing,"[;] ... the Legislature can decide that to start 125 somewhere is better than to start nowhere. Therefore, it is not necessarily fatal that a law is underinclusive by failing to include some 126 who share characteristics of the included class, so long as there is a rational justification for excluding part of the affected class. The Legislature in addressing an issue must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded. As long as the bounds of reasonable choice are not exceeded, the courts must defer to the legislative 127 judgment. We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the 128 class. We must determine whether there is a reasonable basis for the Legislature's choice and not substitute our own judgment for 129 that of the Legislature. Correspondingly, it is not sufficient grounds for invalidation that we may find that the statute's distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for the 130 differing treatment. In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions- I submit that there is. An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the 132 choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will of the people. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign will. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code are not overbroad. Apart from sustaining petitioners- equal protection challenge, the ponencia took an unwarranted step further and struck down Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code for being unconstitutionally overbroad in two respects, viz: (1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of position being held by the employee seeking an elective post and the degree of influence that may be 133 attendant thereto; and Election Laws Election Process and/or Proceedings
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(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the type of office being sought, whether it be partisan or nonpartisan in character, or in the national, 134 municipal or barangay level. For reasons discussed below, I respectfully submit that Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code are not unconstitutionally overbroad and must therefore remain fully operative. i. Limitation on Candidacy Regardless of Incumbent Appointive Official's Position, is Valid The ponencia declares that the assailed provisions are overly broad because they are made to apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the degree of influence that may be attendant thereto. Apparently, the ponencia assumes that the evils sought to be prevented by the assailed provisions are made possible only when the incumbent appointive official running for elective office holds a position of influence. For this reason, it would limit the application of the challenged restriction solely to incumbent appointive officials in positions of influence. Regrettably, the ponencia manifestly fails to take into account a different kind of possible threat to the government created by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse perpetuated by a "powerful political machine" that has amassed "the scattered powers of government workers" so as to give itself, and its incumbent workers an "unbreakable grasp 135 on the reins of power." Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerable even innocuous particularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of a reigning political party to advance its 136 own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming from various levels of the bureaucracy. I respectfully submit that the avoidance of such a "politically active public work force" which could give a political machine an 138 "unbreakable grasp on the reins of power" is reason enough to impose a restriction on the candidacies of all appointive public officials without further distinction as to the type of positions being held by such employees or the degree of influence that may be attendant thereto. ii. Limitation on Candidacy Regardless of Type of Office Sought, is Valid The ponencia also maintains that the assailed provisions are overly broad because they are made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the type of elective office being sought, whether it be partisan or nonpartisan 139 in character, or in the national, municipal or barangay level. Adhering to the view that the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those 140 involved in an office removed from regular party politics [so as] to warrant distinctive treatment in a statute similar to the ones being assailed, the ponencia would have the challenged restriction on candidacy apply only in situations where the elective office sought is partisan in character. To the extent, therefore, that it supposedly operates to preclude even candidacies for nonpartisan elective offices, the ponencia pronounces the challenged restriction as overbroad. Again, I respectfully disagree.- A careful review, however, of the assailed provisions and related laws on the matter will readily show that the perceived overbreadth is more apparent than real. A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of candidacy and nomination of official candidates of registered political parties, in connection with the May 10, 2010 National and Local 141 Elections. Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this score alone, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable.
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Similarly, a fair reading of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other related laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices. The only elections which are relevant to the issue at bar are the elections for barangay offices, since these are the only elections in this 142 country which involve nonpartisan public offices. In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangay elections should be governed by special rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said provision states: Section 39. Certificate of Candidacy. - No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate. xxxx Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office. Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus Election Code and Section 13 of RA 9369 must again fail. In any event, assuming, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding proviso in Section 13 of RA 9369 are general rules intended to apply also to elections for nonpartisan public offices, it is respectfully submitted that the overbreadth challenge mounted against said provisions would be just as futile. In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur. As previously discussed, the ruling case law in the United States tells us that the government has an interest in regulating the conduct and speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of the citizenry in 143 general. Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the overbreadth must not only be real, but substantial as well, judged in relation to 144 the statute's plainly legitimate sweep. In operational terms, measuring the substantiality of a statute's overbreadth would entail, among other things, a rough balancing of the 145 number of valid applications compared to the number of potentially invalid applications. In this regard, some sensitivity to reality is 146 needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter 147 of degree. Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e., the number of elections that were insulated from party rivalry but were nevertheless closed to appointive employees) that may in all probability result from the 148 enforcement of the statute. The record of the case at bar, however, does not permit us to find overbreadth. Borrowing from the words of Magill, indeed, such a step 149 is not to be taken lightly, much less to be taken in the dark, especially since an overbreadth finding in this case would effectively 150 prohibit the state from enforcing an otherwise valid measure against conduct that is admittedly within its power to proscribe. At this juncture, it is well to note that the application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of a First Amendment right is manifestly strong medicine that must be employed by the Court sparingly, 151 and only as a last resort. This is because any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression, thereby increasing the possible harm to society that may result from permitting some unprotected speech or conduct to go unpunished. Thus, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possible harm to society in permitting some unprotected speech or conduct to go unpunished is outweighed by the possibility that the protected speech of others 152 may be muted, and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes. Also, facial 137 Election Laws Election Process and/or Proceedings
overbreadth has not been invoked where a limiting construction could be placed on the challenged statute, and where the court could 153 conceive of readily apparent constructions which would cure, or at least substantially reduce, the alleged overbreadth of the statute. I respectfully submit that the probable harm to society in permitting incumbent appointive officials to remain in office even as they actively pursue elective posts far outweighs the less likely evil of having arguably protected candidacies curtailed because of the possible inhibitory effect of a potentially overly broad statute. Thus, while the challenged provisions may deter protected conduct to some unknown extent, that effect at best a prediction cannot, with confidence, justify invalidating these statutes in toto and so prohibit 154 the State from enforcing them against conduct that is concededly within its power and interest to proscribe. Where the historic or likely frequency of a statute's conceivably impermissible applications is relatively low, it may be more appropriate to guard against the statute's conceivably impermissible applications through case-by-case adjudication rather than through facial 155 invalidation. A last word The importance of the coming May 2010 national and local elections cannot be overstated. The country cannot afford an election which will be perceived as neither free nor fair. It is the bounden duty of this Court to protect the integrity of our electoral process from any suspicion of partisan bias. The people should see judges and justices wearing judicial and not political robes. A court that cannot elevate itself above politics cannot protect the rule of law. Accordingly, I vote to DISMISS the petition. REYNATO S. PUNO Chief Justice DISSENTING OPINION CARPIO, J.: I join Chief Justice Reynato S. Puno in his dissent. The law is plain, clear and unequivocal that appointive public officialsare deemed automatically resigned from office upon filing their certificates of candidacy.- Paragraph 3, Section 11 of Republic Act No. 8436, as amended by Republic Act No. 9369, provides: 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 that 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 facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. (Emphasis supplied) The final proviso in paragraph 3, Section 11 of RA No. 8436, as amended, is a mere reiteration of Section 66 of the Omnibus Election Code, which provides: Section 66.- Candidates holding appointive office or positions. - Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso factoresigned from his office upon the filing of his certificate of candidacy. Congress inserted the final proviso to clarify that Section 66 of the Omnibus Election Code still applies despite the second sentence in the paragraph 3 of Section 11, which states that a person who files a certificate of candidacy is considered a candidate only upon the start of the campaign period. The final proviso in paragraph 3, Section 11 of RA No. 8436, as amended, and Section 66 of the Omnibus Election Code are constitutional. First.- Appointive public officials arecivil service officers or employees. Section 2(1), Article IX-B of the 1987 Constitution provides: The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. 138 Election Laws Election Process and/or Proceedings
The Constitution expressly prohibits civil service officers and employees from engaging in any electioneering or partisan political activity. Section 2(4), Article IX-B of the 1987 Constitution provides: No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political activity.(Emphasis supplied) Since the Constitution also provides that suffrage may be exercised by all citizens, Section 2(4) of Article IX-B does not prohibit civil 2 service officers and employees from voting. Thus, civil service officers and employees cannot engage in any electioneering or partisan political activity except to vote.This is clear from the second paragraph of Section 3(3), Article XVI of the 1987 Constitution, which provides: No member of the military shall engage directly or indirectly in any partisan political activity, except to vote.(Emphasis supplied) The Civil Service laws implement this constitutional ban by stating that civil service officers and employees cannot engage in any partisan political activity except to vote. Section 55, Chapter 7, Title I, Book V of the Administrative Code of 1987 provides: Section 55.- Political Activity. - No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to votenor shall he use his official authority or influence to coerce the political activity of any other person or body. xxx. (Emphasis supplied) Likewise, the Omnibus Election Code penalizes civil service officers and employees who engage in any partisan political activity except to vote. Section 261 (i) of the Omnibus Election Code states:Section 261.- Prohibited Acts. - The following shall be guilty of an election offense:xxxx (i)- Intervention of public officers and employees. Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to voteor to preserve public order, if he is a peace officer. (Emphasis supplied) Filing a certificate of candidacy is in itself a partisan political activity.- It is a public announcement that one is running for elective public office. It is a necessary act for election to public office, and promotes one's candidacy to public office. Running for public office, or exercising the right to be voted for, is different from, and not part of, the right to vote. The only partisan political activity allowed to civil service officers and employees is to vote. Filing a certificate of candidacy is a partisan political activity not allowed to civil service officers and employees. An appointive public official who files a certificate of candidacy violates the express constitutional ban on civil service officers from engaging in any partisan political activity except to vote. Thus, the law may validly provide that an appointive public official is automatically deemed resigned upon filing a certificate of candidacy. This merely implements the constitutional ban on civil service officers and employees from engaging in any partisan political activity except to vote. Second. There is a substantial distinction between an appointive public official and an elective public official for purposes of considering only appointive public officials as deemed resigned upon the filing of certificate of candidacy.- Appointive public officials are chosen by the appointing power and not elected by the people. They do not have to renew their mandate periodically unlike elective public officials. They also do not have term limits unlike elective public officials. Most important of all, the constitutional ban on civil service officers and employees from engaging in any partisan political activity applies to appointive public officials but not to elective public officials. By the very nature of their office, elective public officials engage in partisan political activities almost all year round, even outside of the campaign period. , because of all these substantial distinctions, there is no violation of the equal protection clause when the law mandates that only appointive public officials, and not elective public officials, are deemed automatically resigned upon the filing of certificate of candidacy. Third.- The final provisoon the automatic resignation of appointive public officials in paragraph 3, Section 11 of RA No. 8436, as amended by RA No. 9369, qualifies the second sentencein paragraph 3 that, 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; xxx. -In short, the final proviso clearly excludes appointive public officials from the operation of the second sentence. This is the plain, clear and unequivocal language of the law.
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Fourth. The automatic resignation of appointive public officials upon the filing of certificate of candidacy has been in the statute books for more than 100 years. The earliest law on the matter is Act No. 1582 or the first Election Law enacted by the Philippine Commission 4 in 1907. Section 29 of Act No. 1582 provides: Section 29. Penalties upon officers. --- xxx. No public officer shall offer himself as a candidate for election, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding,and no judge of the Court of First Instance xxx. (Emphasis supplied) Even this law allowed elective public officers who sought "reelection" to hold on to their office, distinguishing them from appointive public officials who were not allowed to hold on to their office if they sought election. Fifth.- One can just imagine the anomaly, conflict and tension that will arise if the Provincial Director of the Philippine National Police, or the Philippine Army Commander whose troops are stationed within the province, will file a certificate of candidacy for governor of the province on 1 December 2009 for the 10 May- 2010 elections. "If the PNP Provincial Director or Army Commander is not considered automatically resigned from office, he has until the start of the campaign period on 26 March 2010 to remain in his post, in command of hundreds, if not thousands, of fully-armed personnel." This is a disaster waiting to happen. In sum, appointive public officials can validly be deemed automatically resigned upon the filing of certificate of candidacy, as provided in the final proviso of paragraph 3, Section 11 of RA No. 8436, as amended by RA No. 9369, as well as in Section 66 of the Omnibus Election Code.- These provisions merely implement the constitutional ban in Section 2(4) of Article IX-B, and Section 3(3) of Article XVI, of the 1987 Constitution. Accordingly, I vote to DISMISSthe petition. ANTONIO T. CARPIO Associate Justice DISSENTING OPINION CARPIO MORALES, J.: I dissent from the majority opinion which declares as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act No. 9369 (January 23, 2007) and Section 66 of Batas Pambansa Blg. 881 (December 3, 1985) or the Omnibus Election Code, respectively quoted as follows: SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows: Sec. 15. x x x x x x Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy.- (underscoring supplied) xxxx ----SEC. 66. Candidates holding appointive office or positions. - Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. (underscoring supplied) What petitioners assail, however, is paragraph (a) of Section 4 of Comelec Resolution No. 8678 (October 6, 2009) which mirrors the above-quoted provisions. Section 4 thereof provides: SEC. 4.- Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. 140 Election Laws Election Process and/or Proceedings
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(b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position. (underscoring supplied) As presented by the ponencia, a parallel provision on persons holding elective office or position existed in Section 67 of the Omnibus Election Code (December 3, 1985) until it was repealed by Republic Act No. 9006 (February 12, 2001) or the Fair Election Act.- Prior to the repeal, the provision was amplified by the first proviso of the third paragraph of Section 11 of Republic Act No. 8436 (December 22, 1997) otherwise known as the Election Automation Law until said proviso was rendered ineffective in 2001 by the Fair Election Act and was totally abandoned in 2007 by the amendatory law of Republic Act No. 9369. In granting the petition, the ponencia eliminates the ipso facto resignation from public office by an appointive public official upon the filing of the certificate of candidacy, thereby removing the distinction between one holding an appointive position and one holding an elective position. The ponencia revisits Fariv. The Executive Secretary, notwithstanding its submission that the discussion therein on the equal protection clause was obiter dictum, "albeit the issue was squarely raised therein. " The ponencia adds that Fari/i> focused on the validity of the repeal of Section 67 (on elective positions) of the Omnibus Election Code and never posed a direct challenge to the constitutionality of retaining Section 66 (on appointive positions) thereof. En passant, I observe that neither is the constitutionality of Section 13 of Republic Act No. 9369 and Section 66 of Batas Pambansa Blg. 881 challenged by petitioners in the present case. What petitioners assail is, it bears repeating, Section 4(a) of Comelec Resolution No. 8678. In Fari/i>, the Court ruled: The petitioners contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal 3 protection clause of the Constitution is, thus, not infringed. (italics in the original; underscoring supplied) Fari/i> pointed out at least three material and substantial distinctions that set apart elective officials from appointive officials (i.e., mandate of the electorate, removal from office only upon stringent conditions, no prohibition against partisan political activity). The 141 Election Laws Election Process and/or Proceedings
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ponencia does not dispute the presence of this set of distinctions as one of the grounds for a classification to be valid and non-violative of the equal protection clause. The ponencia does not correlate the impact of the prohibition against partisan political activity on the provisions on ipso facto 4 resignation. Section 55, Chapter 8, Title I, Subsection A, Book V of the Administrative Code of 1987 reads: Sec. 55. Political Activity. No officer or employee in the Civil Service including members of the Armed Forces, shall engage, directly or indirectly, in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. (underscoring supplied) To allow appointive officials to hang on to their respective posts after filing their certificate of candidacy will open the floodgates to countless charges of violation of the prohibition on partisan political activity. The filing of the certificate of candidacy is already deemed as a partisan political activity, which also explains why the appointive official is considered ipso facto resigned from public office upon 5 the date of the filing of the certificate of candidacy, and not the date of the start of the campaign period. Pagano v. Nazarro, Jr. teaches: Clearly, the act of filing a Certificate of Candidacy while one is employed in the civil service constitutes a just cause for termination of employment for appointive officials. Section 66 of the Omnibus Election Code, in considering an appointive official ipso facto resigned, merely provides for the immediate implementation of the penalty for the prohibited act of engaging in partisan political activity. This provision was not intended, and should not be used, as a defense against an administrative case for acts committed during government 6 service. (emphasis and underscoring supplied) The Court cannot look into the wisdom of the classification, as it runs the risk of either unduly magnifying the minutiae or viewing the whole picture with a myopic lens. The Court cannot strike down as unconstitutional the above-mentioned provisions without 7 crossing the path of said Section 55 of the Administrative Code, among other things, on political activity or without rebutting the apolitical nature of an appointive office. Section 55, however, is, as earlier stated, neither challenged in the present case, nor are Section 13 of Republic Act No. 9369 and Section 66 of the Omnibus Election Code. While the ponencia admits that there are substantial distinctions, it avers that the requisite that the classification be germane to the purposes of the law is absent. In discussing the underlying objectives of the law, the majority opinion identifies the evils sought to be prevented by the law and opines that these evils are present in both elective and appointive public offices. Ultimately, the ponencia kills the law and spares the evils. It raises arguments that lend support more to a parity of application of the ipso facto resignation than a parity of non-application of the ipso facto resignation.1avvphil In explaining Section 2 (4) of Article IX-B of the Constitution, an eminent constitutionalist elucidated that the general rule is intended to 9 keep the Civil Service free of the deleterious effects of political partisanship. Political partisanship, meanwhile, is the inevitable essence of a political office, elective positions included. Unfortunately, the ponencia does not refute the apolitical nature of an appointive office. To the issues surrounding the policy of reserving political activities to political officers, the remedy is legislation. The ponencia proceeds to discuss the right to run for public office in relation to the freedom of expression and of association. It cites 10 Mancuso v. Taft, a case decided by the United States Court of Appeals, First Circuit, involving a city home rule charter in Rhode 11 Island, to buttress its conclusion and to persuade that this jurisdiction too should follow suit. In U.S. jurisdiction, however, the Hatch Act of 1939 which imposes limitations on the political activities of federal government employees is still considered good law. It prohibits government employees from running for or holding public office or participating in the campaign management for another. "On two occasions, the Hatch Act has been brought to the US Supreme Court, both times based on First Amendment arguments that the prohibitions were unduly restrictive on the private constitutional liberties of government 13 employees." The statute was upheld in both cases, United Public Workers of America v. Mitchell, and United States Civil Service 14 Commission v National Association of Letter Carriers. The Hatch Act has since been applied or copied in most states with respect to state or local government employees. While the spirit of the ruling in Mitchell has been questioned or overturned by inferior courts in cases assailing similar state laws or city charters (such as Mancuso), Mitchell has not, however, been overturned by the U.S. Supreme Court. An inferior court can never erode a Supreme Court decision. 142 Election Laws Election Process and/or Proceedings
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Finally, a public employee holding appointive office or position, by accepting a non-political government appointment, binds himself to the terms and conditions of employment fixed by law. In one case, it was held that in government employment, "it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment." And 15 this is effected through the statutes or administrative circulars, rules, and regulations[,] part of which is the setting of standards for 16 allowable limitations in the exercise of the rights of free expression and of assembly. WHEREFORE, I vote to DISMISS the petition. CONCHITA CARPIO MORALES Associate Justice
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189698 February 22, 2010
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. DISSENTING OPINION NACHURA, J.: I vote to maintain this Courts December 1, 2009 Decision. The automatic resignation rule on appointive government officials and employees running for elective posts is, to my mind, unconstitutional. I therefore respectfully register my dissent to the resolution of the majority granting the motion for reconsideration. I earnestly believe that by this resolution, the majority refused to rectify an unjust rule, leaving in favor of a discriminatory state regulation and disregarding the primacy of the peoples fundamental rights to the equal protection of the laws. Let it be recalled that, on December 1, 2009, the Court rendered its Decision granting the petition and declaring as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act (R.A.) No. 9369, Section 66 of the Omnibus Election Code (OEC) 1 and Section 4(a) of Commission on Elections (COMELEC) Resolution No. 8678. Claiming to have legal interest in the matter in litigation, Senator Manuel A. Roxas filed, on December 14, 2009, his Omnibus Motion for Leave of Court to: (a) Intervene in the Instant Case; (b) Admit Attached Motion for Reconsideration; and (c) If Necessary, Set the 2 Instant Case for Oral Arguments. On the same date, respondent COMELEC, through its Law Department, moved for the reconsideration of the aforesaid December 1, 3 2009 Decision. Expressing a similar desire, Franklin M. Drilon, a former senator and a senatorial candidate in the 2010 elections, filed, on December 4 17, 2009, his Motion for Leave to Intervene and to Admit the Attached Motion for Reconsideration in Intervention. On December 28, 2009, the Integrated Bar of the Philippines (IBP), Cebu City Chapter, also filed its Motion for Leave to Intervene and 6 Motion for Reconsideration in Intervention. In a related development, on January 8, 2010, the Office of the Solicitor General (OSG), which initially represented the COMELEC in the proceedings herein, this time disagreed with the latter, and, instead of moving for the reconsideration of the December 1, 2009 7 Decision, moved for clarification of the effect of our declaration of unconstitutionality. Subsequently, Tom V. Apacible, a congressional candidate in the 2010 elections, filed, on January 11, 2010, his Motion to Intervene 8 and for the Reconsideration of the Decision dated December 1, 2009. In its January 12, 2010 Resolution, the Court required petitioners to comment on the aforesaid motions. On February 1, 2010, petitioners filed their consolidated comment on the motions. Parenthetically, petitioner Quinto admitted that he did not pursue his plan to run for an elective office. Petitioner Tolentino, on the other hand, disclosed that he filed his certificate of candidacy but that he had recently resigned from his post in the executive department. These developments could very well be viewed by the Court as having rendered this case moot and academic. However, I refuse to proceed to such a conclusion, considering that the issues, viewed in relation to other appointive civil servants running for elective office, remain ubiquitously present. Thus, the issues in the instant case could fall within the classification of controversies that are capable of repetition yet evading review. I then implore that the Court rule on the motions. 144 Election Laws Election Process and/or Proceedings
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The intervention The motions for intervention should be denied. Section 2, Rule 19 of the Rules of Court explicitly states that motions to intervene may 11 be filed at any time "before the rendition of judgment." Obviously, as this Court already rendered judgment on December 1, 2009, 12 intervention may no longer be allowed. The movants, Roxas, Drilon, IBP-Cebu City Chapter, and Apacible, cannot claim to have been unaware of the pendency of this much publicized case. They should have intervened prior to the rendition of this Courts Decision on 13 December 1, 2009. To allow their intervention at this juncture is unwarranted and highly irregular. While the Court has the power to suspend the application of procedural rules, I find no compelling reason to excuse movants procedural lapse and allow their much belated intervention. Further, a perusal of their pleadings-in-intervention reveals that they merely restated the points and arguments in the earlier dissenting opinions of Chief Justice Puno and Senior Associate Justices Carpio and Carpio Morales. These very same points, incidentally, also constitute the gravamen of the motion for reconsideration filed by respondent COMELEC. Thus, even as the Court should deny the motions for intervention, it is necessary to, pass upon the issues raised therein, because they were the same issues raised in respondent COMELECs motion for reconsideration. The COMELECs motion for reconsideration Interestingly, in its motion for reconsideration, the COMELEC does not raise a matter other than those already considered and discussed by the Court in the assailed decision. As aforesaid, the COMELEC merely echoed the arguments of the dissenters. I remain unpersuaded. I wish to reiterate the Courts earlier declaration that the second proviso in the third paragraph of Section 13 of R.A. No. 9369, Section 66 of the OEC and Section 4(a) of COMELEC Resolution No. 8678 are unconstitutional for being violative of the equal protection clause and for being overbroad. In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their certificates of candidacy (CoCs), but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between the two classes does not justify such disparate treatment. Constitutional law jurisprudence requires that the classification must and should be germane to the purposes of the law. As clearly explained in the assailed decision, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. Indeed, a candidate, whether holding an appointive or an elective office, may use his position to promote his candidacy or to wield a dangerous or coercive influence on the electorate. Under the same scenario, he may also, in the discharge of his official duties, be swayed by political considerations. Likewise, he may neglect his or her official duties, as he will predictably prioritize his campaign. Chief Justice Puno, in his dissent to the assailed decision, even acknowledges that the "danger of systemic abuse" remains present whether the involved candidate holds an appointive or an elective office, thus Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerableeven innocuousparticularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of a reigning political party to advance its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming from various levels of the 14 bureaucracy. To repeat for emphasis, classifying candidates, whether they hold appointive or elective positions, and treating them differently by considering the first as ipso facto resigned while the second as not, is not germane to the purposes of the law, because, as clearly shown, the measure is not reasonably necessary to, nor does it necessarily promote, the fulfillment of the state interest sought to be served by the statute. In fact, it may not be amiss to state that, more often than not, the elective officials, not the appointive ones, exert more coercive influence on the electorate, with the greater tendency to misuse the powers of their office. This is illustrated by, among others, the proliferation of "private armies" especially in the provinces. It is common knowledge that "private armies" are backed or even formed by elective officials precisely for the latter to ensure that the electorate will not oppose them, be cowed to submit to their dictates and vote for them. To impose a prohibitive measure intended to curb this evil of wielding undue influence on the electorate and apply the prohibition only on appointive officials is not only downright ineffectual, but is also, as shown in the assailed decision, offensive to the equal protection clause. Furthermore, as the Court explained in the assailed decision, this ipso facto resignation rule is overbroad. It covers all civil servants holding appointive posts without distinction, regardless of whether they occupy positions of influence in government or not. Certainly, a utility worker, a messenger, a chauffeur, or an industrial worker in the government service cannot exert the same influence as that of a Cabinet member, an undersecretary or a bureau head. Parenthetically, it is also unimaginable how an appointive utility worker, compared to a governor or a mayor, can form his own "private army" to wield undue influence on the electorate. It is unreasonable and excessive, therefore, to impose a blanket prohibitionone intended to discourage civil servants from using their positions to influence 145 Election Laws Election Process and/or Proceedings
the voteson all civil servants without considering the nature of their positions. Let it be noted, that, despite their employment in the government, civil servants remain citizens of the country, entitled to enjoy the civil and political rights granted to them in a democracy, including the right to aspire for elective public office. In addition, this general provision on automatic resignation is directed to the activity of seeking any and all public elective offices, whether partisan or nonpartisan in character, whether in the national, municipal or barangay level. No compelling state interest has been shown to justify such a broad, encompassing and sweeping application of the law. It may also be pointed out that this automatic resignation rule has no pretense to be the exclusive and only available remedy to curb the uncontrolled exercise of undue influence and the feared "danger of systemic abuse." As we have explained in the assailed decision, our Constitution and our body of laws are replete with provisions that directly address these evils. We reiterate our earlier pronouncement that specific evils require specific remedies, not overly broad measures that unduly restrict guaranteed freedoms. It should be stressed that when the Court struck down (in the earlier decision) the assailed provisions, the Court did not act in a manner inconsistent with Section 2(4) of Article IX-B of the Constitution, which reads: Sec. 2. x x x. (4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political activity. or with Section 5(3), Article XVI of the Constitution, which reads: Sec. 5. x x x. (3) Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics. No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote. Neither does the Courts earlier ruling infringe on Section 55, Chapter 8, Title I, Book V of the Administrative Code of 1987, which reads: Sec. 55. Political Activity.No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. "Partisan political activity" includes every form of solicitation of the electors vote in favor of a specific candidate. OEC defines "partisan political activity" as follows: SEC. 79. Definitions.As used in this Code: xxxx (b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or 146 Election Laws Election Process and/or Proceedings
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Section 79(b) of the
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate. The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan political activity. Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article. Given the aforequoted Section 79(b), it is obvious that the filing of a Certificate of Candidacy (CoC) for an elective position, while it may be a political activity, is not a "partisan political activity" within the contemplation of the law. The act of filing is only an announcement of ones intention to run for office. It is only an aspiration for a public office, not yet a promotion or a solicitation of votes for the election or defeat of a candidate for public office. In fact, even after the filing of the CoC but before the start of the campaign period, there is yet no 16 candidate whose election or defeat will be promoted. Rosalinda A. Penera v. Commission on Elections and Edgar T. Andanar instructs that any person who files his CoC shall only be considered a candidate at the start of the campaign period. Thus, in the absence of a "candidate," the mere filing of CoC cannot be considered as an "election campaign" or a "partisan political activity." Section 79 of the OEC does not even consider as "partisan political activity" acts performed for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office. Thus, when appointive civil servants file their CoCs, they are not engaging in a "partisan political activity" and, therefore, do not transgress or violate the Constitution and the law. Accordingly, at that moment, there is no valid basis to consider them as ipso facto resigned from their posts. There is a need to point out that the discussion in Farias v. The Executive Secretary, relative to the differential treatment of the two classes of civil servants in relation to the ipso facto resignation clause, is obiter dictum. That discussion is not necessary to the decision of the case, the main issue therein being the constitutionality of the repealing clause in the Fair Election Act. Further, unlike in the instant case, no direct challenge was posed in Farias to the constitutionality of the rule on the ipso facto resignation of appointive officials. In any event, the Court en banc, in deciding subsequent cases, can very well reexamine, as it did in the assailed decision, its earlier pronouncements and even abandon them when perceived to be incorrect. Let it also be noted that Mancuso v. Taft is not the heart of the December 1, 2009 Decision. Mancuso was only cited to show that resign-to-run provisions, such as those which are specifically involved herein, have been stricken down in the United States for unduly burdening First Amendment rights of employees and voting rights of citizens, and for being overbroad. Verily, in our jurisdiction, foreign jurisprudence only enjoys a persuasive influence on the Court. Thus, the contention that Mancuso has been effectively overturned by 19 subsequent American cases, such as United States Civil Service Commission v. National Association of Letter Carriers and Broadrick 20 v. State of Oklahoma, is not controlling. Be that as it may, a closer reading of these latter US cases reveals that Mancuso is still applicable. On one hand, Letter Carriers and Broadrick, which are based on United Public Workers of America v. Mitchell, prohibiting Federal employees from engaging in partisan political activities or political campaigns.
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involve provisions
In Mitchell, the appellants sought exemption from the implementation of a sentence in the Hatch Act, which reads: "No officer or employee in the executive branch of the Federal Government x x x shall take any active part in political management or in political 22 23 campaigns." Among the appellants, only George P. Poole violated the provision by being a ward executive committeeman of a political party and by being politically active on election day as a worker at the polls and a paymaster for the services of other party 24 workers. In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts prohibition against "active participation in political management or political campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in 25 party conventions, and to hold office in a political club. In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the Oklahomas Merit System of Personnel Administration Act restricting the political activities of the States classified civil servants, in much the same manner as the 26 Hatch Act proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission employees to do campaign work or to give referrals to persons who might help in the campaign, for soliciting money for the 27 campaign, and for receiving and distributing campaign posters in bulk. Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full-time police officer and classified civil service employee of the City of Cranston, filed his candidacy for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule 28 Charter. 147 Election Laws Election Process and/or Proceedings
Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter 29 Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. Thus, in Magill v. Lynch, the same collegial court which decided Mancuso was so careful in its analysis that it even remanded the case for consideration on the overbreadth claim. The Magill court stated thusPlaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, 30 we remand for consideration of plaintiffs overbreadth claim. As observed by the Court (citing Clements v. Fashing ) in the December 1, 2009 Decision, U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run rules when applied to specified or particular officials, as distinguished from all others, under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. In fact, Morial v. 32 Judiciary Commission of the State of Louisiana, where the resign-to-run provision pertaining to judges running for political offices was upheld, declares that "there is no blanket approval of restriction on the right of public employees to become candidates for public 33 office." The Morial court instructed thus Because the judicial office is different in key respects from other offices, the state may regulate its judges with the differences in mind. For example the contours of the judicial function make inappropriate the same kind of particularized pledges of conduct in office that are the very stuff of campaigns for most non-judicial offices. A candidate for the mayoralty can and often should announce his determination to effect some program, to reach a particular result on some question of city policy, or to advance the interests of a particular group. It is expected that his decisions in office may be predetermined by campaign commitment. Not so the candidate for judicial office. He cannot, consistent with the proper exercise of his judicial powers, bind himself to decide particular cases in order to achieve a given programmatic result. Moreover, the judge acts on individual cases and not broad programs. The judge legislates but interstitially; the progress through the law of a particular judge's social and political preferences is, in Mr. Justice Holmes' words, "confined from molar to molecular motions." As one safeguard of the special character of the judicial function, Louisiana's Code of Judicial Conduct bars candidates for judicial office from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." Candidates for non-judicial office are not subject to such a ban; in the conduct of his campaign for the mayoralty, an erstwhile judge is more free to make promises of post-campaign conduct with respect both to issues and personnel, whether publicly or privately, than he would be were he a candidate for re-election to his judgeship. The state may reasonably conclude that such pledges and promises, though made in the course of a campaign for non-judicial office, might affect or, even more plausibly, appear to affect the post-election conduct of a judge who had returned to the bench following an electoral defeat. By requiring resignation of any judge who seeks a nonjudicial office and leaving campaign conduct unfettered by the restrictions which would be applicable to a sitting judge, Louisiana has drawn a line which protects the state's interests in judicial integrity without sacrificing the equally important interests in robust campaigns for elective office in the executive or legislative branches of government. This analysis applies equally to the differential treatment of judges and other office holders. A judge who fails in his bid for a post in the state legislature must not use his judgeship to advance the cause of those who supported him in his unsuccessful campaign in the legislature. In contrast, a member of the state legislature who runs for some other office is not expected upon his return to the legislature to abandon his advocacy of the interests which supported him during the course of his unsuccessful campaign. Here, too, 34 Louisiana has drawn a line which rests on the different functions of the judicial and non-judicial office holder. Indeed, for an ipso facto resignation rule to be valid, it must be shown that the classification is reasonably necessary to attain the objectives of the law. Here, as already explained in the assailed decision, the differential treatment in the application of this resign-torun rule is not germane to the purposes of the law, because whether one holds an appointive office or an elective one, the evils sought to be prevented are not effectively addressed by the measure. Thus, the ineluctable conclusion that the concerned provisions are invalid for being unconstitutional. Without unnecessarily preempting the resolution of any subsequent actual case or unwittingly giving an advisory opinion, the Court, in the December 1, 2009 Decision, in effect, states that what should be implemented are the other provisions of Philippine laws (not the concerned unconstitutional provisions) that specifically and directly address the evils sought to be prevented by the measure. It is highly speculative then to contend that members of the police force or the armed forces, if they will not be considered as resigned when they file their COCs, is a "disaster waiting to happen." There are, after all, appropriate laws in place to curb abuses in the government service. The invalidation of the ipso facto resignation provisions does not mean the cessation in operation of other provisions of the Constitution and of existing laws. Section 2(4) of Article IX-B and Section 5(3), Article XVI of the Constitution, and Section 55, Chapter 8, Title I, Book V of the Administrative Code of 1987 still apply. So do other statutes, such as the Civil Service Laws, OEC, the Anti-Graft Law, the Code of Conduct and Ethical Standards for Public Officials and Employees, and related laws. Covered civil servants running for 35 political offices who later on engage in "partisan political activity" run the risk of being administratively charged. Civil servants who use 148 Election Laws Election Process and/or Proceedings
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government funds and property for campaign purposes, likewise, run the risk of being prosecuted under the Anti-Graft and Corrupt Practices Act or under the OEC on election offenses. Those who abuse their authority to promote their candidacy shall be made liable under the appropriate laws. Let it be stressed at this point that the said laws provide for specific remedies for specific evils, unlike the automatic resignation provisions that are sweeping in application and not germane to the purposes of the law. To illustrate, we hypothetically assume that a municipal election officer, who is an employee of the COMELEC, files his CoC. Given the invalidation of the automatic resignation provisions, the said election officer is not considered as ipso facto resigned from his post at the precise moment of the filing of the CoC. Thus, he remains in his post, and his filing of a CoC cannot be taken to be a violat ion of any provision of the Constitution or any statute. At the start of the campaign period, however, if he is still in the government service, that is, if he has not voluntarily resigned, and he, at the same time, engages in a "partisan political activity," then, he becomes vulnerable to prosecution under the Administrative Code, under civil service laws, under the Anti-Graft and Corrupt Practices Act or under the OEC. Upon the proper action being filed, he could, thus, be disqualified from running for office, or if elected, prevented from assuming, or if he had already assumed office, be removed from, office. At this juncture, it may even be said that Mitchell, Letter Carriers and Broadrick, the cases earlier cited by Chief Justice Puno and Associate Justices Carpio and Carpio-Morales, support the proposition advanced by the majority in the December 1, 2009 Decision. While the provisions on the ipso facto resignation of appointive civil servants are unconstitutional for being violative of the equal protection clause and for being overbroad, the general provisions prohibiting civil servants from engaging in "partisan political activity" remain valid and operational, and should be strictly applied. The COMELECs motion for reconsideration should, therefore, be denied. The OSGs motion for clarification In its motion, the OSG pleads that this Court clarify whether, by declaring as unconstitutional the concerned ipso facto resignation 36 provisions, the December 1, 2009 Decision intended to allow appointive officials to stay in office during the entire election period. The OSG points out that the official spokesperson of the Court explained before the media that "the decision would in effect allow appointive 37 officials to stay on in their posts even during the campaign period, or until they win or lose or are removed from office." I pose the following response to the motion for clarification. The language of the December 1, 2009 Decision is too plain to be mistaken. The Court only declared as unconstitutional Section 13 of R.A. No. 9369, Section 66 of the OEC and Section 4(a) of COMELEC Resolution No. 8678. The Court never stated in the decision that appointive civil servants running for elective posts are allowed to stay in office during the entire election period. The only logical and legal effect, therefore, of the Courts earlier declaration of unconstitutionality of the ipso facto resignation provisions is that appointive government employees or officials who intend to run for elective positions are not considered automatically resigned from their posts at the moment of filing of their CoCs. Again, as explained above, other Constitutional and statutory provisions do not cease in operation and should, in fact, be strictly implemented by the authorities. Let the full force of the laws apply. Then let the axe fall where it should. ANTONIO EDUARDO B. NACHURA Associate Justice
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 135886 August 16, 1999
VICTORINO SALCEDO II, petitioner, vs. COMMISSION ON ELECTIONS and ERMELITA CACAO SALCEDO, respondents. GONZAGA-REYES, J.: This is a petition for Certiorari under Rule 65 of the 1997 Rules of Court of the en banc Resolution of the Commission on Elections (Comelec) dated October 6, 1998, which reversed the earlier Resolution issued by its Second Division on August 12, 1998. From the pleadings and the annexes, the following uncontroverted facts have been established On February 18, 1968, Neptali P. Salcedo married Agnes Celiz, which marriage is evidenced by a certified true copy of the marriage 1 contract issued by the Municipal Civil Registrar of Ajuy, Iloilo. Without his first marriage having been dissolved, Neptali P. Salcedo 2 married private respondent Ermelita Cacao in a civil ceremony held on September 21, 1986. Two days later, on September 23, 1986, Ermelita Cacao contracted another marriage with a certain Jesus Aguirre, as shown by a marriage certificate filed with the Office of the 3 Civil Registrar. Petitioner Victorino Salcedo II and private respondent Ermelita Cacao Salcedo both ran for the position of mayor of the municipality of 4 Sara, Iloilo in the May 11, 1998 elections, both of them having filed their respective certificates of candidacy on March 27, 1998. 5 However, on April 17, 1998, petitioner filed with the Comelec a petition seeking the cancellation of private respondent's certificate of candidacy on the ground that she had made a false representation therein by stating that her surname was "Salcedo." Petitioner contended that private respondent had no right to use said surname because she was not legally married to Neptali Salcedo. On May 6 13, 1998, private respondent was proclaimed as the duly elected mayor of Sara, Iloilo. In her answer, private respondent claimed that she had no information or knowledge at the time she married Neptali Salcedo that he was in fact already married; that, upon learning of his existing marriage, she encouraged her husband to take steps to annul his marriage with Agnes Celiz because the latter had abandoned their marital home since 1972 and has not been heard from since that time; that on February 16, 1998, Neptali Salcedo filed a petition for declaration of presumptive death before Branch 66 of the Regional Trial Court of Barotac Viejo, Iloilo, which was granted by the court in its April 8, 1998 decision; that Neptali Salcedo and Jesus Aguirre are one and the same person; and that since 1986 up to the present she has been using the surname "Salcedo" in all her personal, 7 commercial and public transactions. On August 12, 1998, the Comelec's Second Division ruled, by a vote of 2 to 1, that since there is an existing valid marriage between Neptali Salcedo and Agnes Celiz, the subsequent marriage of the former with private respondent is null and void. Consequently, the use by private respondent of the surname "Salcedo" constitutes material misrepresentation and is a ground for the cancellation of her certificate of candidacy. The pertinent portion of the Resolution reads as follows The only issue to be resolved is whether or not the use by respondent of the surname "Salcedo" in her certificate of candidacy constitutes material misrepresentation under Section 78 in relation to Section 74 of the Omnibus Election Code. Sec. 78 of the of the (sic) Omnibus Election Code reads: A verified petition seeking to deny due course to or cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material misrepresentation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. A candidate's name or surname contained in the certificate of candidacy is required under Section 74 of the Omnibus Election Code and is a material misrepresentation. Gleaned from the records, respondent admitted that she married Neptali Salcedo on September 21, 1986 in a civil ceremony held in Sara, Iloilo and that she married Jesus Aguirre on September 23, 1986. For the petitioner, this admission is supported by a marriage contract (attached as Annex "C" of the Petition) and a certificate of marriage (attached as Annex "D" of the 150 Election Laws Election Process and/or Proceedings
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petition) where the contracting parties are "Jesus Aguirre" and "Ermelita Cacao". On the other hand, respondent tries to create the impression that "Neptali Salcedo" and "Jesus Aguirre" are one and the same persons. This Commission, however, holds the view that regardless of whether Neptali Salcedo and Jesus Aguirre are the same persons, the fact remains irrefutable is that at the time respondent contracted marriage with Neptali Salcedo, the latter has a valid existing marriage with Agnes Celiz and this was sufficiently established by a marriage contract executed on February 18, 1968 and attached to the petition as Annex "E". Respondent cannot seek refuge in her bare assumption that since Agnes Celiz was declared as presumptively dead by the Regional Trial Court of Barotac Viejo, Iloilo, she was free to marry Neptali Salcedo. In point of fact and law, there was considerably NO pronouncement to the effect that the marriage of Neptali Salcedo and Agnes Celiz was annulled by the court and that Salcedo became free to marry respondent. From all indications, it is to be fairly assumed that since there is an existing valid marriage between Neptali Salcedo and Agnes Celiz, the subsequent marriage of the former with the respondent is null and void. Consequently, the use by the respondent of the surname "Salcedo" constitutes material misrepresentation and is a ground for the cancellation of her certificate of candidacy.1wphi1.nt WHEREFORE, this Commission (SECOND DIVISION) RESOLVED, as it hereby RESOLVES, to CANCEL the Certificate of 9 Candidacy of respondent for the position of Municipal Mayor of Sara, Iloilo in the May 11, 1998 elections. However, in its en banc Resolution dated October 6, 1998, the Comelec overturned its previous resolution, ruling that private respondent's certificate of candidacy did not contain any material misrepresentation. It disposed of the case in this manner The record shows that respondent Ermelita C. Salcedo married Neptali Salcedo on September 21, 1986. Under Article 370 of the Civil Code, the respondent may use her husband's surname. Hence, there is no material misrepresentation nor usurpation of another's name. At any rate, its has been said that the "filing of a certificate of candidacy is a technicality that should be enforced before the election, but can be disregarded after the electorate has made the choosing" (Collado vs. Alonzo, 15 SCRA 526). This rule is in consonance with the policy announced in many decisions that "the rules and regulations, for the conduct of elections, are mandatory before the elections, but when it is sought to enforce them after the elections, they are held to be directory only" (Lambonao vs. Tero, 15 SCRA 716). Furthermore, the municipal board of canvassers proclaimed the respondent last May 13, 1998, as the duly elect mayor of the municipality of Sara, Province of Iloilo. Any defect in the respondent's certificate of candidacy should give way to the will of the electorate. WHEREFORE, the COMMISSION resolves to GRANT the instant Motion for Reconsideration. We REVERSE the resolution (Second Division) promulgated on August 12, 1998, cancelling the certificate of candidacy of the respondent Ermelita C. Salcedo. The proclamation of Ermelita C. Salcedo, as mayor of Sara, Iloilo, remains valid, there being no legal ground to set it 10 aside. This last resolution of the Comelec prompted petitioner to repair to this Court by way of a petition for certiorari under Rule 65, claiming that public respondent's ruling was issued in grave abuse of its discretion. Contrary to petitioner's contention, we are of the opinion that the main issue in this case is not whether or not private respondent is 11 entitled to use a specific surname in her certificate of candidacy, but whether the use of such surname constitutes a material misrepresentation under section 78 of the Omnibus Election Code (the "Code") so as to justify the cancellation of her certificate of candidacy. We hold that it does not. Every person aspiring to hold any elective public office must file a sworn certificate of candidacy. 13 stated therein is that the candidate is eligible for the office.
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One of the things which should be
In case there is a material misrepresentation in the certificate of candidacy, the Comelec is authorized to deny due course to or cancel such certificate upon the filing of a petition by any person pursuant to section 78 of the Code which states that A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material misrepresentation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. If the petition is filed within the statutory period and the candidate is subsequently declared by final judgment to be disqualified before the election, he shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the 151 Election Laws Election Process and/or Proceedings
Court or the Comelec shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of 14 15 his guilt is strong. The fifteen-day period in section 78 for deciding the petition is merely directory. As stated in the law, in order to justify the cancellation of the certificate of candidacy under section 78, it is essential that the false representation mentioned therein pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a "material representation," the Court has interpreted this phrase in a line of decisions applying section 78 of the Code. In Abella vs. Larrazabal, supra, a petition was filed with the Comelec seeking the disqualification of private respondent Larrazabal for alleged false statements in her certificate of candidacy regarding residence. The Court held that the challenge made against private respondent's claimed residence was properly classified as a proceeding under section 78, despite the fact that it was filed only on the 16 very day of the election. Meanwhile, in Labo vs. Commission on Elections, the disqualification proceeding filed by respondent pursuant to section 78 of the Code sought to cancel the certificate of candidacy filed by petitioner Ramon Labo, who ran for mayor of Baguio City in the last May 11, 1992 elections, based on the ground that Labo made a false representation when he stated therein that he is natural-born citizen of the Philippines. The Court, speaking through Justice Abdulwahid A. Bidin, held that Labo, having failed to submit any evidence to prove his reacquisition of Philippine citizenship, is not a Filipino citizen and respondent Comelec did not commit any grave abuse of discretion in cancelling his certificate of candidacy. The Court went on to say that the possession of citizenship, being an indispensable requirement for holding public office, may not be dispensed with by the fact of having won the elections for it "strikes at the very core of petitioner Labo's qualification to assume the contested office." A similar issue was dealt with in the Frivaldo vs. Commission on Elections cases wherein Frivaldo's qualification for public office was questioned in a petition filed by petitioner Paul R. Lee, praying that Frivaldo be disqualified from seeking or holding any public office or position and that his certificate of candidacy be cancelled by reason of his not yet being a citizen of the Philippines. The Court held that Frivaldo had reacquired Philippine citizenship by virtue of his repatriation under P.D. 725 and was qualified to hold the position of governor of Sorsogon. The Court has likened a proceeding under section 78 to a quo warranto proceeding under section 253 since they both deal with the 19 qualifications of a candidate. In the case of Aznar vs. Commission on Elections, wherein a petition was filed asking the Comelec to disqualify private respondent Emilio Osmena on the ground that he does not possess the requisite Filipino citizenship, the Court said There are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit: (1) Before election, pursuant to Section 78 thereof which provides that: Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material misrepresentation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. and (2) After election, pursuant to Section 253 thereof, viz.: Sec. 253. Petition for quo warranto. Any voter contesting the election of any Member of the Batasang Pambansa , regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election. (emphasis supplied) The only difference between the two proceedings is that, under section 78, the qualifications for elective office are misrepresented in the certificate of candidacy and the proceedings must be initiated before the elections, whereas a petition for quo warranto under section 253 may be brought on the basis of two grounds (1) ineligibility or (2) disloyalty to the Republic of the Philippines, and must be initiated within ten days after the proclamation of the election results. Under section 253, a candidate is ineligible if he is disqualified 21 to be elected to office, and he is disqualified if he lacks any of the qualifications for elective office. 152 Election Laws Election Process and/or Proceedings
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In still another case, where the petition to disqualify petitioner was based upon an alleged false representation in the certificate of candidacy as to the candidate's age, the Court once again drew a parallel between a petition for quo warranto and a petition to cancel a certificate of candidacy when it stated that ". . . if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the 25-day period prescribed by Section 78 of the Code for whatever reasons, the elections laws do not leave him completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo warranto within 22 ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Code." Therefore, it may be concluded that the material misrepresentation contemplated by section 78 of the Code refer to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave to prevent the candidate from running or, if elected, from serving, or to 23 prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake. Petitioner has made no allegations concerning private respondent's qualifications to run for the office of mayor. Aside from his contention that she made a misrepresentation in the use of the surname "Salcedo," petitioner does not claim that private respondent lacks the requisite residency, age, citizenship or any other legal qualification necessary to run for a local elective office as provided for 24 in the Local Government Code. Thus, petitioner has failed to discharge the burden of proving that the misrepresentation allegedly made by private respondent in her certificate of candidacy pertains to a material matter. Aside from the requirement of materiality, a false representation under section 78 must consist of a "deliberate attempt to mislead, 25 misinform, or hide a fact which would otherwise render a candidate ineligible." In other words, it must be made with an intention to deceive the electorate as to one's qualifications for public office. The use of a surname, when not intended to mislead or deceive the public as to one's identity, is not within the scope of the provision. There is absolutely no showing that the inhabitants of Sara, Iloilo were deceived by the use of such surname by private respondent. Petitioner does not allege that the electorate did not know who they were voting for when they cast their ballots in favor of "Ermelita Cacao Salcedo" or that they were fooled into voting for someone else by the use of such name. It may safely be assumed that the electorate knew who private respondent was, not only by name, but also by face and may have even been personally acquainted with 26 her since she has been residing in the municipality of Sara, Iloilo since at least 1986. Bolstering this assumption is the fact that she has been living with Neptali Salcedo, the mayor of Sara for three consecutive terms, since 1970 and the latter has held her out to the 27 public as his wife. Also arguing against petitioner's claim that private respondent intended to deceive the electorate is the fact that private respondent started using the surname "Salcedo" since 1986, several years before the elections. In her application for registration of her rice and corn milling business filed with the Department of Trade and Industry in 1993, private respondent used the name "Ermelita Cacao 28 Salcedo." From 1987 to 1997, she also used the surname "Salcedo" in the income tax returns filed by herself and by Neptali 29 Salcedo. The evidence presented by private respondent on this point, which has remained uncontested by petitioner, belie the latter's claims that private respondent merely adopted the surname "Salcedo" for purposes of improving her chances of winning in the local elections by riding on the popularity of her husband. Thus, we hold that private respondent did not commit any material misrepresentation by the use of the surname "Salcedo" in her certificate of candidacy. Having disposed of the major issues, we will now proceed to tackle the secondary issues raised in the petition. Petitioner claims that the following circumstances constitute grave abuse of discretion on the part of the Comelec: (1) the October 6, 1998 en banc Resolution of the Comelec, sustaining the validity of private respondent's certificate of candidacy, merely duplicated the dissenting opinion of Commissioner Desamito of the Second Division in the August 12, 1998 Resolution; (2) Chairman Pardo, the ponente of the en banc Resolution, and Commissioner Guiani; both members of the Second Division who ruled in favor of petitioner in the August 12, 1998 Resolution, reversed their positions in the en banc resolution; and (3) the en banc Resolution was promulgated on the very same day that Chairman Pardo took his oath of office as Associate Justice of the Supreme Court. Petitioner does not indicate what legal provision or equitable principle the Comelec transgressed by the commission of these acts. We find nothing legally assailable with the Comelec's adoption in its en banc Resolution of the reasoning contained in the dissenting opinion of Commissioner Desamito; nor is the en banc Resolution rendered infirm by the mere change of position adopted by Chairman Pardo and Guiani of the Second Division. Precisely, the purpose of a motion for reconsideration is allow the adjudicator a second 30 opportunity to review the case and to grapple with the issues therein, deciding anew a question previously raised. There is no legal proscription imposed upon the deciding body against adopting a position contrary to one previously taken. Finally, the fact that the decision was promulgated on the day Chairman Pardo, the ponente of the en banc Resolution, took his oath of office as Associate Justice of the Supreme Court does not give ground to question the Comelec decision for then Chairman Pardo enjoys the presumption of regularity in the performance of his official duties, a presumption which petitioner has failed to rebut. At any rate, the date of promulgation is not necessarily the date of signing. Election Laws Election Process and/or Proceedings
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In upholding the validity of private respondent's certificate of candidacy, we reiterate that "[t]he sanctity of the people's will must be observed at all times if our nascent democracy is to be preserved. In any challenge having the effect of reversing a democratic voice, expressed through the ballot, this Court should be ever so vigilant in finding solutions which would give effect to the will of the majority, for sound public policy dictates that all elective offices are filled by those who have received the highest number of votes cast in an election. When a challenge to a winning candidate's qualifications however becomes inevitable, the ineligibility ought to be so noxious 31 to the Constitution that giving effect to the apparent will of the people would ultimately do harm to our democratic institutions." Since there appears to be no dispute as to private respondent's qualifications to hold the office of municipal mayor, the will of the electorate must prevail. WHEREFORE, the Court hereby AFFIRMS the en banc Resolution of the Commission on Elections dated October 6, 1998 denying the petition to cancel private respondent's certificate of candidacy. No pronouncement as to costs. SO ORDERED.
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MOZART P. PANLAQUI, Petitioner, vs. COMMISSION ON ELECTIONS and NARDO M. VELASCO, Respondents. DECISION CARPIO MORALES, J.: The present petition is one for certiorari. Petitioner Mozart Panlaqui (Panlaqui) assails the Commission on Elections (Comelec) En Banc Resolution of June 17, 2009 denying 1 his motion for proclamation, which he filed after this Court affirmed in G.R. No. 180051 the nullification of the proclamation of private respondent Nardo Velasco (Velasco) as mayor of Sasmuan, Pampanga. Velasco was born in Sasmuan on June 22, 1952 to Filipino parents. He married Evelyn Castillo on June 29, 1975. In 1983, he moved to the United States where he subsequently became a citizen. Upon Velascos application for dual citizenship under Republic Act No. 9225 was approved on July 31, 2006, he took on even date his oath of allegiance to the Republic of the Philippines and returned to the Philippines on September 14, 2006. On October 13, 2006, Velasco applied for registration as a voter of Sasmuan, which application was denied by the Election Registration Board (ERB). He thus filed a petition for the inclusion of his name in the list of voters before the Municipal Trial Court (MTC) of Sasmuan which, by Decision of February 9, 2007, reversed the ERBs decision and ordered his inclusion in the list of voters of Sasmuan. On appeal, the Regional Trial Court (RTC) of Guagua, Pampanga, by Decision of March 1, 2007, reversed the MTC Decision, drawing 4 Velasco to elevate the matter via Rule 42 to the Court of Appeals which, by Amended Decision of August 19, 2008, dismissed the appeal for lack of jurisdiction. In the meantime, Velasco filed on March 28, 2007 his Certificate of Candidacy (COC) for mayor of Sasmuan, therein claiming his status as a registered voter. Panlaqui, who vied for the same position, thereupon filed before the Comelec a Petition to Deny Due Course To and/or To Cancel Velascos COC based on gross material misrepresentation as to his residency and, consequently, his qualification to vote. In the electoral bout of May 2007, Velasco won over Panlaqui as mayor of Sasmuan. As the Comelec failed to resolve Panlaquis petition prior to the elections, Velasco took his oath of office and assumed the duties of the office. Finding material misrepresentation on the part of Velasco, the Comelec cancelled his COC and nullified his proclamation, by Resolutions of July 6, 2007 and October 15, 2007, which this Court affirmed in G.R. No. 180051. Panlaqui thereafter filed a motion for proclamation which the Comelec denied by the assailed Resolution, pointing out that the rule on succession does not operate in favor of Panlaqui as the second placer because Velasco was not disqualified by final judgment before election day. Hence, the present petition which imputes grave abuse of discretion on the part of the Comelec for not regarding the RTC March 1, 2007 Decision as the final judgment of disqualification against Velasco prior to the elections, so as to fall within the ambit of Cayat v. 5 Commission on Elections on the exception to the doctrine on the rejection of the second placer. Velasco filed his Comment of September 18, 2009 with motion to consolidate the present case with G.R. No. 189336, his petition challenging the Comelecs September 8, 2009 Order which directed him to vacate his mayoralty post for the incumbent vice-mayor to assume office as mayor. A perusal of the records of the petition shows, however, that it had already been dismissed by the Court by 6 Resolution of October 6, 2009. 155 Election Laws Election Process and/or Proceedings
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In his present petition, Panlaqui implores this Court to apply in his favor the case of Cayat where the Court affirmed, inter alia, the Comelec Order directing the proclamation of the second placer as Mayor of Buguias, Benguet in this wise: There is no doubt as to the propriety of Palilengs proclamation for two basic reasons. First, the COMELEC First Divisions Resolution of 12 April 2004 cancelling Cayats certificate of candidacy due to disqualification became final and executory on 17 April 2004 when Cayat failed to pay the prescribed filing fee. Thus, Palileng was the only candidate for Mayor of Buguias, Benguet in the 10 May 2004 elections. Twentythree days before election day, Cayat was already disqualified by final judgment to run for Mayor in the 10 May 2004 elections. As the only candidate, Palileng was not a second placer. On the contrary, Palileng was the sole and only placer, second to none. The doctrine on the rejection of the second placer, which triggers the rule on succession, does not apply in the present case because Palileng is not a second-placer but the only placer. Consequently, Palilengs proclamation as Mayor of Buguias, Benguet is beyond question. Second, there are specific requirements for the application of the doctrine on the rejection of the second placer. The doctrine will apply in Bayacsans favor, regardless of his intervention in the present case, if two conditions concur: (1) the decision on Cayats disqualification remained pending on election day, 10 May 2004, resulting in the presence of two mayoralty candidates for Buguias, 7 Benguet in the elections; and (2) the decision on Cayats disqualification became final only after the elections. (emphasis and italics in the original; underscoring supplied) Repackaging the present petition in Cayats fashion, Panlaqui asserts that the RTC March 1, 2007 Decision in the voters inclusion proceedings must be considered as the final judgment of disqualification against Velasco, which decision was issued more than two months prior to the elections. Panlaqui posits that when Velascos petition for inclusion was denied, he was also declared as disqualified to run for public office. Unwrapping the present petition, the Court finds that the true color of the issue of distinction between a petition for inclusion of voters in the list and a petition to deny due course to or cancel a certificate of candidacy has already been defined in Velasco v. Commission on 8 Elections where the Court held that the two proceedings may ultimately have common factual bases but they are poles apart in terms of the issues, reliefs and remedies involved, thus: In terms of purpose, voters inclusion/exclusion and COC denial/cancellation are different proceedings; one refers to the application to be registered as a voter to be eligible to vote, while the other refers to the application to be a candidate. Because of their differing purposes, they also involve different issues and entail different reliefs, although the facts on which they rest may have commonalities 9 where they may be said to converge or interface. x x x (underscoring supplied) Voters inclusion/exclusion proceedings, on the one hand, essentially involve the issue of whether a petitioner shall be included in or excluded from the list of voters based on the qualifications required by law and the facts presented to show possession of these 10 qualifications. On the other hand, COC denial/cancellation proceedings involve the issue of whether there is a false representation of a material fact. The false representation must necessarily pertain not to a mere innocuous mistake but to a material fact or those that refer to a candidates qualifications for elective office. Apart from the requirement of materiality, the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible or, otherwise stated, with 11 the intention to deceive the electorate as to the would-be candidates qualifications for public office. In Velasco, the Court rejected Velascos contention that the Comelec improperly ruled on the right to vote when it cancelled his COC. The Court stated that the Comelec merely relied on or recognized the RTCs final and executory decision on the matter of the right to vote in the precinct within its territorial jurisdiction. In the present petition, it is Panlaquis turn to proffer the novel interpretation that the RTC properly cancelled Velascos COC when it ruled on his right to vote. The Court rejects the same.1avvphi1 It is not within the province of the RTC in a voters inclusion/exclusion proceedings to take cognizance of and determine the presence of a false representation of a material fact. It has no jurisdiction to try the issues of whether the misrepresentation relates to material fact and whether there was an intention to deceive the electorate in terms of ones qualifications for public office. The finding that Velasco was not qualified to vote due to lack of residency requirement does not translate into a finding of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render him ineligible. Assuming arguendo the plausibility of Panlaquis theory, the Comelec correctly observed that when the RTC issued its March 1, 2007 Decision, there was yet no COC to cancel because Velascos COC was filed only on March 28, 2007. Indeed, not only would it be in excess of jurisdiction but also beyond the realm of possibility for the RTC to rule that there was deliberate concealment on the part of Velasco when he stated under oath in his COC that he is a registered voter of Sasmuan despite his knowledge of the RTC decision which was yet forthcoming. 156 Election Laws Election Process and/or Proceedings
IN FINE, the Comelec did not gravely abuse its discretion when it denied Panlaquis motion for proclamation. Since Velascos disqualification as a candidate had not become final before the elections, the Comelec properly applied the rule on succession. x x x To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances. To allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to disenfranchise them through no fault on their part, and to undermine the importance and the meaning of democracy and the right of the people to elect officials of their choice. Theoretically, the second placer could receive just one vote. In such a case, it would be absurd to proclaim the totally repudiated 12 candidate as the voters choice. x x x WHEREFORE, the petition is DISMISSED. The assailed June 17, 2009 Resolution of the Commission on Elections is AFFIRMED. SO ORDERED.
157
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 161872 April 13, 2004
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner, vs. COMMISSION ON ELECTIONS, respondent. RESOLUTION TINGA, J.: Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give due course to petitioners Certificate of Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision, however, was not unanimous since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to include petitioner as they believed he had parties or movements to back up his candidacy. On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioners Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioners Motion for Reconsideration and on similar motions filed by other aspirants for national elective positions, denied the same under the aegis of Omnibus Resolution No. 6604 dated February 11, 2004. The COMELEC declared petitioner and thirty-five (35) others nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a political party or are not supported by a registered political party with a national constituency. Commissioner Sadain maintained his vote for petitioner. By then, Commissioner Tancangco had retired. In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly rendered in violation of his right to "equal access to opportunities for public service" under Section 26, Article II of the 1987 Constitution, by limiting the number of qualified candidates only to those who can afford to wage a nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the COMELEC indirectly amended the constitutional provisions on the electoral process and limited the power of the sovereign people to choose their leaders. The COMELEC supposedly erred in disqualifying him since he is the most qualified among all the presidential candidates, i.e., he possesses all the constitutional and legal qualifications for the office of the president, he is capable of waging a national campaign since he has numerous national or ganizations under his leadership, he also has the capacity to wage an international campaign since he has practiced law in other countries, and he has a platform of government. Petitioner likewise attacks the validity of the form for the Certificate of Candidacy prepared by the COMELEC. Petitioner claims that the form does not provide clear and reasonable guidelines for determining the qualifications of candidates since it does not ask for the candidates bio-data and his program of government. First, the constitutional and legal dimensions involved. Implicit in the petitioners invocation of the constitutional provision ensuring "equal access to opportunities for public office" is the claim that there is a constitutional right to run for or hold public office and, particularly in his case, to seek the presidency. There is none. What is recognized is merely a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain language of the provision which suggests such a thrust or justifies an interpretation of the sort. The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration of Principles and State Policies." 2 The provisions under the Article are generally considered not self-executing, and there is no plausible reason for according a different treatment to the "equal access" provision. Like the rest of the policies enumerated in Article II, the provision does not contain any 3 judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action. The disregard of the 4 provision does not give rise to any cause of action before the courts. An inquiry into the intent of the framers produces the same determination that the provision is not self-executory. The original wording 6 of the present Section 26, Article II had read, "The State shall broaden opportunities to public office and prohibit public dynasties." Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth an amendment that changed the word "broaden" to the phrase "ensure equal access," and the substitution of the word "office" to "service." He explained his proposal in this wise: I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important would be equal access to the opportunity. If you broaden, it would necessarily mean that the government would be mandated to create as many 158 Election Laws Election Process and/or Proceedings
5 1
offices as are possible to accommodate as many people as are also possible. That is the meaning of broadening opportunities to public service. So, in order that we should not mandate the State to make the government the number one employer and to limit offices only to what may be necessary and expedient yet offering equal opportunities to 7 access to it, I change the word "broaden." (emphasis supplied) Obviously, the provision is not intended to compel the State to enact positive measures that would accommodate as many people as possible into public office. The approval of the "Davide amendment" indicates the design of the framers to cast the provision as simply enunciatory of a desired policy objective and not reflective of the imposition of a clear State burden. Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its effective means and reach are not properly defined. Broadly 8 written, the myriad of claims that can be subsumed under this rubric appear to be entirely open-ended. Words and phrases such as "equal access," "opportunities," and "public service" are susceptible to countless interpretations owing to their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people an operative but amorphous foundation from which innately unenforceable rights may be sourced. As earlier noted, the privilege of equal access to opportunities to public office may be subjected to limitations. Some valid limitations 9 specifically on the privilege to seek elective office are found in the provisions of the Omnibus Election Code on "Nuisance Candidates" 10 and COMELEC Resolution No. 6452 dated December 10, 2002 outlining the instances wherein the COMELEC may motu proprio refuse to give due course to or cancel a Certificate of Candidacy. As long as the limitations apply to everybody equally without discrimination, however, the equal access clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by any one who is minded to file a certificate of candidacy. In the case at bar, there is no showing that any person is exempt from the limitations or the burdens which they create. Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed validity stands and has to be accorded due weight. Clearly, therefore, petitioners reliance on the equal access clause in Section 26, Article II of the Constitution is misplaced. The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the same time, remedial actions should be available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held: [T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization and its candidates on the ballot the interest, if no other, in avoiding confusion, 11 deception and even frustration of the democratic [process]. The COMELEC itself recognized these practical considerations when it promulgated Resolution No. 6558 on 17 January 2004, adopting the study Memorandum of its Law Department dated 11 January 2004. As observed in the COMELECs Comment: There is a need to limit the number of candidates especially in the case of candidates for national positions because the election process becomes a mockery even if those who cannot clearly wage a national campaign are allowed to run. Their names would have to be printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to the government. For the official ballots in automated counting and canvassing of votes, an additional page would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00). xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage a decent campaign enough to 12 project the prospect of winning, no matter how slim. The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to run in the elections. Our 13 election laws provide various entitlements for candidates for public office, such as watchers in every polling place, watchers in the 14 15 board of canvassers, or even the receipt of electoral contributions. Moreover, there are election rules and regulations the formulations of which are dependent on the number of candidates in a given election.
159
Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. This is not to mention the candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae covering every step of the electoral process, most probably posed at the instance of these nuisance candidates. It would be a senseless sacrifice on the part of the State. Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not indulge in, as the song goes, "their trips to the moon on gossamer wings." The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State interest to ensure orderly and credible elections by excising impediments thereto, such as nuisance candidacies that distract and detract from the larger purpose. The 16 COMELEC is mandated by the Constitution with the administration of elections and endowed with considerable latitude in adopting 17 means and methods that will ensure the promotion of free, orderly and honest elections. Moreover, the Constitution guarantees that 18 only bona fide candidates for public office shall be free from any form of harassment and discrimination. The determination of bona fide candidates is governed by the statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code. Now, the needed factual premises. However valid the law and the COMELEC issuance involved are, their proper application in the case of the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it. The assailed resolutions of the COMELEC do not direct the Court to the evidence which it considered in determining that petitioner was a nuisance candidate. This precludes the Court from reviewing at this instance whether the COMELEC committed grave abuse of discretion in disqualifying petitioner, since such a review would necessarily take into account the matters which the COMELEC considered in arriving at its decisions. Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts, can not properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor the Solicitor General appended any document to their respective Comments. The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of the factual determination is not before this Court. Thus, the remand of this case for the reception of further evidence is in order. A word of caution is in order. What is at stake is petitioners aspiration and offer to serve in the government. It deserves not a cursory treatment but a hearing which conforms to the requirements of due process. As to petitioners attacks on the validity of the form for the certificate of candidacy, suffice it to say that the form strictly complies with Section 74 of the Omnibus Election Code. This provision specifically enumerates what a certificate of candidacy should contain, with the required information tending to show that the candidate possesses the minimum qualifications for the position aspired for as established by the Constitution and other election laws. IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the COMELEC for the reception of further evidence, to determine the question on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus Election Code. The COMELEC is directed to hold and complete the reception of evidence and report its findings to this Court with deliberate dispatch. SO ORDERED.
160
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-2539 May 28, 1949
JOSE P. MONSALE, protestant-appeal, vs. PAULINO M. NICO, protestee-appellant. Cirio Mapa, Jr. and Jose Gaton for appellant. Felix V. Macalalang for appellee. OZAETA, J.: This is appeal by the protestee from a decision of the Court of instance of Iloilo declaring the protestant elected municipal mayor of Miagao as a result of the general elections held on November 11, 1947. It appears that the protestant withdrew his certificate of candidacy on October 10, 1947, but on November 7, attempted to revive it by withdrawing his withdrawal. The commission on Election, however, rules on November 8 thatthe protestant could no longer be a candidate in spite of his desire to withdrawal. A canvass of the election returns showed that the protestee Paulino M. Nico received 2,291 votes; another candidate, Gregorio Fagutao126, votes; and the protestant Jose F. Monsale, none, evidently because the vote cast in his favor had not been counted for the reason that he was not a registered candidate. Consequently, Nico was proclaim ed elected. The pivotal question presented in this appeal is whether a candidate who has withdrawn his certificate of candidacy may revive it, either by withdrawing his letter of withdrawal or by filling a new certificate of candidacy, after the deadline provided by law for the filling of such certificate. Section 31 of the Revised Election Code (Republic Act No. 180) providesthat "no person shall be eligible unless, within the time fixed by law, he files a duty signed and sworn certificate of candidacy." Section 36 provides that "at least sixty days before a regular election and thirty days at least before a special election, the . . . certificates of candidacy for municipal offices shall be filed with the municipal secretary, who shall immediately send copies thereof to the polling place concerned, to the secretary of the provincial board and to the Commission on Elections." Section 38 further that "if, after the expiration of the time limit for filling certificate of candidacy, a candidate with a certificate of candidacy duly filed should die or become disqualified, any legally qualified citizen may file a certificate of candidacy for the office for which the deceased or disqualified person was a candidate in accordance with the preceding section on or before midday of the day of the election, and, if the death or disqualification should occur between the day before the election and the midday of election day, said certificate may be filed with any board of inspection of the political division where he is a candidate or in the case of candidates to be voted for by the entire electorate, with the Commission on Elections." In the present case the protestant withdrew his certificate of candidacy on October 10, 1947, and requested the Commission on Election that it "be considered as though it has never been filed at all." There is no question as to the right off a candidate to withdraw or annul his own certificate of candidacy, there being no legal prohibition against such withdrawal. Therefore, on October 10, or thirty-on days before the election, the protestant ceased to be candidate by his own voluntary act, and as a matter of facts the boards of election inspectors of the municipality of Miagao we duly notified of his letter to the Commission on Election dated November 6, 1947, which subscribed and swore to before a notary public on November 7, whereby he withdrew his withdrawal of his certificate of candidacy, can only be considered as a new certificate of candidacy which, having been filed only four days before the election, could not legally be accepted under the law, which expressly provides that such certificate should be filed at sixty days before the election. The evident purposes of the law in requiring the filling of certificates of candidacy and in fixing a time limit therefor are (a) to enable the voter to know, at least sixty days before a regular election the candidate among whom they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast; for if the law did not confine the choice or election by the voter to duly registered candidates, there might be as many person voted for as there were voters, and votes might be cast even for unknown or fictitious person as a mark to identify the votes in favor of a candidate for another office in the same election. The only instance wherein the law permit the filling of a certificate ofcandidacy after the expiration of the time limit for filing it is when a candidate with a certificate of candidacy duty filed dies or becomes disqualified. The Commission on Election was, therefore, right in holding as it did that the protestant "can no longer be a candidate in spite of his desire to withdraw his withdrawal." In the case Clutario vs. Commission on Elections, G.R. No. L-1704, this court sustained the ruling of 161 Election Laws Election Process and/or Proceedings
said commission upon similar facts that "by own voluntary act and deed petitioner has nullified his certificate of candidacy and in the light of the election laws such certificate of candidacy has been definitely withdrawn hence nonexisting." Under section 174 of the Revised Election Code, "a petition contesting the election of a provincial or municipal officer-elect shall be filed with the Court of First Instance of the province by any candidate voted for insaid election and who has presented a certificate of candidacy." This clearly implies that a candidate voted for who has not presented a certificate of candidacy has no right to contest the election. In other words, the herein protestant, not being a registered candidate, has no standing before the court. The judgment appealed from is reversed and the protest is ordered dismissed with costs against the appellee. So ordered.
162
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 102653 March 5, 1992 NATIONAL PRESS CLUB, petitioner, vs. COMMISSION ON ELECTIONS, respondent. G.R. No. 102925 March 5, 1992 PHILIPPINE PRESS INSTITUTE represented by ZOILO DEJARESCO, JR., as its Past Chairman and President, and FRAULIN A. PEASALES as its Corporate Secretary, petitioners, vs. COMMISSION ON ELECTIONS, represented by HON. CHRISTIAN MONSOD, its Chairman; HON. GUILLERMO CARAGUE and HON. ROSALINA S. CAJUCOM, respondents. G.R. No. 102983 March 5, 1992 KAPISANAN NG MGA BRODKASTERS SA PILIPINAS; MAKATI BROADCASTING NETWORK; MOLAVE BROADCASTING NETWORK; MASBATE COMMUNITY BROADCASTING CO., INC., RADIO MINDANAO NETWORK, INC.; ABS-CBN BROADCASTING CORP.; FILIPINAS BROADCASTING; RADIO PILIPINO CORP.; RADIO PHILIPPINES NETWORK, INC.; EAGLE BROADCASTING CORP.; MAGILIW COMMUNITY BROADCASTING CO., INC.; for themselves and in behalf of the mass media owners as a class; ANDRE S. KHAN; ARCADIO M. CARANDANG, JR.; MALOU ESPINOSA MANALASTAS; MIGUEL C. ENRIQUEZ; JOSE ANTONIO K. VELOSO; DIANA G. DE GUZMAN; JOSE E. ESCANER, JR.; RAY G. PEDROCHE; PETER A. LAGUSAY; ROBERT ESTRELLA; ROLANDO RAMIREZ; for themselves as voters and in behalf of the Philippine electorate as a class; ORLANDO S. MERCADO and ALEJANDRO de G. RODRIGUEZ; for themselves as prospective candidates and in behalf of all candidates in the May 1992 election as a class, petitioners, vs. COMMISSION ON ELECTIONS, respondent.
FELICIANO, J.: In the three (3) consolidated Petitions before us, the common question raised by petitioners is the constitutionality of Section 11 (b) of Republic Act No. 6646. Petitioners in these cases consist of representatives of the mass media which are prevented from selling or donating space and time for political advertisements; two (2) individuals who are candidates for office (one for national and the other for provincial office) in the coming May 1992 elections; and taxpayers and voters who claim that their right to be informed of election issues and of credentials of the candidates is being curtailed. It is principally argued by petitioners that Section 11 (b) of Republic Act No. 6646 invades and violates the constitutional guarantees comprising freedom of expression. Petitioners maintain that the prohibition imposed by Section 11 (b) amounts to censorship, because it selects and singles out for suppression and repression with criminal sanctions, only publications of a particular content, namely, media-based election or political propaganda during the election period of 1992. It is asserted that the prohibition is in derogation of media's role, function and duty to provide adequate channels of public information and public opinion relevant to election issues. Further, petitioners contend that Section 11 (b) abridges the freedom of speech of candidates, and that the suppression of media-based campaign or political propaganda except those appearing in the Comelec space of the newspapers and on Comelec time of radio and television broadcasts, would bring about a substantial reduction in the quantity or volume of information concerning candidates and issues in the election thereby curtailing and limiting the right of voters to information and opinion. The statutory text that petitioners ask us to strike down as unconstitutional is that of Section 11 (b) of Republic Act No. 6646, known as the Electoral Reforms Law of 1987: Sec. 11 Prohibited Forms of Election Propaganda. In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful; 163 Election Laws Election Process and/or Proceedings
xxx xxx xxx b) for any newspapers, radio broadcasting or television station, other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period. (Emphasis supplied) Section 11 (b) of Republic Act No. 6646 should be taken together with Sections 90 and 92 of B.P. Blg. 881, known as the Omnibus Election Code of the Philippines, which provide respectively as follows: Sec. 90. Comelec space. The Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates within the area in which the newspaper is circulated. xxx xxx xxx Sec. 92. Comelec time. The Commission shall procure radio and television time to be known as "Comelec Time" which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign. (Emphasis supplied) The objective which animates Section 11 (b) is the equalizing, as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign "war chests." Section 11 (b) prohibits the s ale or donation of print space and air time "for campaign or other political purposes" except to the Commission on Elections ("Comelec"). Upon the other hand, Sections 90 and 92 of the Omnibus Election Code require the Comelec to procure "Comelec space" in newspapers of general circulation in every province or city and "Comelec time" on radio and television stations. Further, the Comelec is statutorily commanded to allocate "Comelec space" and "Comelec time" on a free of charge, equal and impartial basis among all candidates within the area served by the newspaper or radio and television station involved. No one seriously disputes the legitimacy or the importance of the objective sought to be secured by Section 11 (b) (of Republic Act No. 6646) in relation to Sections 90 and 92 (of the Omnibus Election Code). That objective is of special importance and urgency in a country which, like ours, is characterized by extreme disparity in income distribution between the economic elite and the rest of society, and by the prevalence of poverty, with the bulk of our population falling below that "poverty line." It is supremely important, however, to note that objective is not only a concededly legitimate one; it has also been given constitutional status by the terms of Article IX(C) (4) of the 1987 Constitution which provides as follows: Sec. 4. The Commission [on Elections] may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied) The Comelec has thus been expressly authorized by the Constitution to supervise or regulate the enjoyment or utilization of the franchises or permits for the operation of media of communication and information. The fundamental purpose of such "supervision or regulation" has been spelled out in the Constitution as the ensuring of "equal opportunity, time, and space, and the right to reply," as well as uniform and reasonable rates of charges for the use of such media facilities, in connection with "public information campaigns 1 and forums among candidates." It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of expression and freedom of the press (Article III [4], Constitution) has to be taken in conjunction with Article IX (C) (4) which may be seen to be a special provision applicable during a specific limited period i.e., "during the election period." It is difficult to overemphasize the special importance of the rights of freedom of speech and freedom of the press in a democratic polity, in particular when they relate to the purity and integrity of the electoral process itself, the process by which the people identify those who shall have governance over them. Thus, it is frequently said that these rights are accorded a preferred status in our constitutional hierarchy. Withal, the rights of free speech and free press are not unlimited rights for they are not the only important and relevant values even in the most democratic of polities. In our own society, equality of opportunity to proffer oneself for public office, without regard to the level of financial resources that one may have at one's disposal, is clearly an important value. One of the basic state policies given constitutional rank by Article II, 164 Election Laws Election Process and/or Proceedings
Section 26 of the Constitution is the egalitarian demand that "the State shall guarantee equal access to opportunities for public service 2 and prohibit political dynasties as may be defined by law." The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press. For supervision or regulation of the operations of media enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable rule is the general, time-honored one that a statute is presumed to be constitutional and that the party 3 asserting its unconstitutionality must discharge the burden of clearly and convincingly proving that assertion. Put in slightly different terms, there appears no present necessity to fall back upon basic principles relating to the police power of the State and the requisites for constitutionally valid exercise of that power. The essential question is whether or not the assailed legislative or administrative provisions constitute a permissible exercise of the power of supervision or regulation of the operations of communication and information enterprises during an election period, or whether such act has gone beyond permissible supervision or regulation of media operations so as to constitute unconstitutional repression of freedom of speech and freedom of the press. The Court considers that Section 11 (b) has not gone outside the permissible bounds of supervision or regulation of media operations during election periods. In the constitutional assaying of legislative provisions like Section 11 (b), the character and extent of the limitations resulting from the particular measure being assayed upon freedom of speech and freedom of the press are essential considerations. It is important to note that the restrictive impact upon freedom of speech and freedom of the press of Section 11 (b) is circumscribed by certain important limitations. Firstly, Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to election periods. By its Resolution No. 2328 dated 2 January 1992, the Comelec, acting under another specific grant of authority by the Constitution (Article IX [C] [9]), has defined the period from 12 January 1992 until 10 June 1992 as the relevant election period. Secondly, and more importantly, Section 11 (b) is limited in its scope of application. Analysis of Section 11 (b) shows that it purports to 4 apply only to the purchase and sale, including purchase and sale disguised as a donation, of print space and air time for "campaign or other political purposes." Section 11 (b) does not purport in any way to restrict the reporting by newspapers or radio or television stations of news or news-worthy events relating to candidates, their qualifications, political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions of belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect of candidates, their qualifications, and programs and so forth, so long at least as such comments, opinions and beliefs are not in fact advertisements for particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as reaching any report or commentary other coverage that, in responsible media, is not paid for by candidates for political office. We read Section 11 (b) as designed to cover only paid political advertisements of particular candidates. The above limitation in scope of application of Section 11 (b) that it does not restrict either the reporting of or the expression of belief or opinion or comment upon the qualifications and programs and activities of any and all candidates for office constitutes the critical 5 distinction which must be made between the instant case and that of Sanidad v. Commission on Elections. In Sanidad, the Court declared unconstitutional Section 19 of Comelec Resolution No. 2167 which provided as follows: Sec. 19. Prohibition on Columnists, Commentators or Announcers During the plebiscite campaign period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues. Resolution No. 2167 had been promulgated by the Comelec in connection with the plebiscite mandated by R.A. No. 6766 on the ratification or adoption of the Organic Act for the Cordillera Autonomous Region. The Court held that Resolution No. 2167 constituted a restriction of the freedom of expression of petitioner Sanidad, a newspaper columnist of the Baguio Midland Courier, "for no justifiable reason." The Court, through Medialdea, J., said: . . . [N]either Article, IX-C of the Constitution nor Section 11 [b], 2nd par. of R.A. 6646 can be construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates involved in the plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis." 6 (Emphasis partly in the original and partly supplied) There is a third limitation upon the scope of application of Section 11 (b). Section 11 (b) exempts from its prohibition the purchase by or donation to the Comelec of print space or air time, which space and time Comelec is then affirmatively required to allocate on a fair and equal basis, free of charge, among the individual candidates for elective public offices in the province or city served by the newspaper or radio or television station. Some of the petitioners are apparently apprehensive that Comelec might not allocate "Comelec time" or 165 Election Laws Election Process and/or Proceedings
"Comelec space" on a fair and equal basis among the several candidates. Should such apprehensions materialize, candidates who are in fact prejudiced by unequal or unfair allocations effected by Comelec will have appropriate judicial remedies available, so long at least as this Court sits. Until such time, however, the Comelec is entitled to the benefit of the presumption that official duty will be or is being 7 regularly carried out. It seems appropriate here to recall what Justice Laurel taught in Angara v. Electoral Commission that the possibility of abuse is no argument against the concession of the power or authority involved, for there is no power or authority in human society that is not susceptible of being abused. Should it be objected that the Comelec might refrain from procuring "Comelec time" and "Comelec space," much the same considerations should be borne in mind. As earlier noted, the Comelec is commanded by statute to buy or "procure" "Comelec time" and "Comelec space" in mass media, and it must be presumed that Comelec will carry out that statutory duty in this connection, and if it does fail to do so, once again, the candidate or candidates who feel aggrieved have judicial remedies at their disposal. The points that may appropriately be underscored are that Section 11 (b) does not cut off the flow of media reporting, opinion or commentary about candidates, their qualifications and platforms and promises. Newspaper, radio broadcasting and television stations remain quite free to carry out their regular and normal information and communication operations. Section 11 (b) does not authorize any intervention and much less control on the part of Comelec in respect of the content of the normal operations of media, nor in respect of the content of political advertisements which the individual candidates are quite free to present within their respective allocated Comelec time and Comelec space. There is here no "officious functionary of [a] repressive government" dictating what events or ideas reporters, broadcasters, editors or commentators may talk or write about or display on TV screens. There is here no censorship, whether disguised or otherwise. What Section 11 (b), viewed in context, in fact does is to limit paid partisan political advertisements to for a other than modern mass media, and to "Comelec time" and "Comelec space" in such mass media. Section 11 (b) does, of course, limit the right of free speech and of access to mass media of the candidates themselves. The limitation, however, bears a clear and reasonable connection with the constitutional objective set out in Article IX(C) (4) and Article II (26) of the Constitution. For it is precisely in the unlimited purchase of print space and radio and television time that the resources of the financially affluent candidates are likely to make a crucial difference. Here lies the core problem of equalization of the situations of the candidates with deep pockets and the candidates with shallow or empty pockets that Article IX(C) (4) of the Constitution and Section 11 (b) seek to address. That the statutory mechanism which Section 11 (b) brings into operation is designed and may be expected to bring about or promote equal opportunity, and equal time and space, for political candidates to inform all and sundry about themselves, cannot be gainsaid. My learned brother in the Court Cruz, J. remonstrates, however, that "t[he] financial disparity among the candidates is a fact of life that cannot be corrected by legislation except only by the limitation of their respective expenses to a common maximum. The flaw in the prohibition under challenge is that while the rich candidate is barred from buying mass media coverage, it nevertheless allows him to spend his funds on other campaign activities also inaccessible to his strained rival." True enough Section 11 (b) does not, by itself or in conjunction with Sections 90 and 92 of the Omnibus Election Code, place political candidates on complete and perfect equality inter se without regard to their financial affluence or lack thereof. But a regulatory measure that is less than perfectly comprehensive or which does not completely obliterate the evil sought to be remedied, is not for that reason alone constitutionally infirm. The Constitution does not, as it cannot, exact perfection in governmental regulation. All it requires, in accepted doctrine, is that the regulatory measure under challenge bear a reasonable nexus with the constitutionally sanctioned objective. That the supervision or regulation of communication and information media is not, in itself, a forbidden modality is made clear by the Constitution itself in Article IX (C) (4). It is believed that, when so viewed, the limiting impact of Section 11 (b) upon the right to free speech of the candidates themselves may be seen to be not unduly repressive or unreasonable. For, once again, there is nothing in Section 11 (b) to prevent media reporting of and commentary on pronouncements, activities, written statements of the candidates themselves. All other fora remain accessible to candidates, even for political advertisements. The requisites of fairness and equal opportunity are, after all, designed to benefit the candidates themselves. Finally, the nature and characteristics of modern mass media, especially electronic media, cannot be totally disregarded. Realistically, the only limitation upon the free speech of candidates imposed is on the right of candidates to bombard the helpless electorate with paid advertisements commonly repeated in the mass media ad nauseam. Frequently, such repetitive political commercials when fed into the electronic media themselves constitute invasions of the privacy of the general electorate. It might be supposed that it is easy enough for a person at home simply to flick off his radio of television set. But it is rarely that simple. For the candidates with deep pockets may purchase radio or television time in many, if not all, the major stations or channels. Or they may directly or indirectly own or control the stations or channels themselves. The contemporary reality in the Philippines is that, in a very real sense, listeners and viewers constitute a "captive audience." 8 The paid political advertisement introjected into the electronic media and repeated with mind-deadening frequency, are commonly intended and crafted, not so much to inform and educate as to condition and manipulate, not so much to provoke rational and objective appraisal of candidates' qualifications or programs as to appeal to the non-intellective faculties of the captive and passive audience. The right of the general listening and viewing public to be free from such intrusions and their subliminal effects is at least as important as the right of candidates to advertise themselves through modern electronic media and the right of media enterprises to maximize their revenues from the marketing of "packaged" candidates. WHEREFORE, the Petitions should be, as they are hereby, DISMISSED for lack of merit. No pronouncement as to costs. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 164858 November 16, 2006 HENRY P. LANOT, substituted by MARIO S. RAYMUNDO, Petitioner, CHARMIE Q. BENAVIDES, Petitioner-Intervenor, vs. COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO, Respondents. DECISION CARPIO, J.: The Case This is a petition for certiorari assailing the Resolution dated 20 August 2004, the Resolution dated 21 May 2004 of the Commission on Elections (COMELEC) En Banc, and the Advisory dated 10 4 May 2004 of COMELEC Chairman Benjamin S. Abalos ("Chairman Abalos") in SPA No. 04-288. The 10 May 2004 Advisory of Chairman Abalos enjoined Acting National Capital Region (NCR) Regional Director Esmeralda Amora5 Ladra ("Director Ladra") from implementing the COMELEC First Divisions 5 May 2004 Resolution. The 5 May 2004 Resolution ordered (1) the disqualification of respondent Vicente P. Eusebio ("Eusebio") as a candidate for Pasig City Mayor in the 10 May 2004 elections, (2) the deletion of Eusebios name from the certified list of candidates for Pasig City Mayor, (3) the consideration of votes for Eusebio as stray, (4) the non-inclusion of votes for Eusebio in the canvass, and (5) the filing of the necessary information against Eusebio by the COMELEC Law Department. The 21 May 2004 Order of the COMELEC En Banc set aside the 11 May 2004 Order of the COMELEC En Banc and directed the Pasig City Board of Canvassers to proclaim the winning candidate for Pasig City Mayor without prejudice to the final outcome of Eusebios disqualification case. The 11 May 2004 Order suspended the proclamation of Eusebio in the event that he would receive the winning number of votes. Finally, the 20 August 2004 COMELEC En Banc resolution set aside the 5 May 2004 Resolution of the COMELEC First Division and nullified the corresponding order. The COMELEC En Banc referred the case to the COMELEC Law Department to determine whether Eusebio actually committed the acts subject of the petition for disqualification. The Facts On 19 March 2004, Henry P. Lanot ("Lanot"), Vener Obispo ("Obispo"), Roberto Peralta ("Peralta"), Reynaldo dela Paz ("dela Paz"), 8 Edilberto Yamat ("Yamat"), and Ram Alan Cruz ("Cruz") (collectively, "petitioners"), filed a petition for disqualification under Sections 68 and 80 of the Omnibus Election Code against Eusebio before the COMELEC. Lanot, Obispo, and Eusebio were candidates for Pasig City Mayor, while Peralta, dela Paz, Yamat, and Cruz were candidates for Pasig City Councilor in the 10 May 2004 elections. The case was docketed as SPA (NCR-RED) No. C04-008. Petitioners alleged that Eusebio engaged in an election campaign in various forms on various occasions outside of the designated campaign period, such as (1) addressing a large group of people during a medical mission sponsored by the Pasig City government; (2) uttering defamatory statements against Lanot; (3) causing the publication of a press release predicting his victory; (4) installing billboards, streamers, posters, and stickers printed with his surname across Pasig City; and (5) distributing shoes to schoolchildren in Pasig public schools to induce their parents to vote for him. In his Answer filed on 29 March 2004, Eusebio denied petitioners allegations and branded the petition as a harassment case. Eusebio further stated that petitioners evidence are merely fabricated. Director Ladra conducted hearings on 2, 5 and 7 April 2004 where she received the parties documentary and testimonial evidence. 10 Petitioners submitted their memorandum on 15 April 2004, while Eusebio submitted his memorandum [11] on 16 April 2004. 167 Election Laws Election Process and/or Proceedings
9 7 6 2 3 1
The Ruling of the Regional Director On 4 May 2004, Director Ladra submitted her findings and recommendations to the COMELEC. Director Ladra recommended that: WHEREFORE, in view of the foregoing, undersigned respectfully recommends that the instant petition be GRANTED. Consequently, pursuant to Section 68 (a) and (e) of the Omnibus Election Code, respondent VICENTE P. EUSEBIO shall be DISQUALIFIED to run for the position of Mayor, Pasig City for violation of Section 80 of the Omnibus Election Code. Further, undersigned respectfully recommends that the instant case be referred to the Law Department for it to conduct a preliminary investigation on the possible violation by the respondent of Sec. 261 (a) of the Omnibus Election Code. [12] The Ruling of the COMELEC In a resolution dated 5 May 2004, or five days before the elections, the COMELEC First Division adopted the findings and recommendation of Director Ladra. The dispositive portion of the resolution read: WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) RESOLVED as it hereby RESOLVES to ORDER: 1. the disqualification of respondent VICENTE P. EUSEBIO from being a candidate for mayor of Pasig City in the May 10, 2004 elections; 2. the Election Officers of District I and District II of Pasig City to DELETE and CANCEL the name of respondent VICENTE P. EUSEBIO from the certified list of candidates for the City Offices of Pasig City for the May 10, 2004 elections; 3. the Board of Election Inspectors of all the precincts comprising the City of Pasig not to count the votes cast for respondent VICENTE EUSEBIO, the same being cast for a disqualified candidate and therefore must be considered stray; 4. the City Board of Canvassers of Pasig City not to canvass the votes erroneously cast for the disqualified candidate respondent VICENTE P. EUSEBIO, in the event that such votes were recorded in the election returns[;] 5. the Regional Director of NCR, and the Election Officers of Pasig City to immediately implement the foregoing directives[;] 6. the Law Department through its Director IV, Atty. ALIODEN DALAIG to file the necessary information against Vicente P. Eusebio before the appropriate court. This Resolution is immediately executory unless restrained by the Commission En Banc. [13] (Emphasis in the original) In a Very Urgent Advisory [14] dated 8 May 2004, or two days before the elections, Chairman Abalos informed the following election officers of the resolution of the COMELEC First Division: Director Ladra; Atty. Romeo Alcazar, Acting Election Officer of the First District of Pasig City; Ms. Marina Gerona, Acting Election Officer of the Second District of Pasig City; and all Chairmen and Members of the Board of Election Inspectors and City Board of Canvassers of Pasig City (collectively, "pertinent election officers"). Director Ladra repeated the dispositive portion of the 5 May 2004 resolution in a Memorandum [15] which she issued the next day. On 9 May 2004, Eusebio filed a motion for reconsideration [16] of the resolution of the COMELEC First Division. On election day itself, Chairman Abalos issued the first of the three questioned COMELEC issuances. In a memorandum, Chairman Abalos enjoined Director Ladra from implementing the COMELEC First Divisions 5 May 2004 resolution due to Eusebios motion for reconsideration. The 10 May 2004 memorandum stated: Considering the pendency of a Motion for Reconsideration timely filed by Respondent, Vicente P. Eusebio[,] with the Commission En Banc, you are hereby ENJOINED from implementing the Resolution promulgated on May 5, 2004, in the x x x case until further orders from the Commission En Banc. [17] (Emphasis in the original) On 11 May 2004, the day after the elections, petitioners Lanot, Peralta, dela Paz, Yamat, and Cruz filed before the COMELEC En Banc a motion to suspend the counting and canvassing of votes and the proclamation of the winning mayoral candidate for Pasig City. [18] Without waiting for Eusebios opposition, the COMELEC En Banc partially denied the motion on the same day. The dispositive portion of the Order declared: WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the motion for suspension of the counting of votes and the canvassing of votes. However, in order not to render moot and academic the issues for final disposition by the En Banc and considering that on the basis of the Resolution of the FIRST DIVISION, the evidence of respondents guilt is strong, the Commission En Banc 168 Election Laws Election Process and/or Proceedings
hereby ORDERS to SUSPEND, UNTIL FURTHER ORDERS OF THE COMMISSION, the proclamation of respondent in the event he receives the winning number of votes. [19] (Emphasis in the original) On 12 May 2004, Eusebio filed his opposition to petitioners motion. On 21 May 2004, the COMELEC En Banc issued the second questioned issuance. The order quoted from the motion for advisory opinion of the Pasig City Board of Canvassers which reported that 98% of the total returns of Pasig City had been canvassed and that there were only 32 uncanvassed returns involving 6,225 registered voters. Eusebio had 119,693 votes while Lanot had 108,941 votes. Thus, the remaining returns would not affect Eusebios lead over Lanot. The COMELEC En Banc stated its "established policy" to "expedite the canvass of votes and proclamation of winning candidates to ease the post election tension and without prejudice to [its] action in [the] x x x case" [20] and resolved to declare Eusebio as Pasig City Mayor. The dispositive portion of the 21 May 2004 Order read: WHEREFORE, this Commission RESOLVED, as it hereby RESOLVES, to LIFT AND SET ASIDE the order suspending the proclamation of the respondent. FURTHER, the City Board of Canvassers is DIRECTED to complete [the] canvass and immediately proceed with the proclamation of the winning candidate for Mayor of Pasig City without prejudice to the final outcome of the case entitled, "Henry P. Lanot, et al., vs. Vicente Eusebio[, "] docketed as SPA No. 04-288. [21] (Emphasis in the original) Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based on the 21 May 2004 Order. On 25 June and 6 July 2004, the COMELEC En Banc conducted hearings on Eusebios motion for reconsideration of the 5 May 2004 COMELEC First Division resolution. On 6 August 2004, Lanot filed a motion to annul Eusebios proclamation and to order his proclamation instead. [22] On 20 August 2004, the COMELEC En Banc promulgated the third questioned issuance. The COMELEC En Banc invoked Section 1 of COMELEC Resolution No. 2050 ("Resolution 2050") and this Courts rulings in Albaa v. COMELEC, [23] Lonzanida v. COMELEC, [24] and Sunga v. COMELEC [25] in justifying the annulment of the order to disqualify Eusebio and the referral of the case to the Law Department for preliminary investigation. The dispositive portion stated: WHEREFORE, PREMISES CONSIDERED, the resolution promulgated by the First Division dated 8 May 2004 on the above-captioned case, affirming the recommendation of the Regional Director (NCR) to disqualify herein respondent, is hereby SET ASIDE, and the corresponding ORDER issued thereunder, ANNULLED. Accordingly, this case is referred to the Law Department for investigation to finally determine [whether] the acts complained of were in fact committed by respondent Eusebio. [26] (Emphasis in the original) Hence, this petition. The Issues Lanot alleged that as the COMELECs issuances are not supported by substantial evidence and are contrary to law and settled jurisprudence, the COMELEC committed grave abuse of discretion amounting to lack of or excess of jurisdiction. Lanot raised the following issues before this Court: A. WHETHER PUBLIC RESPONDENT COMELEC, IN ISSUING [ITS] RESOLUTION DATED AUGUST 20, 2004, ACTED WITH GRAVE ABUSE OF DISCRETION OR LACK OR IN EXCESS OF JURISDICTION 1. by setting aside the Resolution of Disqualification promulgated by its First Division on May 5, 2004 affirming the recommendation of the Regional Election Director (NCR) to disqualify Respondent, and by annulling the order issued thereunder, a) erroneously, whimsically and maliciously ADOPTED and APPLIED Sections 1 and 2 of Rule 2050 to this case, b) capriciously VIOLATED COMELEC Resolution 6452 and Sec. 6, R.A. 6646, c) erroneously, whimsically and capriciously ARROGATED unto themselves a quasi-judicial legislation, and d) erroneously and maliciously MISAPPLIED the Albaa and Sunga cases to the case at bar; 2. by referring the case to the Law Department for investigation, it illegally, erroneously and maliciously DISMISSED the electoral aspect of the case and whimsically VIOLATED Resolution 6452 and Section 6 of RA 6646;
169
3. by disregarding the Order of disqualification, it erroneously and whimsically IGNORED and DISREGARDED the inchoate right of petitioner as the winning party. B. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION OR IN EXCESS OR LACK OF JURISDICTION IN ISSUING ITS RESOLUTION DATED MAY 21, 2004 1. by lifting and setting aside the Order of suspension of proclamation by winning candidate issued on May 11, 2004, it erroneously and intentionally and whimsically DISREGARDED the strong evidence of guilt of Respondent to warrant the suspension of his proclamation and erroneously and capriciously VIOLATED Resolution of May 11, 2004. C. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE COMELEC ACTED WITH GRAVE ABUSE OF POWER, AUTHORITY OR DISCRETION OR LACK OR IN EXCESS OF JURISDICTION 1. by unilaterally enjoining the implementation of the Order of Respondents disqualification despite the condition therein that it could only be restrained by the Commission En Banc, and whether or not he illegally, erroneously and blatantly whimsically grabbed the exclusive adjudicatory power of the Commission En Banc. D. WHETHER RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CAPRICIOUSLY DISREGARDING THE RESOLUTION OF MAY 5, 2004 AS ALREADY FINAL AND EXECUTED AND IN FAILING TO ORDER THE PROCLAMATION OF PETITIONER. E. a) WHETHER THERE ARE PREPONDERANT EVIDENCE TO WARRANT RESPONDENT EUSEBIOS DISQUALIFICATION. b) WHETHER RESPONDENT EUSEBIO SHOULD BE DEEMED DISQUALIFIED WITH FOUR (4) AFFIRMATIVE VOTES OF COMMISSIONERS, TWO (2) VOTES FROM COMMISSIONERS BORRA AND GARCILLANO WHO VOTED FOR THE DISQUALIFICATION IN THE MAY 5, 2004 R E S O L U T I O N (ANNEX "B") AND TWO (2) VOTES FROM COMMISSIONERS TUAZON, JR. AND SADAIN WHO VOTED TO DISQUALIFY HIM IN THEIR DISSENTING OPINION (ANNEX "A-1") SHOULD REFERRAL OF THE CASE TO THE LAW DEPARTMENT BY RESPONDENT COMELEC BE DECLARED A PATENT NULLITY. F. IN CASE OF DISQUALIFICATION OF RESPONDENT EUSEBIO, WHETHER PETITIONER LANOT CAN BE PROCLAIMED AND ALLOWED TO SIT AS MAYOR-ELECT, AND WHETHER THE DOCTRINES IN TOPACIO, CODILLA, JR., LABO AND OTHERS APPLY IN THIS CASE. [27] The Ruling of the Court The petition has no merit. Parties to the Present Petition On 13 April 2005, during the pendency of this case, an unidentified person shot and killed Lanot in Pasig City. It seemed that, like an endangered specie, the disqualification case would be extinguished by Lanots death. However, on 27 April 2005, Lanots counsel manifested, over Eusebios objections, that Mario S. Raymundo ("Raymundo"), a registered voter and former Mayor of Pasig City, is Lanots substitute in this case. Also, on 25 August 2005, Charmie Q. Benavides ("Benavides"), a Pasig City mayoral candidate and the third placer in the 10 May 2004 elections, filed a petition-in-intervention. Benavides asked whether she could be proclaimed Pasig City Mayor because she is the surviving qualified candidate with the highest number of votes among the remaining candidates. The law and the COMELEC rules have clear pronouncements that the electoral aspect of a disqualification case is not rendered inutile by the death of petitioner, provided that there is a proper substitution or intervention of parties while there is a pending case. On Raymundos substitution, any citizen of voting age is competent to continue the action in Lanots stead. [28] On Benavides intervention, Section 6 of Republic Act No. 6646, or the Electoral Reforms Law of 1987 ("Electoral Reforms Law of 1987"), allows intervention in proceedings for disqualification even after elections if no final judgment has been rendered. Although Eusebio was already proclaimed as Pasig City Mayor, Benavides could still intervene, as there was still no final judgment in the proceedings for disqualification. [29] The case for disqualification exists, and survives, the election and proclamation of the winning candidate because an outright dismissal will unduly reward the challenged candidate and may even encourage him to employ delaying tactics to impede the resolution of the disqualification case until after he has been proclaimed. [30] The exception to the rule of retention of jurisdiction after proclamation applies when the challenged candidate becomes a member of the House of Representatives or of the Senate, where the appropriate electoral tribunal would have jurisdiction. There is no law or jurisprudence which says that intervention or substitution may only be done 170 Election Laws Election Process and/or Proceedings
prior to the proclamation of the winning candidate. A substitution is not barred by prescription because the action was filed on time by the person who died and who is being substituted. The same rationale applies to a petition-in-intervention. COMELECs Grave Abuse of Discretion Propriety of Including Eusebios Name in the Pasig City Mayoral Candidates and of the Counting of Votes and Canvassing of Election Returns In its 5 May 2004 resolution, the COMELEC First Division ordered the pertinent election officials to delete and cancel Eusebios name from the certified list of Pasig City mayoral candidates, not to count votes cast in Eusebios favor, and not to include votes cast in Eusebios favor in the canvass of election returns. Eusebio filed a motion for reconsideration of the resolution on 9 May 2004. Hence, COMELEC Chairman Abalos issued a memorandum on 10 May 2004 which enjoined the pertinent election officials from implementing the 5 May 2004 resolution. In a Resolution dated 11 May 2004, the COMELEC En Banc subsequently ratified and adopted Chairman Abalos 10 May 2004 memorandum when it denied Lanots motion to suspend the counting of votes and canvassing of election returns. Lanot claims that Chairman Abalos whimsically grabbed the adjudicatory power of the COMELEC En Banc when he issued the 10 May 2004 memorandum. Lanot asserts that the last sentence in the dispositive portion of the COMELEC First Divisions 5 May 2004 Resolution, "[t]his Resolution is immediately executory unless restrained by the Commission En Banc," should have prevented Chairman Abalos from acting on his own. Lanots claim has no basis, especially in light of the 11 May 2004 Resolution of the COMELEC En Banc. The COMELEC En Bancs explanation is apt: Suspension of these proceedings is tantamount to an implementation of the Resolution of the FIRST DIVISION which had not yet become final and executory by reason of the timely filing of a Motion for Reconsideration thereof. A disposition that has not yet attained finality cannot be implemented even through indirect means. [31] Moreover, Chairman Abalos 10 May 2004 memorandum is merely an advisory required by the circumstances at the time. Eusebio filed a motion for reconsideration on 9 May 2004, and there was not enough time to resolve the motion for reconsideration before the elections. Therefore, Eusebio was not yet disqualified by final judgment at the time of the elections. Section 6 of the Electoral Reforms Law of 1987 provides that "[a] candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted." Under Section 13 of the COMELEC Rules of Procedure, a decision or resolution of a Division in a special action becomes final and executory after the lapse of fifteen days following its promulgation while a decision or resolution of the COMELEC En Banc becomes final and executory after five days from its promulgation unless restrained by this Court. Propriety of the Lifting of the Suspension of Eusebios Proclamation In the same 11 May 2004 Resolution, the COMELEC En Banc ordered the suspension of Eusebios proclamation in the event he would receive the winning number of votes. Ten days later, the COMELEC En Banc set aside the 11 May 2004 order and directed the Pasig City Board of Canvassers to proclaim Eusebio as the winning candidate for Pasig City Mayor. The COMELEC relied on Resolutions 7128 and 7129 [32] to justify the counting of Eusebios votes and quoted from the Resolutions as follows: Resolution No. 7128 xxxx NOW THEREFORE, the Commission RESOLVED, as it hereby RESOLVES, to adopt certain policies and to direct all Board of Canvassers, as follows: 1. to speed up its canvass and proclamation of all winning candidates except under the following circumstances: a. issuance of an order or resolution suspending the proclamation; b. valid appeal[s] from the rulings of the board in cases where appeal is allowed and the subject appeal will affect the resu lts of the elections; x x x x. Resolution No. 7129 171 Election Laws Election Process and/or Proceedings
xxxx NOW THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code and other elections laws, has RESOLVED, as it hereby RESOLVES, to refrain from granting motions and petitions seeking to postpone proclamations by the Board of Canvassers and other pleadings with similar purpose unless they are grounded on compelling reas ons, supported by convincing evidence and/or violative of the canvassing procedure outlined in Resolution No. 6669. We agree with Eusebio that the COMELEC En Banc did not commit grave abuse of discretion in issuing its 21 May 2004 order. The COMELEC has the discretion to suspend the proclamation of the winning candidate during the pendency of a disqualification case when evidence of his guilt is strong. [33] However, an order suspending the proclamation of a winning candidate against whom a disqualification case is filed is merely provisional in nature and can be lifted when warranted by the evidence. [34] Propriety of the Dismissal of the Disqualification Case and of the Referral to the COMELEC Law Department Lanot filed the petition for disqualification on 19 March 2004, a little less than two months before the 10 May 2004 elections. Director Ladra conducted hearings on the petition for disqualification on 2, 5 and 7 April 2004. Director Ladra submitted her findings and recommendations to the COMELEC on 4 May 2004. The COMELEC First Division issued a resolution adopting Director Ladras recommendations on 5 May 2004. Chairman Abalos informed the pertinent election officers of the COMELEC First Divisions resolution through an Advisory dated 8 May 2004. Eusebio filed a Motion for Reconsideration on 9 May 2004. Chairman Abalos issued a memorandum to Director Ladra on election day, 10 May 2004, and enjoined her from implementing the 5 May 2004 COMELEC First Division resolution. The petition for disqualification was not yet finally resolved at the time of the elections. Eusebios votes were counted and canvassed, after which Eusebio was proclaimed as the winning candidate for Pasig City Mayor. On 20 August 2004, the COMELEC En Banc set aside the COMELEC First Divisions order and referred the case to the COMELEC Law Department. In its 20 August 2004 resolution, the COMELEC En Banc relied heavily on the timing of the filing of the petition. The COMELEC En Banc invoked Section 1 of Resolution No. 2050, which states: 1. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds specifically enumerated under Section 68 of the Omnibus Election Code, filed directly with the Commission before an election in which the respondent is a candidate, shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact been committed. Where the inquiry by the Commission results in a finding before election, that the respondent candidate did in fact commit the acts complained, the Commission shall order the disqualification of the respondent candidate from continuing as such candidate. In case such complaint was not resolved before the election, the Commission may motu proprio, or on motion of any of the parties, refer the complaint to the Law Department of the Commission as the instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws. Such recourse may be availed of irrespective of whether the respondent has been elected or has lost in the election. (Emphasis added) The COMELEC also quoted from Sunga v. COMELEC to justify its referral of the disqualification case to its Law Department. x x x We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or directing the dismissal of a disqualification case filed before the election but which remained unresolved after the election. What the Resolution mandates in such a case is for the Commission to refer the complaint to its Law Department for investigation to determine whether the acts complained of have in fact been committed by the candidate sought to be disqualified. The findings of the Law Department then become the basis for disqualifying the erring candidate. This is totally different from the other two situations contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation of winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case. [35] For his part, Eusebio asserts that the COMELEC has the prerogative to refer the disqualification case to its Law Department. Thus, no grave abuse of discretion can be imputed to the COMELEC. Moreover, the pendency of a case before the Law Department for purposes of preliminary investigation should be considered as continuation of the COMELECs deliberations. However, contrary to the COMELEC En Bancs reliance on Resolution No. 2050 in its 20 August 2004 resolution, the prevailing law on the matter is Section 6 of the Electoral Reforms Law of 1987. Any rule or action by the COMELEC should be in accordance with the prevailing law. Section 6 of the Electoral Reforms Law of 1987 provides: 172 Election Laws Election Process and/or Proceedings
Section 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis added) Moreover, this Courts ruling in Sunga was further explained in Bagatsing v. COMELEC, [36] thus: The COMELEC in Sunga obviously misapplied Resolution No. 2050 in dismissing the disqualification case therein simply because it remained unresolved before the election and, in lieu thereof, referring it to its Law Department for possible criminal prosecution of the respondent for violation of the election laws. Notably, there is nothing in paragraph 1 of Resolution No. 2050 which directs the dismissal of the disqualification case not resolved before the election. It says the COMELEC "may motu prop[r]io or on motion of any of the parties, refer the complaint to the Law Department of the Commission as an instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws." The referral to the Law Department is discretionary on the part of the COMELEC and in no way may it be interpreted that the COMELEC will dismiss the disqualification case or will no longer continue with the hearing of the same. The reason for this is that a disqualification case may have two (2) aspects, the administrative, which requires only a preponderance of evidence to prove disqualification, and the criminal, which necessitates proof beyond reasonable doubt to convict. Where in the opinion of the COMELEC, the acts which are grounds for disqualification also constitute a criminal offense or offenses, referral of the case to the Law Department is proper. xxxx It bears stressing that the Court in Sunga recognized the difference between a disqualification case filed before and after an election when, as earlier mentioned, it stated that the referral of the complaint for disqualification where the case is filed before election "is totally different from the other two situations contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation of winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case." Indeed, the 20 August 2004 resolution of the COMELEC En Banc betrayed its misunderstanding of the two aspects of a disqualification case. The electoral aspect of a disqualification case determines whether the offender should be disqualified from being a candidate or from holding office. Proceedings are summary in character and require only clear preponderance of evidence. An erring candidate may be disqualified even without prior determination of probable cause in a preliminary investigation. The electoral aspect may proceed independently of the criminal aspect, and vice-versa. The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate for an election offense. The prosecutor is the COMELEC, through its Law Department, which determines whether probable cause exists. [37] If there is probable cause, the COMELEC, through its Law Department, files the criminal information before the proper court. Proceedings before the proper court demand a full-blown hearing and require proof beyond reasonable doubt to convict. [38] A criminal conviction shall result in the disqualification of the offender, which may even include disqualification from holding a future public office. [39] The two aspects account for the variance of the rules on disposition and resolution of disqualification cases filed before or after an election. When the disqualification case is filed before the elections, the question of disqualification is raised before the voting public. If the candidate is disqualified after the election, those who voted for him assume the risk that their votes may be declared stray or invalid. There is no such risk if the petition is filed after the elections. [40] The COMELEC En Banc erred when it ignored the electoral aspect of the disqualification case by setting aside the COMELEC First Divisions resolution and referring the entire case to the COMELEC Law Department for the criminal aspect. Moreover, the COMELEC En Bancs act and Eusebios assertions lose sight of the provisions of Resolution No. 6452 ("Resolution 6452"), "Rules Delegating to COMELEC Field Officials the Hearing and Reception of Evidence of Disqualification Cases Filed in Connection with the May 10, 2004 National and Local Elections; Motu Proprio Actions and Disposition of Disqualification Cases," promulgated on 10 December 2003. The pertinent portions of Resolution 6452 provide: Section 1. Delegation of reception of evidence. The Commission hereby designates its field officials who are members of the Philippine Bar to hear and receive evidence in the following petitions: xxx c. Petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code and disqualify a candidate for lack of qualifications or possessing same grounds for disqualification; xxx 173 Election Laws Election Process and/or Proceedings
Sec. 2. Suspension of the Comelec Rules of Procedure. In the interest of justice and in order to attain speedy disposition of cases, the Comelec Rules of Procedure or any portion thereof inconsistent herewith is hereby suspended. Sec. 3. Where to file petitions. The petitions shall be filed with the following offices of the Commission: xxx b. For x x x local positions including highly-urbanized cities, in the National Capital Region, with the Regional Election Director of said region; xxx PROVIDED, in cases of highly-urbanized cities the filing of petitions for disqualification shall be with the Office of the Regional Election Directors. x x x xxxx The Regional Election Directors concerned shall hear and receive evidence strictly in accordance with the procedure and timeliness herein provided. Sec. 5. Procedure in filing petitions. For purposes of the preceding section, the following procedure shall be observed: xxxx C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION 1. The verified petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code x x x may be filed any day after the last day [of] filing of certificates of candidacy but not later than the date of proclamation. 2. The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code shall be filed in ten (10) legible copies with the concerned office mentioned in Sec. 3 personally or through a duly authorized representative by any citizen of voting age, or duly registered political party, organization or coalition of political parties against any candidate who, in an action or protest in which he is a party, is declared by final decision of a competent court guilty of, or found by the Commission of: 2.a having given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; or xxx 2.d having solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104 of the Omnibus Elections Code; or 2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v and cc sub-paragraph 6 of the Omnibus Election Code, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. xxxx Indeed, what the COMELEC did in its 20 August 2004 resolution was contrary to "the interest of justice and x x x speedy disposition of cases." Resolution No. 2050 referring the electoral aspect to the Law Department is procedurally inconsistent with Resolution 6452 delegating reception of evidence of the electoral aspect to the Regional Election Director. The investigation by the Law Department under Resolution No. 2050 produces the same result as the investigation under Resolution 6452 by the Regional Election Director. Commissioner Tuasons dissent underscored the inconsistency between the avowed purpose of Resolution 6452 and the COMELEC En Bancs 20 August 2004 resolution: x x x [T]he preliminary investigation for purposes of finding sufficient ground for [Eusebios] disqualification, has already been accomplished by the RED-NCR prior to the election. There also appears no doubt in my mind, that such recommendation of the investigating officer, RED-NCR, was substantive and legally sound. The First Division agreed with the result of the investigation/recommendation, with the facts of the case clearly distilled in the assailed resolution. This, I likewise found to be in accord with our very own rules and the jurisprudential doctrines aforestated. There could be no rhyme and reason then to dismiss the electoral 174 Election Laws Election Process and/or Proceedings
aspect of the case (i.e., disqualification) and refer the same to the Law Department for preliminary investigation. As held in Sunga, clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon. The criminal aspect of the case is an altogether different issue. Sunga said the reason is obvious: A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law. [41] We agree with Lanot that the COMELEC committed grave abuse of discretion when it ordered the dismissal of the disqualification case pending preliminary investigation of the COMELEC Law Department. A review of the COMELEC First Divisions 5 May 2004 resolution on Eusebios disqualification is in order, in view of the grave abuse of discretion committed by the COMELEC En Banc in its 20 August 2004 resolution. Rightful Pasig City Mayor Eusebios Questioned Acts We quote the findings and recommendations of Director Ladra as adopted by the COMELEC First Division: The questioned acts of [Eusebio] are as follows: 1) The speech uttered on February 14, 2004 during the meeting dubbed as "Lingap sa Barangay" in Barangay San Miguel, Pasig City wherein [Eusebio] allegedly asked the people to vote for him and solicited for their support x x x: xxxx 2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig City wherein [Eusebio] again allegedly uttered defamatory statements against co-[candidate] Lanot and campaigned for his (respondents) and his groups candidacy. xxxx 3) He caused to be published in leading newspapers about a survey allegedly done by Survey Specialist, Inc. showing him to be leading in the mayoralty race in Pasig City. xxxx 4) He paid a political advertisement in the Philippine Free Press in the amount of P193,660.00 as published in its issue dated February 7, 2004. xxxx 5) The display of billboards containing the words "Serbisyo Eusebio" and "ST" which means "Serbisyong Totoo" before the start of the campaign period. xxxx 6) Posters showing the respondent and his running mate Yoyong Martirez as well those showing the name "KA ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection with the dengue project were posted everywhere even before the start of the campaign period. xxxx 7) Streamers bearing the words "Pasig City is for PEACE" were likewise displayed with the two letters "E" prominently written. xxxx 175 Election Laws Election Process and/or Proceedings
8) Stickers of [Eusebio] were likewise pasted all over the city before the start of the campaign period. xxxx 9) [Eusebio] engaged in vote-buying by distributing shoes to the students while telling the parents that by way of gratitude, they should vote for him. x x x x (Emphasis in the original) [42] Eusebio argues that: (1) Lanot is in estoppel for participating in the proceedings before the COMELEC Law Department; (2) Lanot abandoned the present petition also because of his participation in the proceedings before the COMELEC Law Department; and (3) Lanot is guilty of forum-shopping. These arguments fail for lack of understanding of the two aspects of disqualification cases. The proceedings before the COMELEC Law Department concern the criminal aspect, while the proceedings before this Court concern the electoral aspect, of disqualification cases. The proceedings in one may proceed independently of the other. Eusebio is correct when he asserts that this Court is not a trier of facts. What he overlooks, however, is that this Court may review the factual findings of the COMELEC when there is grave abuse of discretion and a showing of arbitrariness in the COMELECs decision, order or resolution. [43] We find that the COMELEC committed grave abuse of discretion in issuing its 20 August 2004 resolution. Our review of the factual findings of the COMELEC, as well as the law applicable to this case, shows that there is no basis to disqualify Eusebio. Director Ladra recommended the disqualification of Eusebio "for violation of Section 80 of the Omnibus Election Code." The COMELEC First Division approved Director Ladras recommendation and disqualified Eusebio. Section 80 of the Omnibus Election Code provides: 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 VicePresidential election. (Emphasis supplied) What Section 80 of the Omnibus Election Code prohibits is "an election campaign or partisan political activity" by a "candidate" "outside" of the campaign period. Section 79 of the same Code defines "candidate," "election campaign" and "partisan political activity" as follows: SECTION 79. Definitions. As used in this Code: (a) The term "candidate" refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties; (b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate. The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan election activity.
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Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article. Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the campaign period. The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who "has filed a certificate of candidacy" to an elective public office. Unless one has filed his certificate of candidacy, he is not a "candidate." The third element requires that the campaign period has not started when the election campaign or partisan political activity is committed. Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day. Before such last day, there is no "particular candidate or candidates" to campaign for or against. On the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to apply since Section 80 covers only acts done "outside" the campaign period. Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last day, which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy. This is perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last day or close to the last day. There is no dispute that Eusebios acts of election campaigning or partisan political activities were committed outside of the campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a "candidate" when he committed those acts before the start of the campaign period on 24 March 2004. Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan political activities prior to the start of the campaign period on 24 March 2004? Section 11 of RA 8436 provides: SECTION 11. Official Ballot. The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot shall be provided. Both sides of the ballots may be used when necessary. For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice-President, Senators and candidates under the party-list system as well as petitions for registration and/or manifestation to participate in the party-list system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998. The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens arms of the Commission may assign watchers in the printing, storage and distribution of official ballots. To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot. 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The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct. [44] (Emphasis added) Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the printing of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee: SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national officials? THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods. SENATOR GONZALES. But the moment one files a certificate of candidacy, hes already a candidate, and there are many prohibited acts on the part of candidate. THE CHAIRMAN (REP. TANJUATCO). Unless we. . . . SENATOR GONZALES. And you cannot say that the campaign period has not yet began [sic]. THE CHAIRMAN (REP. TANJUATCO). If we dont provide that the filing of the certificate will not bring about ones being a candidate. SENATOR GONZALES. If thats a fact, the law cannot change a fact. THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in that official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this machine readable ballots. So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate version. THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman. xxxx SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon being a candidate? THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time to print the ballots, this provision does not intend to change the campaign periods as presently, or rather election periods as presently fixed by existing law. THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition. THE CHAIRMAN (REP. TANJUATCO). Thats right. THE ACTING CHAIRMAN (SEN. FERNAN). Okay. THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days also. So that is election period already. But he will still not be considered as a candidate. [45] (Emphasis added) Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy before 2 January 2004 to make the person filing to become immediately a "candidate" for purposes other than the printing of ballots. This legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline. The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a candidate."
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Under Section 3(b) of the Omnibus Election Code, the applicable law prior to RA 8436, the campaign period for local officials commences 45 days before election day. For the 2004 local elections, this puts the start of the campaign period on 24 March 2004. This also puts the last day for the filing of certificate of candidacy, under the law prior to RA 8436, on 23 March 2004. Eusebio is deemed to have filed his certificate of candidacy on this date for purposes other than the printing of ballots because this is the interpretation of Section 80 of the Omnibus Election Code most favorable to one charged of its violation. Since Section 80 defines a criminal offense, [46] its provisions must be construed liberally in favor of one charged of its violation. Thus, Eusebio became a "candidate" only on 23 March 2004 for purposes other than the printing of ballots. Acts committed by Eusebio prior to his being a "candidate" on 23 March 2004, even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are protected as part of freedom of expression of a citizen before he becomes a candidate for elective public office. Acts committed by Eusebio on or after 24 March 2004, or during the campaign period, are not covered by Section 80 which punishes only acts outside the campaign period. We now examine the specific questioned acts of Eusebio whether they violate Section 80 of the Omnibus Election Code. We begin with the 14 February 2004 and the 17 March 2004 speeches of Eusebio: 1) The speech uttered on February 14, 2004 during the meeting dubbed as "Lingap sa Barangay" in Barangay San Miguel, Pasig City wherein [Eusebio] allegedly asked the people to vote for him and solicited for their support x x x: 2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig City wherein [Eusebio] again allegedly uttered defamatory statements against co-[candidate] Lanot and campaigned for his (respondents) and his groups candidacy. [47] (Emphasis in the original) The 14 February 2004 and 17 March 2004 speeches happened before the date Eusebio is deemed to have filed his certificate of candidacy on 23 March 2004 for purposes other than the printing of ballots. Eusebio, not being a candidate then, is not liable for speeches on 14 February 2004 and 17 March 2004 asking the people to vote for him. The survey showing Eusebio leading in the mayoralty race was published before Eusebio was deemed to have filed his certificate of candidacy on 23 March 2004. Thus: 3) He caused to be published in leading newspapers about a survey allegedly done by Survey Specialist, Inc. showing him to be leading in the mayoralty race in Pasig City. xxxx They also presented Certification issued by Mr. Diego Cagahastian, News Editor of Manila Bulletin dated 10 March 2004 and Mr. Isaac G. Belmonte, Editor-in-Chief of Philippine Star dated March 2, 2004 to the effect that the articles in question came from the camp of [Eusebio]. [48] (Emphasis in the original) Eusebio is not liable for this publication which was made before he became a candidate on 23 March 2004. The political advertisement in the Philippine Free Press issue of 7 February 2004 was also made before Eusebio became a candidate on 23 March 2004. Thus: 4) He paid a political advertisement in the Philippine Free Press in the amount of P193,660.00 as published in its issue dated February 7, 2004. [49] (Emphasis in the original) The display of Eusebios billboards, posters, stickers, and streamers, as well as his distribution of free shoes, all happened also before Eusebio became a candidate on 23 March 2004. Thus: 5) The display of billboards containing the words "Serbisyo Eusebio" and "ST" which means "Serbisyong Totoo" before the start of the campaign period. xxxx
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6) Posters showing the respondent and his running mate Yoyong Martinez as well those showing the name "KA ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection with the dengue project were posted everywhere even before the start of the campaign period. xxxx Petitioners witnesses Alfonso Cordova and Alfredo Lacsamana as well as Hermogenes Garcia stated in their respective affidavits marked as Exhs. "L" and "L-1" that the pictures were taken on March 3, 7 & 8, 2004. xxxx 7) Streamers bearing the words "Pasig City is for PEACE" were likewise displayed with the two letters "E" prominently written. xxxx Said streamers were among those captured by the camera of the petitioners witnesses Hermogenes Garcia and Nelia Sarmiento before the start of the campaign period. 8) Stickers of [Eusebio] were likewise pasted all over the city before the start of the campaign period. xxxx 9) [Eusebio] engaged in vote-buying by distributing shoes to the students while telling the parents that by way of gratitude, they should vote for him. The affidavits of Ceferino Tantay marked as Exh. "M" and Flor Montefalcon, Norie Altiche and Myrna Verdillo marked as Exh. "O" are uncontroverted. Their statement that free shoes were given to the students of Rizal High School was corroborated by the Manila Bulletin issue of February 6, 2004 which showed the picture of the respondent delivering his speech before a group of students. x x x x [50] (Emphasis in the original) Based on the findings of Director Ladra, the questioned acts attributed to Eusebio all occurred before the start of the campaign period on 24 March 2004. Indeed, Director Ladra applied Section 80 of the Omnibus Election Code against Eusebio precisely because Eusebio committed these acts "outside" of the campaign period. However, Director Ladra erroneously assumed that Eusebio became a "candidate," for purposes of Section 80, when Eusebio filed his certificate of candidacy on 29 December 2003. Under Section 11 of RA 8436, Eusebio became a "candidate," for purposes of Section 80 of the Omnibus Election Code, only on 23 March 2004, the last day for filing certificates of candidacy. Applying the facts - as found by Director Ladra and affirmed by the COMELEC First Division - to Section 11 of RA 8436, Eusebio clearly did not violate Section 80 of the Omnibus Election Code which requires the existence of a "candidate," one who has filed his certificate of candidacy, during the commission of the questioned acts. Eusebio asserts that Section 11 of RA 8436 exculpates him from any liability for the questioned acts. Eusebio points out that Section 11 contains the following proviso: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: x x x Eusebio theorizes that since the questioned acts admittedly took place before the start of the campaign period, such acts are not "unlawful acts or omissions applicable to a candidate." We find no necessity to apply in the present case this proviso in Section 11 of RA 8436. Eusebios theory legalizes election campaigning or partisan political activities before the campaign period even if a person has already filed his certificate of candidacy based on the election periods under existing laws prior to RA 8436. Under Eusebios theory, Section 11 of RA 8436 punishes unlawful acts applicable to a candidate only if committed during the campaign period. By definition, the election offense in Section 80 of the Omnibus Election Code cannot be committed during the campaign period. On the other hand, under Eusebios theory, unlawful acts applicable to a candidate cannot be committed outside of the campaign period. The net result is to make the election offense in Section 80 physically impossible to commit at any time. We shall leave this issue for some other case in the future since the present case can be resolved without applying the proviso in Section 11 of RA 8436. 180 Election Laws Election Process and/or Proceedings
Effect of Eusebios Possible Disqualification As second placer, Lanot prayed that he be proclaimed as the rightful Pasig City Mayor in the event of Eusebios disqualification. As third placer, Benavides, on the other hand, prays that she be proclaimed as the rightful Pasig City Mayor in the event of Eusebios disqualification and in view of Lanots death. Even if we assume Eusebios disqualification as fact, we cannot grant either prayer. The disqualification of the elected candidate does not entitle the candidate who obtained the second highest number of votes to occupy the office vacated because of the disqualification. [51] Votes cast in favor of a candidate who obtained the highest number of votes, against whom a petition for disqualification was filed before the election, are presumed to have been cast in the belief that he was qualified. For this reason, the second placer cannot be declared elected. [52] The exception to this rule rests on two assumptions. First, the one who obtained the highest number of votes is disqualified. Second, the voters are so fully aware in fact and in law of a candidates disqualification to bring such awareness within the realm of notoriety but nonetheless the voters still cast their votes in favor of the ineligible candidate. [53] Lanot and Benavides failed to prove that the exception applies in the present case. Thus, assuming for the sake of argument that Eusebio is disqualified, the rule on succession provides that the duly elected Vice-Mayor of Pasig City shall succeed in Eusebios place. [54] WHEREFORE, we DISMISS the petition. We find no grave abuse of discretion in the 10 May 2004 Advisory of Chairman Benjamin S. Abalos and in the 21 May 2004 Order of the Commission on Elections En Banc. We SET ASIDE the 20 August 2004 Resolution of the Commission En Banc since respondent Vicente P. Eusebio did not commit any act which would disqualify him as a candidate in the 10 May 2004 elections. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 181613 September 11, 2009
ROSALINDA A. PENERA, Petitioner, vs. COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents. DECISION CHICO-NAZARIO, J.: This Petition for Certiorari with Prayer for the Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order under 2 Rule 65, in relation to Rule 64 of the Rules of Court, seeks the nullification of the Resolution dated 30 January 2008 of the Commission 3 on Elections (COMELEC) en banc. Said Resolution denied the Motion for Reconsideration of the earlier Resolution 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 4 5 Disqualification against Penera, as well as the candidates for Vice-Mayor and Sangguniang Bayan who belonged to her political party, 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 6 them on the day of the elections. Attached to the Petition were the Affidavits of individuals who witnessed the said incident. Penera alone filed an Answer 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 8 the hands of the candidates in the motorcade." Finally, Penera cited Barroso v. Ampig 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 9 their position papers and other evidence in support of their allegations. After the parties filed their respective Position Papers, the records of the case were transmitted to the COMELEC main office in Manila for 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. 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:
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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 non-forum [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 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 10 failed to mention particularly the participation of the other individual [party members]. 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] 11 from violation of section 80 and 68 of the Omnibus Elections [sic] Code. Commissioner Florentino A. Tuason, Jr. (Tuason) wrote a Separate Opinion 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 13 Opinion 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 Reconsideration 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 15 make them incomplete and inaccurate. Subsequently, Penera filed a Supplemental Motion for Reconsideration, 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:
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WHEREFORE, this Commission RESOLVES to DENY the instant Motion for Reconsideration filed by [Penera] for UTTER LACK OF 16 MERIT. 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 dissented 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 Resolution 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 Comments on the Petition 20 at bar, we required Penera, in a Resolution dated 17 June 2008, to file a Reply. However, as no Reply was filed in due time, we 21 22 dismissed Peneras Petition in a Resolution dated 14 October 2008, in accordance with Rule 56, Section 5(e) of the Rules of Court. 23 Penera subsequently filed an Ex Parte Motion to Admit Reply, which we treated as a Motion for Reconsideration of the Resolution 24 dated 14 October 2008. On 11 November 2008, we issued another Resolution reinstating Peneras Petition. 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. 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.
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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 25 review of the tribunals evaluation of the evidence. 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 26 causes are clearly substantiated, the Court will not interfere with the findings of fact of the COMELEC. 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 27 enjoined or to act at all in contemplation of law. 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 28 conclusion. 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 185 Election Laws Election Process and/or Proceedings
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: 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 29 balloons attached to the jeppneys [sic] and motorcycles. (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 leadcandidate Rosalinda CA. Penera [sic]; 5. That we were in the motorcade on that afternoon only riding in one of the jeepneys.
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(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 31 candidate[.]" A motorcade is a procession or parade of automobiles or other motor vehicles. 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. We are not convinced. 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 186 Election Laws Election Process and/or Proceedings
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, 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.) On 10 February 2007, Republic Act No. 9369 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 34 the Omnibus Election Code can not be applied to the present case since, as the Court held in Lanot v. Commission on Elections, 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.
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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 35 its repealing clause, that a particular and specific law, identified by its number or title, is repealed. 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 36 alteration in the law already existing, leaving some part of the original still standing. 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,
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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 38 old laws. This latter situation falls under the category of an implied repeal. 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 39 suffice. 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 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 40 time also according due respect to a coordinate department of the government. 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.
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For this reason, the plain declaration in Lanot that "[w]hat Section 80 of the Omnibus Election Code prohibits is an election campaign 41 or partisan political activity by a candidate outside of the campaign period," 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, 42 whose disqualification may be sought, to begin with. 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 43 Elections, 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 189 Election Laws Election Process and/or Proceedings
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 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 68 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, 45 or nugatory. 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 46 47 in the present case since Section 15 of Republic Act No. 8436, as amended by Section 13 of Republic Act No. 9369, 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, 48 49 electoral; the other, criminal. 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.
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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. 50 Basic considerations of due process underlie this rule. 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 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. 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 51 next highest number of votes to be declared elected. In this case, the rules on succession under the Local Government Code shall apply, to wit: 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. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 181613 November 25, 2009
ROSALINDA A. PENERA, Petitioner, vs. COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents. RESOLUTION CARPIO, J.: We grant Rosalinda A. Peneras (Penera) motion for reconsideration of this Courts Decision of 11 September 2009 (Decision). The assailed Decision dismissed Peneras petition and affirmed the Resolution dated 30 July 2008 of the COMELEC En Banc as well as the Resolution dated 24 July 2007 of the COMELEC Second Division. The Decision disqualified Penera from running for the office of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should succeed Penera. In support of her motion for reconsideration, Penera submits the following arguments: 1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as amended by Section 13 of RA 9369. 2. The petition for disqualification failed to submit convincing and substantial evidence against Penera for violation of Section 80 of the Omnibus Election Code. 3. Penera never admitted the allegations of the petition for disqualification and has consistently disputed the charge of premature campaigning. 4. The admission that Penera participated in a motorcade is not the same as admitting she engaged in premature election campaigning. Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x." The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that "[a]ny person who files his certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy." The immediately succeeding proviso in the same third paragraph states that "unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period." These two provisions determine the resolution of this case. The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate of candidacy] proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may 1 be disqualified." Under the Decision, a candidate may already be liable for premature campaigning after the filing of the certificate of candidacy but even before the start of the campaign period. From the filing of the certificate of candidacy, even long before the start of the campaign period, the Decision considers the partisan political acts of a person so filing a certificate of candidacy "as the promotion of his/her election as a candidate." Thus, such person can be disqualified for premature campaigning for acts done before the start of the campaign period. In short, the Decision considers a person who files a certificate of candidacy already a "candidate" even before the start of the campaign period. lawphil The assailed Decision is contrary to the clear intent and letter of the law. The Decision reverses Lanot v. COMELEC, which held that a person who files a certificate of candidacy is not a candidate until the start of the campaign period. In Lanot, this Court explained:
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Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the campaign period. The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who "has filed a certificate of candidacy" to an elective public office. Unless one has filed his certificate of candidacy, he is not a "candidate." The third element requires that the campaign period has not started when the election campaign or partisan political activity is committed. Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day. Before such last day, there is no "particular candidate or candidates" to campaign for or against. On the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to apply since Section 80 covers only acts done "outside" the campaign period. Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last day, which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy. This is perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last day or close to the last day. There is no dispute that Eusebios acts of election campaigning or partisan political activities were committed outside of the campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a "candidate" when he committed those acts before the start of the campaign period on 24 March 2004. Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan political activities prior to the start of the campaign period on 24 March 2004? Section 11 of RA 8436 provides: SECTION 11. Official Ballot. The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot shall be provided. Both sides of the ballots may be used when necessary. For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/ manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice-President, Senators and candidates under the party-list system as well as petitions for registration and/or manifestation to participate in the party-list system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998. The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens arms of the Commission may assign watchers in the printing, storage and distribution of official ballots. To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot. The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct.
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Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the printing of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee: SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national officials? THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods. SENATOR GONZALES. But the moment one files a certificate of candidacy, hes already a candidate, and there are many prohibited acts on the part of candidate. THE CHAIRMAN (REP. TANJUATCO). Unless we. . . . SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic). THE CHAIRMAN (REP. TANJUATCO). If we dont provide that the filing of the certificate will not bring about ones being a candidate. SENATOR GONZALES. If thats a fact, the law cannot change a fact. THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in that official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this machine readable ballots. So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate version. THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman. xxxx SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon being a candidate? THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time to print the ballots, this provision does not intend to change the campaign periods as presently, or rather election periods as presently fixed by existing law. THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition. THE CHAIRMAN (REP. TANJUATCO). Thats right. THE ACTING CHAIRMAN (SEN. FERNAN). Okay. THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days also. So that is election period already. But he will still not be considered as a candidate. Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy before 2 January 2004 to make the person filing to become immediately a "candidate" for purposes other than the printing of ballots. This legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline. The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to 3 meet the early deadline "will still not be considered as a candidate." (Emphasis in the original) Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of the campaign period. This ground was based on the deliberations of the legislators who explained the intent of the provisions of RA 8436, which laid the legal framework for an automated election system. There was no express provision in the original RA 8436 stating that one who files a certificate of candidacy is not a candidate until the start of the campaign period.
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When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law, realizing that Lanot merely relied on the deliberations of Congress in holding that The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who 4 files to meet the early deadline "will still not be considered as a candidate." (Emphasis supplied) Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the automated election system would be disqualified or penalized for any partisan political act done before the start of the campaign period. Thus, in en acting RA 9369, Congress expressly wrote the Lanot doctrine into the second sentence, third paragraph of the amended Section 15 of RA 8436, thus: xxx For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. (Boldfacing and underlining supplied) Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot be annulled by this Court except on the sole ground of its unconstitutionality. The Decision cannot reverse Lanot without repealing this second sentence, because to reverse Lanot would mean repealing this second sentence. The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision considers the entire Section 15 good law. Thus, the Decision is selfcontradictory reversing Lanot but maintaining the constitutionality of the second sentence, which embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369. In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15 of RA 8436. The original provision in RA 8436 states x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period, x x x. In RA 9369, Congress inserted the word "only" so that the first proviso now reads x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period x x x. (Emphasis supplied) Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be committed by a candidate "only" upon the start of the campaign period. This clearly means that before the start of the campaign period, such election offenses cannot be so committed. When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not consider Penera a candidate for purposes other than the printing of ballots, until the start of the campaign period. There is absolutely no room for any other interpretation. We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio: x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read together with the amended Section 15 of RA 8436. A "candidate refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties." However, it is no longer enough to merely file a certificate of candidacy for a person to be considered a candidate because "any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy." Any person may thus file a certificate of candidacy on any day within the prescribed period for filing a certificate of candidacy yet that person shall be considered a candidate, for purposes of determining ones possible violations of election laws, only during the campaign period. Indeed, there is no "election campaign" or "partisan political activity" designed to promote the election or defeat of a particular candidate or candidates to public office simply because there is no "candidate" to speak of 195 Election Laws Election Process and/or Proceedings
prior to the start of the campaign period. Therefore, despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at the time of the questioned motorcade which was conducted a day before the start of the campaign period. x x x The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her certificate of cand idacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30 March 2007, the date when she became a "candidate," even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are within the realm of a citizens protected freedom of expression. Acts committed by Penera within the campaign period are not covered by Section 80 as Section 80 punishes only acts 5 outside the campaign period. The assailed Decision gives a specious reason in explaining away the first proviso in the third paragraph, the amended Section 15 of RA 8436 that election offenses applicable to candidates take effect only upon the start of the campaign period. The Decision states that: x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period," does not mean that the acts constituting premature campaigning can only be committed, for which the offender may be disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in said proviso was it stated that campaigning before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity. As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity, However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature 6 campaigning already enjoys an unfair headstart in promoting his/her candidacy. (Emphasis supplied) It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan activities before the start of the campaign period are lawful. It is sufficient for Congress to state that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The only inescapable and logical result is that the same acts, if done before the start of the campaign period, are lawful. In laymans language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the law. The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only after the start of the campaign period. This is not what the law says. What the law says is "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful. The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign period. This is clearly not the language of the law. Besides, such a law as envisioned in the Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for vagueness. Congress has laid down the law a candidate is liable for election offenses only upon the start of the campaign period. This Court has no power to ignore the clear and express mandate of the law that "any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy." Neither can this Court turn a blind eye to the express and clear language of the law that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period."
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The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and express as the second sentence, and its immediately succeeding proviso, as written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369. WHEREFORE, we GRANT petitioner Rosalinda A. Peneras Motion for Reconsideration. We SET ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor of Sta. Monica, Surigao del Norte. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 147571 May 5, 2001
SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDARD, petitioners, vs. COMMISSION ON ELECTIONS, respondent. MENDOZA, J.: Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys in various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features news- worthy items of information including election surveys. 1wphi1.nt Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing 5.4 of RA. No.9006 (Fair Election Act), which provides: Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. The term "election surveys" is defined in 5.1 of the law as follows: Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as "Survey"). The implement 5.4, Resolution 3636, 24(h), dated March I, 2001, of the COMELEC enjoins Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on May 14,2001. Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to tile voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys, which are relatively objective. 1wphi1.nt Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require timeliness. Respondent claims that in National Press Club v. 1 COMELEC, a total ban on political advertisements, with candidates being merely allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according to respondent, it states that the prohibition in 5.4 of RA. No. 9006 is much more limited. 198 Election Laws Election Process and/or Proceedings
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press. To be sure, 5.4Iays a prior restraint on freedom of speech, expression, and the press prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election seven (7) days before a local election. Because of tile preferred status of tile constitutional rights of speech, expression, and he press, such a measure 2 is vitiated by a weighty presumption of invalidity. Indeed, any system of prior restraints of expression comes to this Court bearing a heavy Presumption against its constitutional validity. ...The Government thus carries a heavy burden of showing justification for in 3 enforcement of such restraint. "' There, thus a reversal of the normal presumption of validity that inheres in every legislation. Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed out in sustaining tile ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring "equal opportunity, time, space, and the right to reply" as well as uniform and reasonable rates 4 of charges for the use of such media facilities "public information campaigns and forums among candidates." This Court stated: The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the Purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free 5 speech and free press. MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of 5.4. 6 Indeed, as has been pointed out in Osmea v. COMELEC, this test was originally formulated for the criminal law and only later appropriated for free speech cases. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations. Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and balancing the circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible elections] is served by the regulation of the free enjoyment of the rights" (page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon effect to favor candidates, misinformation, the junking" of weak and "losing" candidates by their parties, and the form of election cheating called "dagdag-bawas" and invoking the State's power to supervise media of information during the election period (pages 11-16), the dissenting opinion simply concludes: Viewed in the light of the legitimate and significant objectives of Section 5.4, It may be seen that its limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable. In Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only during the period when the voters are presumably contemplating whom they should elect and when they are most susceptible to such unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18) The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression. Instead, reliance is placed on Art. IX-C, 4. As already stated, the purpose of Art. IX-C, 4 is to "ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor for public information campaigns and forums among candidates. " Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process. In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press with little protection. For anyone who can bring a plausible justification forward can easily show a rational connection between the statute and a legitimate governmental purpose. In 7 contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC, from which the dissent in this case takes its cue, was a strong one resulting in his conclusion that , 50-B of R.A. No. 4880, which limited the period of election campaign and partisan political activity, was an unconstitutional abridgment of freedom of expression. Nor can the ban on election surveys be justified on the ground that there are other countries - 78, according to the Solicitor General, while the dissent cites 28 - which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is note worthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is because the United States is a mature democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor more mature than the Philippines in political development, do not restrict the publication of election survey results. Election Laws Election Process and/or Proceedings
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What test should then be employed to determine the constitutional validity of 5.4? The United States Supreme Court, through Chief Justice Warren, held in United States v. O 'Brien: [A] Government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no 8 greater than is essential to the furtherance of that interest. This is so far the most influential test for distinguishing content-based from content neutral regulations and is said to have "become 9 10 canonical in the review of such laws." is noteworthy that the O 'Brien test has been applied by this Court in at least two cases. Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is "not unrelated to the Expression of free expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. Our inquiry should accordingly focus on these two considerations as applied to 5.4. >First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the asserted governmental interest makes such interest "not related to the suppression of free expression." By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion takers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by referring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that "the government 11 has no power to restrict expression because of its message, its ideas, its subject matter, or its content." The inhibition of speech 12 should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire, thus: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality Nor is there justification for the prior restraint which 5.4Iays on protected speech. Near v. Minnesota,
13
it was held:
[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and overthrow by force of orderly government Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. .. This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be valid in National Press Club v. 14 15 COMELEC, and Osmea v. COMELEC. For the ban imposed by R.A. No. 6646, 11(b) is not only authorized by a specific 16 constitutional provision, but it also provided an alternative so that, as this Court pointed out in Osmea, there was actually no ban but only a substitution of media advertisements by the COMELEC space and COMELEC hour. Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of the O 'Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, 5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the form of election cheating called "dagdag-bawas." Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of 17 apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987, the COMELEC is given the power:
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To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing. This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some voters want to be identified with the "winners." Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing the publication of survey results, which are a form of expression? It has been held that "[mere] legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to 18 justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions." To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than suppression of freedom of expression. On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its decisions, orders, or resolution may be reviewed by this Court only certiorari. The flaws in this argument is that it assumes that its Resolution 3636, March 1, 2001 is a "decision, order, or resolution" within the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintain that Resolution 3636 was "rendered" by the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for COMELEC's claim that this petition for prohibition is inappropriate. Prohibition has been fund appropriate for testing the constitutionality of various election laws, rules, and 19 regulations. WHEREFORE, the petition for prohibited GRANTED and 5.4 of R.A. No. 9006 24(h) of COMELEC Resolution 3636, March 1, 2001, are declared unconstitutional. 1wphi1.nt SO ORDERED.1wphi1.nt
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 133486 January 28, 2000
ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent. PANGANIBAN, J.: The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls properly conducted and publicized can be vital tools in eliminating the evils of electionfixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our people. The Case and the Facts Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en banc 1 Resolution No. 98-1419 dated April 21, 1998. In the said Resolution, the poll body RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or representatives from conducting such exit survey and to authorize the Honorable Chairman to issue the same. The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV coverage of the elections . . . and to make [an] exit survey of the . . . vote during the elections for national officials particularly for President and Vice President, results of which shall be [broadcast] 2 immediately." The electoral body believed that such project might conflict with the official Comelec count, as well as the unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey. On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed the Comelec to cease and desist, until further orders, from implementing the assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were actually conducted and reported by media without any difficulty or problem. The Issues Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group], its agents or 3 representatives from conducting exit polls during the . . . May 11 elections." In his Memorandum, the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration of the assailed Comelec Resolution. The Court's Ruling The Petition is meritorious. Procedural Issues: Mootness and Prematurity The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election has already been held and done with. Allegedly, there is no longer any actual controversy before us.
5 4
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The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on the people's fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of our democratic government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will only 6 postpone a task that could well crop up again in future elections. In any event, in Salonga v. Cruz Pao, the Court had occasion to reiterate that it "also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of 7 protection given by constitutional guarantees." Since the fundamental freedoms of speech and of the press are being invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit polls and the dissemination of data derived therefrom. The solicitor general further contends that the Petition should be dismissed for petitioner's failure to exhaust available remedies before the issuing forum, specifically the filing of a motion for reconsideration. This Court, however, has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage of justice, 9 when the issue involves the principle of social justice or the protection of labor, when the decision or resolution sought to be set aside 10 11 is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.
8
The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only on May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a reconsideration and to obtain a swift resolution in time or the May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves transcendental constitutional issues. Direct resort to this Court through a special civil action for certiorari is therefore justified. Main Issue: Validity of Conducting Exit Polls An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections. In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media, committed to report balanced election-related data, including "the exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions." It argues that the holding of exit polls and the nationwide reporting their results are valid exercises of the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused its discretion and grossly violated the petitioner's constitutional rights. Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its discretion. It insists that the issuance thereof was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly confuse and influence the voters," and that the surveys were designed "to condition the minds of people and cause confusion as to who are the winners and the [losers] in the election," which in turn may result in "violence and anarchy." Public respondent further argues that "exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballots," 12 as the "voters are lured to reveal the contents of ballots," in violation of Section 2, Article V of the Constitution; and relevant provisions 13 of the Omnibus Election Code. It submits that the constitutionally protected freedoms invoked by petitioner "are not immune to regulation by the State in the legitimate exercise of its police power," such as in the present case. The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying the credibility and integrity of the electoral process," considering that they are not supervised by any government agency and can in general be manipulated easily. He insists that these polls would sow confusion among the voters and would undermine the official tabulation of votes conducted by the Commission, as well as the quick count undertaken by the Namfrel. Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In answering this question, we need to review quickly our jurisprudence on the freedoms of speech and of the press. 203 Election Laws Election Process and/or Proceedings
Nature and Scope of Freedoms of Speech and of the Press The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both political and legal, 14 illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom." Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press. In the landmark case 16 Gonzales v. Comelec, this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public interest without prior restraint. The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people 17 in social and political decision-making, and of maintaining the balance between stability and change. It represents a profound 18 commitment to the principle that debates on public issues should be uninhibited, robust, and wide open. It means more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existing 19 climate of opinion on any of public consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes, we stress that the freedom encompasses the thought we hate, no less than the thought we agree with. Limitations The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press. Such 20 freedoms could not remain unfettered and unrestrained at all times and under all circumstances. They are not immune to regulation 21 by the State in the exercise of its police power. While the liberty to think is absolute, the power to express such thought in words and deeds has limitations. In Cabansag v. Fernandez freedoms, as follows:
22 15
this Court had occasion to discuss two theoretical test in determining the validity of restrictions to such
These are the "clear and present danger" rule and the "dangerous tendency" rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be "extremely serious and the degree of imminence extremely high" before the utterance can be punished. The danger to be guarded against is the "substantive evil" 23 sought to be prevented. . . . The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil 24 which the legislative body seeks to prevent. Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v. Fugoso 26 27 28 29 and American Bible Society v. City of Manila; as well as in later ones, Vera v. Arca, Navarro v. Villegas, Imbong v. Ferrer, Blo 30 31 Umpar Adiong v. Comelec and, more recently, in Iglesia ni Cristo v. MTRCB. In setting the standard or test for the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive 32 evils that Congress has a right to prevent. It is a question of proximity and degree." A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the time 33 element; the danger must not only be probable but very likely to be inevitable. The evil sought to be avoided must be so substantive 34 as to justify a clamp over one's mouth or a restraint of a writing instrument. Justification for a Restriction Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The power to 35 exercise prior restraint is not to be presumed; rather the presumption is against its validity. And it is respondent's burden to overthrow 36 such presumption. Any act that restrains speech should be greeted with furrowed brows, so it has been said. To justify a restriction, the promotion of a substantial government interest must be clearly shown.
37 25
Thus:
A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; 204 Election Laws Election Process and/or Proceedings
and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that 38 interest. Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly stifle 39 fundamental personal liberties, when the end can be more narrowly achieved. The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of 40 information meant. to add meaning to the equally vital right of suffrage. We cannot support any ruling or order "the effect of which 41 would be to nullify so vital a constitutional right as free speech." When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the freedom to speak 42 and the right to know are unduly curtailed. True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. However, in order to justify a restriction of the people's freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must far outweigh them. These freedoms have additional importance, because exit polls generate important research data which may be used to study influencing factors and trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it effectively 43 prevents the use of exit poll data not only for election-day projections, but also for long-term research. Comelec Ban on Exit Polling In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] . . . an exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a clear and present danger to the community or it has a dangerous tendency." It then contends that "an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the Comelec . . . is ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process." Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled. Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake here are the credibility and the integrity of the elections, which are exercises that are separate and independent from the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of the elections, since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other. The Comelec's concern with the possible noncommunicative effect of exit polls disorder and confusion in the voting centers does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification 44 as to whether the polling is disruptive or not. Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting 45 centers. There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters. Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could be derived from them, based on the voters' answer to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be deprived of studies on the impact of current events and of election-day and other factors on voters' choices.1wphi1.nt In Daily Herald Co. v. Munro, the US Supreme Court held that a statute, one of the purposes of which was to prevent the broadcasting of early returns, was unconstitutional because such purpose was impermissible, and the statute was neither narrowly tailored to advance a state interest nor the least restrictive alternative. Furthermore, the general interest of the State in insulating voters from outside influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible, so is impermissible, so is regulating speech via an exit poll 47 restriction. The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable 205 Election Laws Election Process and/or Proceedings
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ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys. For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups may be allowed to conduct the same. Pollsters may be kept at a reasonable distance from the voting center. They may be required to explain to voters that the latter may refuse interviewed, and that the interview is not part of the official balloting process. The pollsters may further be 48 required to wear distinctive clothing that would show they are not election officials. Additionally, they may be required to undertake an information campaign on the nature of the exercise and the results to be obtained therefrom. These measures, together with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly election. For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each province; (2) residences to be polled in such communities are also chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results are released to the 49 public only on the day after the elections. These precautions, together with the possible measures earlier stated, may be undertaken to abate the Comelec's fear, without consequently and unjustifiably stilling the people's voice. With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls properly conducted and publicized can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other electoral ills. Violation of Ballot Secrecy The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here. The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for. In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people. WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs. SO ORDERED.
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INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO H. LOPEZ, AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO, and MANUEL ALCUAZ JR., petitioners, vs. COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS SR.; COMELEC BIDDING and AWARD COMMITTEE CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE GUZMAN, JOSE F. BALBUENA, LAMBERTO P. LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.; and MEGA PACIFIC CONSORTIUM, respondents. DECISION PANGANIBAN, J.: There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence; or (2) when it is 2 executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. In the present case, the Commission on Elections approved the assailed Resolution and awarded the subject Contract not only in clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure. For the automation of the counting and canvassing of the ballots in the 2004 elections, Comelec awarded the Contract to "Mega Pacific Consortium" an entity that had not participated in the bidding. Despite this grant, the poll body signed the actual automation Contract with "Mega Pacific eSolutions, Inc.," a company that joined the bidding but had not met the eligibility requirements. Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately checking and observing mandatory financial, technical and legal requirements. It also accepted the proferred computer hardware and software even if, at the time of the award, they had undeniably failed to pass eight critical requirements designed to safeguard the integrity of elections, especially the following three items: They failed to achieve the accuracy rating criteria of 99.9995 percent set-up by the Comelec itself They were not able to detect previously downloaded results at various canvassing or consolidation levels and to prevent these from being inputted again They were unable to print the statutorily required audit trails of the count/canvass at different levels without any loss of data Because of the foregoing violations of law and the glaring grave abuse of discretion committed by Comelec, the Court has no choice 3 but to exercise its solemn "constitutional duty" to void the assailed Resolution and the subject Contract. The illegal, imprudent and hasty actions of the Commission have not only desecrated legal and jurisprudential norms, but have also cast serious doubts upon the poll bodys ability and capacity to conduct automated elections. Truly, the pith and soul of democracy -- credible, orderly, and peaceful elections -- has been put in jeopardy by the illegal and gravely abusive acts of Comelec. The Case Before us is a Petition under Rule 65 of the Rules of Court, seeking (1) to declare null and void Resolution No. 6074 of the Commission on Elections (Comelec), which awarded "Phase II of the Modernization Project of the Commission to Mega Pacific Consortium (MPC);" (2) to enjoin the implementation of any further contract that may have been entered into by Comelec "either with Mega Pacific Consortium and/or Mega Pacific eSolutions, Inc. (MPEI);" and (3) to compel Comelec to conduct a re-bidding of the project. The Facts The following facts are not disputed. They were culled from official documents, the parties pleadings, as well as from admissions during the Oral Argument on October 7, 2003.
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On June 7, 1995, Congress passed Republic Act 8046, which authorized Comelec to conduct a nationwide demonstration of a computerized election system and allowed the poll body to pilot-test the system in the March 1996 elections in the Autonomous Region in Muslim Mindanao (ARMM). On December 22, 1997, Congress enacted Republic Act 8436 authorizing Comelec to use an automated election system (AES) for the process of voting, counting votes and canvassing/consolidating the results of the national and local elections. It also mandated the poll body to acquire automated counting machines (ACMs), computer equipment, devices and materials; and to adopt new electoral forms and printing materials. Initially intending to implement the automation during the May 11, 1998 presidential elections, Comelec -- in its Resolution No. 2985 7 dated February 9, 1998 -- eventually decided against full national implementation and limited the automation to the Autonomous Region in Muslim Mindanao (ARMM). However, due to the failure of the machines to read correctly some automated ballots in one 8 town, the poll body later ordered their manual count for the entire Province of Sulu. In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done manually, as no additional ACMs had been acquired for that electoral exercise allegedly because of time constraints. On October 29, 2002, Comelec adopted in its Resolution 02-0170 a modernization program for the 2004 elections. It resolved to conduct biddings for the three (3) phases of its Automated Election System; namely, Phase I - Voter Registration and Validation System; Phase II - Automated Counting and Canvassing System; and Phase III - Electronic Transmission. On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172, which allocated the sum of P2.5 billion to fund the AES for the May 10, 2004 elections. Upon the request of Comelec, she authorized the release of an additional P500 million. On January 28, 2003, the Commission issued an "Invitation to Apply for Eligibility and to Bid," which we quote as follows: "INVITATION TO APPLY FOR ELIGIBILITY AND TO BID The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act Nos. 8189 and 8436, invites interested offerors, vendors, suppliers or lessors to apply for eligibility and to bid for the procurement by purchase, lease, lease with option to purchase, or otherwise, supplies, equipment, materials and services needed for a comprehensive Automated Election System, consisting of three (3) phases: (a) registration/verification of voters, (b) automated counting and consolidation of votes, and (c) electronic transmission of election results, with an approved budget of TWO BILLION FIVE HUNDRED MILLION (Php2,500,000,000) Pesos. Only bids from the following entities shall be entertained: a. Duly licensed Filipino citizens/proprietorships; b. Partnerships duly organized under the laws of the Philippines and of which at least sixty percent (60%) of the interest belongs to citizens of the Philippines; c. Corporations duly organized under the laws of the Philippines, and of which at least sixty percent (60%) of the outstanding capital stock belongs to citizens of the Philippines; d. Manufacturers, suppliers and/or distributors forming themselves into a joint venture, i.e., a group of two (2) or more manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or liable for a particular contract, provided that Filipino ownership thereof shall be at least sixty percent (60%); and e. Cooperatives duly registered with the Cooperatives Development Authority. Bid documents for the three (3) phases may be obtained starting 10 February 2003, during office hours from the Bids and Awards Committee (BAC) Secretariat/Office of Commissioner Resurreccion Z. Borra, 7th Floor, Palacio del Governador, Intramuros, Manila, upon payment at the Cash Division, Commission on Elections, in cash or cashiers check, payable to the Commission on Elections, of a non-refundable amount of FIFTEEN THOUSAND PESOS (Php15,000.00) for each phase. For this purpose, interested offerors, vendors, suppliers or lessors have the option to participate in any or all of the three (3) phases of the comprehensive Automated Election System. A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila. Should there be questions on the bid documents, bidders are required to submit their queries in writing to the BAC Secretariat prior to the scheduled Pre-Bid Conference. 208 Election Laws Election Process and/or Proceedings
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Deadline for submission to the BAC of applications for eligibility and bid envelopes for the supply of the comprehensive Automated Election System shall be at the Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila on 28 February 2003 at 9:00 a.m. The COMELEC reserves the right to review the qualifications of the bidders after the bidding and before the contract is executed. Should such review uncover any misrepresentation made in the eligibility statements, or any changes in the situation of the bidder to materially downgrade the substance of such statements, the COMELEC shall disqualify the bidder upon due notice without any obligation whatsoever for any expenses or losses that may be incurred by it in the preparation of 9 its bid." On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain eligibility criteria for bidders and the schedule of activities for the project bidding, as follows: "1.) Open to Filipino and foreign corporation duly registered and licensed to do business and is actually doing business in the Philippines, subject to Sec. 43 of RA 9184 (An Act providing In the Modernization Standardization and Regulation of the Procurement Activities of the Government and for other purposes etc.) 2.) Track Record: a) For counting machines should have been used in at least one (1) political exercise with no less than Twenty Million Voters; b) For verification of voters the reference site of an existing data base installation using Automated Fingerprint Identification System (AFIS) with at least Twenty Million. 3.) Ten percent (10%) equity requirement shall be based on the total project cost; and 4.) Performance bond shall be twenty percent (20%) of the bid offer. RESOLVED moreover, that: 1) A. Due to the decision that the eligibility requirements and the rest of the Bid documents shall be released at the same time, and the memorandum of Comm. Resurreccion Z. Borra dated February 7, 2003, the documents to be released on Friday, February 14, 2003 at 2:00 oclock p.m. shall be the eligibility criteria, Terms of Reference (TOR) and other pertinent documents; B. Pre-Bid conference shall be on February 18, 2003; and C. Deadline for the submission and receipt of the Bids shall be on March 5, 2003. 2) The aforementioned documents will be available at the following offices: a) Voters Validation: Office of Comm. Javier b) Automated Counting Machines: Office of Comm. Borra c) Electronic Transmission: Office of Comm. Tancangco"
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On February 17, 2003, the poll body released the Request for Proposal (RFP) to procure the election automation machines. The Bids and Awards Committee (BAC) of Comelec convened a pre-bid conference on February 18, 2003 and gave prospective bidders until March 10, 2003 to submit their respective bids. Among others, the RFP provided that bids from manufacturers, suppliers and/or distributors forming themselves into a joint venture may be entertained, provided that the Philippine ownership thereof shall be at least 60 percent. Joint venture is defined in the RFP as "a group of two or more manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or liable for a 11 particular contract." Basically, the public bidding was to be conducted under a two-envelope/two stage system. The bidders first envelope or the Eligibility Envelope should establish the bidders eligibility to bid and its qualifications to perform the acts if accepted. On the other hand, the second envelope would be the Bid Envelope itself. The RFP outlines the bidding procedures as follows: 209 Election Laws Election Process and/or Proceedings
"25. Determination of Eligibility of Prospective Bidders "25.1 The eligibility envelopes of prospective Bidders shall be opened first to determine their eligibility. In case any of the requirements specified in Clause 20 is missing from the first bid envelope, the BAC shall declare said prospective Bidder as ineligible to bid. Bid envelopes of ineligible Bidders shall be immediately returned unopened. "25.2 The eligibility of prospective Bidders shall be determined using simple pass/fail criteria and shall be determined as either eligible or ineligible. If the prospective Bidder is rated passed for all the legal, technical and financial requirements, he shall be considered eligible. If the prospective Bidder is rated failed in any of the requirements, he shall be considered ineligible. "26. Bid Examination/Evaluation "26.1 The BAC will examine the Bids to determine whether they are complete, whether any computational errors have been made, whether required securities have been furnished, whether the documents have been properly signed, and whether the Bids are generally in order. "26.2 The BAC shall check the submitted documents of each Bidder against the required documents enumerated under Clause 20, to ascertain if they are all present in the Second bid envelope (Technical Envelope). In case one (1) or more of the required documents is missing, the BAC shall rate the Bid concerned as failed and immediately return to the Bidder its Third bid envelope (Financial Envelope) unopened. Otherwise, the BAC shall rate the first bid envelope as passed. "26.3 The BAC shall immediately open the Financial Envelopes of the Bidders whose Technical Envelopes were passed or rated on or above the passing score. Only Bids that are determined to contain all the bid requirements for both components shall be rated passed and shall immediately be considered for evaluation and comparison. "26.4 In the opening and examination of the Financial Envelope, the BAC shall announce and tabulate the Total Bid Price as calculated. Arithmetical errors will be rectified on the following basis: If there is a discrepancy between words and figures, the amount in words will prevail. If there is a discrepancy between the unit price and the total price that is obtained by multiplying the unit price and the quantity, the unit price shall prevail and the total price shall be corrected accordingly. If there is a discrepancy between the Total Bid Price and the sum of the total prices, the sum of the total prices prevail and the Total Bid Price shall be corrected accordingly. "26.5 Financial Proposals which do not clearly state the Total Bid Price shall be rejected. Also, Total Bid Price as calculated that exceeds the approved budget for the contract shall also be rejected. 27. Comparison of Bids 27.1 The bid price shall be deemed to embrace all costs, charges and fees associated with carrying out all the elements of the proposed Contract, including but not limited to, license fees, freight charges and taxes. 27.2 The BAC shall establish the calculated prices of all Bids rated passed and rank the same in ascending order. xxxxxxxxx "29. Postqualification "29.1 The BAC will determine to its satisfaction whether the Bidder selected as having submitted the lowest calculated bid is qualified to satisfactorily perform the Contract. "29.2 The determination will take into account the Bidders financial, technical and production capabilities/resources. It will be based upon an examination of the documentary evidence of the Bidders qualification submitted by the Bidder as well as such other information as the BAC deems necessary and appropriate. "29.3 A bid determined as not substantially responsive will be rejected by the BAC and may not subsequently be made responsive by the Bidder by correction of the non-conformity. "29.4 The BAC may waive any informality or non-conformity or irregularity in a bid which does not constitute a material deviation, provided such waiver does not prejudice or affect the relative ranking of any Bidder. 210 Election Laws Election Process and/or Proceedings
"29.5 Should the BAC find that the Bidder complies with the legal, financial and technical requirements, it shall make an affirmative determination which shall be a prerequisite for award of the Contract to the Bidder. Otherwise, it will make a negative determination which will result in rejection of the Bidders bid, in which event the BAC will proceed to 12 the next lowest calculated bid to make a similar determination of that Bidders capabilities to perform satisfactorily." Out of the 57 bidders, the BAC found MPC and the Total Information Management Corporation (TIMC) eligible. For technical evaluation, they were referred to the BACs Technical Working Group (TWG) and the Department of Science and Technology (DOST). In its Report on the Evaluation of the Technical Proposals on Phase II, DOST said that both MPC and TIMC had obtained a number of failed marks in the technical evaluation. Notwithstanding these failures, Comelec en banc, on April 15, 2003, promulgated Resolution No. 6074 awarding the project to MPC. The Commission publicized this Resolution and the award of the project to MPC on May 16, 2003. On May 29, 2003, five individuals and entities (including the herein Petitioners Information Technology Foundation of the Philippines, 14 represented by its president, Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter to Comelec Chairman Benjamin Abalos Sr. They protested the award of the Contract to Respondent MPC "due to glaring irregularities in the manner in which the bidding process had been conducted." Citing therein the noncompliance with eligibility as well as technical and procedural requirements (many of which have been discussed at length in the Petition), they sought a re-bidding. In a letter-reply dated June 6, 2003, the Comelec chairman -- speaking through Atty. Jaime Paz, his head executive assistant -rejected the protest and declared that the award "would stand up to the strictest scrutiny." Hence, the present Petition. The Issues In their Memorandum, petitioners raise the following issues for our consideration: "1. The COMELEC awarded and contracted with a non-eligible entity; x x x "2. Private respondents failed to pass the Technical Test as required in the RFP. Notwithstanding, such failure was ignored. In effect, the COMELEC changed the rules after the bidding in effect changing the nature of the contract bidded upon. "3. Petitioners have locus standi. "4. Instant Petition is not premature. Direct resort to the Supreme Court is justified."
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In the main, the substantive issue is whether the Commission on Elections, the agency vested with the exclusive constitutional mandate to oversee elections, gravely abused its discretion when, in the exercise of its administrative functions, it awarded to MPC the contract for the second phase of the comprehensive Automated Election System. Before discussing the validity of the award to MPC, however, we deem it proper to first pass upon the procedural issues: the legal standing of petitioners and the alleged prematurity of the Petition. This Courts Ruling The Petition is meritorious. First Procedural Issue: Locus Standi of Petitioners Respondents chorus that petitioners do not possess locus standi, inasmuch as they are not challenging the validity or constitutionality of RA 8436. Moreover, petitioners supposedly admitted during the Oral Argument that no law had been violated by the award of the Contract. Furthermore, they allegedly have no actual and material interest in the Contract and, hence, do not stand to be injured or prejudiced on account of the award. On the other hand, petitioners -- suing in their capacities as taxpayers, registered voters and concerned citizens -- respond that the issues central to this case are "of transcendental importance and of national interest." Allegedly, Comelecs flawed bidding and questionable award of the Contract to an unqualified entity would impact directly on the success or the failure of the electoral process. 211 Election Laws Election Process and/or Proceedings
Thus, any taint on the sanctity of the ballot as the expression of the will of the people would inevitably affect their faith in the democratic system of government. Petitioners further argue that the award of any contract for automation involves disbursement of public funds in gargantuan amounts; therefore, public interest requires that the laws governing the transaction must be followed strictly. We agree with petitioners. Our nations political and economic future virtually hangs in the balance, pending the outcome of the 2004 elections. Hence, there can be no serious doubt that the subject matter of this case is "a matter of public concern and imbued with 18 19 20 public interest"; in other words, it is of "paramount public interest" and "transcendental importance." This fact alone would justify relaxing the rule on legal standing, following the liberal policy of this Court whenever a case involves "an issue of overarching 21 significance to our society." Petitioners legal standing should therefore be recognized and upheld. Moreover, this Court has held that taxpayers are allowed to sue when there is a claim of "illegal disbursement of public funds," or if 23 public money is being "deflected to any improper purpose"; or when petitioners seek to restrain respondent from "wasting public funds 24 through the enforcement of an invalid or unconstitutional law." In the instant case, individual petitioners, suing as taxpayers, assert a material interest in seeing to it that public funds are properly and lawfully used. In the Petition, they claim that the bidding was defective, the winning bidder not a qualified entity, and the award of the Contract contrary to law and regulation. Accordingly, they seek to restrain respondents from implementing the Contract and, necessarily, from making any unwarranted expenditure of public funds pursuant thereto. Thus, we hold that petitioners possess locus standi. Second Procedural Issue: Alleged Prematurity Due to Non-Exhaustion of Administrative Remedies Respondents claim that petitioners acted prematurely, since they had not first utilized the protest mechanism available to them under RA 9184, the Government Procurement Reform Act, for the settlement of disputes pertaining to procurement contracts. Section 55 of RA 9184 states that protests against decisions of the Bidding and Awards Committee in all stages of procurement may be lodged with the head of the procuring entity by filing a verified position paper and paying a protest fee. Section 57 of the same law mandates that in no case shall any such protest stay or delay the bidding process, but it must first be resolved before any award is made. On the other hand, Section 58 provides that court action may be resorted to only after the protests contemplated by the statute shall have been completed. Cases filed in violation of this process are to be dismissed for lack of jurisdiction. Regional trial courts shall have jurisdiction over final decisions of the head of the procuring entity, and court actions shall be instituted pursuant to Rule 65 of the 1997 Rules of Civil Procedure. Respondents assert that throughout the bidding process, petitioners never questioned the BAC Report finding MPC eligible to bid and recommending the award of the Contract to it (MPC). According to respondents, the Report should have been appealed to the Comelc en banc, pursuant to the aforementioned sections of RA 9184. In the absence of such appeal, the determination and recommendation of the BAC had become final. The Court is not persuaded. Respondent Comelec came out with its en banc Resolution No. 6074 dated April 15, 2003, awarding the project to Respondent MPC even before the BAC managed to issue its written report and recommendation on April 21, 2003. Thus, how could petitioners have appealed the BACs recommendation or report to the head of the procuring entity (the chairman of Comelec), when the Comelec en banc had already approved the award of the contract to MPC even before petitioners learned of the BAC recommendation? It is claimed by Comelec that during its April 15, 2003 session, it received and approved the verbal report and recommendation of the BAC for the award of the Contract to MPC, and that the BAC subsequently re-affirmed its verbal report and recommendation by submitting it in writing on April 21, 2003. Respondents insist that the law does not require that the BAC Report be in writing before Comelec can act thereon; therefore, there is allegedly nothing irregular about the Report as well as the en banc Resolution. However, it is obvious that petitioners could have appealed the BACs report and recommendation to the head of the procuring entity (the Comelec chair) only upon their discovery thereof, which at the very earliest would have been on April 21, 2003, when the BAC actually put its report in writing and finally released it. Even then, what would have been the use of protesting/appealing the report to the Comelec chair, when by that time the Commission en banc (including the chairman himself) had already approved the BAC Report and awarded the Contract to MPC? And even assuming arguendo that petitioners had somehow gotten wind of the verbal BAC report on April 15, 2003 (immediately after the en banc session), at that point the Commission en banc had already given its approval to the BAC Report along with the award to MPC. To put it bluntly, the Comelec en banc itself made it legally impossible for petitioners to avail themselves of the administrative remedy that the Commission is so impiously harping on. There is no doubt that they had not been accorded the opportunity to avail 212 Election Laws Election Process and/or Proceedings
25 22
themselves of the process provided under Section 55 of RA 9184, according to which a protest against a decision of the BAC may be 26 27 filed with the head of the procuring entity. Nemo tenetur ad impossible, to borrow private respondents favorite Latin excuse. Some Observations on the BAC Report to the Comelec We shall return to this issue of alleged prematurity shortly, but at this interstice, we would just want to put forward a few observations regarding the BAC Report and the Comelec en bancs approval thereof. First, Comelec contends that there was nothing unusual about the fact that the Report submitted by the BAC came only after the former had already awarded the Contract, because the latter had been asked to render its report and recommendation orally during the Commissions en banc session on April 15, 2003. Accordingly, Comelec supposedly acted upon such oral recommendation and approved the award to MPC on the same day, following which the recommendation was subsequently reduced into writing on April 21, 2003. While not entirely outside the realm of the possible, this interesting and unique spiel does not speak well of the process that Comelec supposedly went through in making a critical decision with respect to a multi-billion-peso contract. We can imagine that anyone else standing in the shoes of the Honorable Commissioners would have been extremely conscious of the overarching need for utter transparency. They would have scrupulously avoided the slightest hint of impropriety, preferring to maintain an exacting regularity in the performance of their duties, instead of trying to break a speed record in the award of multi-billion-peso contracts. After all, between April 15 and April 21 were a mere six (6) days. Could Comelec not have waited out six more days for the written report of the BAC, instead of rushing pell-mell into the arms of MPC? Certainly, respondents never cared to explain the nature of the Commissions dire need to act immediately without awaiting the formal, written BAC Report. In short, the Court finds it difficult to reconcile the uncommon dispatch with which Comelec acted to approve the multi-billion-peso deal, with its claim of having been impelled by only the purest and most noble of motives. At any rate, as will be discussed later on, several other factors combine to lend negative credence to Comelecs tale. Second, without necessarily ascribing any premature malice or premeditation on the part of the Comelec officials involved, it should nevertheless be conceded that this cart-before-the-horse maneuver (awarding of the Contract ahead of the BACs written report) would definitely serve as a clever and effective way of averting and frustrating any impending protest under Section 55. Having made the foregoing observations, we now go back to the question of exhausting administrative remedies. Respondents may not 28 have realized it, but the letter addressed to Chairman Benjamin Abalos Sr. dated May 29, 2003 serves to eliminate the prematurity issue as it was an actual written protest against the decision of the poll body to award the Contract. The letter was signed by/for, inter alia, two of herein petitioners: the Information Technology Foundation of the Philippines, represented by its president, Alfredo M. Torres; and Ma. Corazon Akol. Such letter-protest is sufficient compliance with the requirement to exhaust administrative remedies particularly because it hews closely to the procedure outlined in Section 55 of RA 9184. And even without that May 29, 2003 letter-protest, the Court still holds that petitioners need not exhaust administrative remedies in the 29 light of Paat v. Court of Appeals. Paat enumerates the instances when the rule on exhaustion of administrative remedies may be disregarded, as follows: "(1) when there is a violation of due process, (2) when the issue involved is purely a legal question, (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the part of the administrative agency concerned, (5) when there is irreparable injury, (6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter, (7) when to require exhaustion of administrative remedies would be unreasonable, (8) when it would amount to a nullification of a claim, 213 Election Laws Election Process and/or Proceedings
(9) when the subject matter is a private land in land case proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention."
30
The present controversy precisely falls within the exceptions listed as Nos. 7, 10 and 11: "(7) when to require exhaustion of administrative remedies would be unreasonable; (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention." As already stated, Comelec itself made the exhaustion of administrative remedies legally impossible or, at the very least, "unreasonable." In any event, the peculiar circumstances surrounding the unconventional rendition of the BAC Report and the precipitate awarding of the Contract by the Comelec en banc -- plus the fact that it was racing to have its Contract with MPC implemented in time for the elections in May 2004 (barely four months away) -- have combined to bring about the urgent need for judicial intervention, thus prompting this Court to dispense with the procedural exhaustion of administrative remedies in this case. Main Substantive Issue: Validity of the Award to MPC We come now to the meat of the controversy. Petitioners contend that the award is invalid, since Comelec gravely abused its discretion when it did the following: 1. Awarded the Contract to MPC though it did not even participate in the bidding 2. Allowed MPEI to participate in the bidding despite its failure to meet the mandatory eligibility requirements 3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite the issuance by the BAC of its Report, which 31 formed the basis of the assailed Resolution, only on April 21, 2003 4. Awarded the Contract, notwithstanding the fact that during the bidding process, there were violations of the mandatory requirements of RA 8436 as well as those set forth in Comelecs own Request for Proposal on the automated election system 5. Refused to declare a failed bidding and to conduct a re-bidding despite the failure of the bidders to pass the technical tests conducted by the Department of Science and Technology 6. Failed to follow strictly the provisions of RA 8436 in the conduct of the bidding for the automated counting machines After reviewing the slew of pleadings as well as the matters raised during the Oral Argument, the Court deems it sufficient to focus discussion on the following major areas of concern that impinge on the issue of grave abuse of discretion: A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder B. Failure of the automated counting machines (ACMs) to pass the DOST technical tests C. Remedial measures and re-testings undertaken by Comelec and DOST after the award, and their effect on the present controversy A. Failure to Establish the Identity, Existence and Eligibility of the Alleged Consortium as a Bidder On the question of the identity and the existence of the real bidder, respondents insist that, contrary to petitioners allegations, the bidder was not Mega Pacific eSolutions, Inc. (MPEI), which was incorporated only on February 27, 2003, or 11 days prior to the bidding itself. Rather, the bidder was Mega Pacific Consortium (MPC), of which MPEI was but a part. As proof thereof, they point to the March 7, 2003 letter of intent to bid, signed by the president of MPEI allegedly for and on behalf of MPC. They also call attention to the official receipt issued to MPC, acknowledging payment for the bidding documents, as proof that it was the "consortium" that participated in the bidding process.
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We do not agree. The March 7, 2003 letter, signed by only one signatory -- "Willy U. Yu, President, Mega Pacific eSolutions, Inc., (Lead Company/ Proponent) For: Mega Pacific Consortium" -- and without any further proof, does not by itself prove the existence of the consortium. It does not show that MPEI or its president have been duly pre-authorized by the other members of the putative consortium to represent them, to bid on their collective behalf and, more important, to commit them jointly and severally to the bid undertakings. The letter is purely self-serving and uncorroborated. Neither does an official receipt issued to MPC, acknowledging payment for the bidding documents, constitute proof that it was the purported consortium that participated in the bidding. Such receipts are issued by cashiers without any legally sufficient inquiry as to the real identity orexistence of the supposed payor. To assure itself properly of the due existence (as well as eligibility and qualification) of the putative consortium, Comelecs BAC should have examined the bidding documents submitted on behalf of MPC. They would have easily discovered the following fatal flaws. Two-Envelope, Two-Stage System As stated earlier in our factual presentation, the public bidding system designed by Comelec under its RFP (Request for Proposal for the Automation of the 2004 Election) mandated the use of a two-envelope, two-stage system. A bidders first envelope (Eligibility Envelope) was meant to establish its eligibility to bid and its qualifications and capacity to perform the contract if its bid was accepted, while the second envelope would be the Bid Envelope itself. The Eligibility Envelope was to contain legal documents such as articles of incorporation, business registrations, licenses and permits, mayors permit, VAT certification, and so forth; technical documents containing documentary evidence to establish the track record of the bidder and its technical and production capabilities to perform the contract; and financial documents, including audited financial statements for the last three years, to establish the bidders financial capacity. In the case of a consortium or joint venture desirous of participating in the bidding, it goes without saying that the Eligibility Envelope would necessarily have to include a copy of the joint venture agreement, the consortium agreement or memorandum of agreement -- or a business plan or some other instrument of similar import -- establishing the due existence, composition and scope of such aggrupation. Otherwise, how would Comelec know who it was dealing with, and whether these parties are qualified and capable of 32 delivering the products and services being offered for bidding? In the instant case, no such instrument was submitted to Comelec during the bidding process. This fact can be conclusively ascertained by scrutinizing the two-inch thick "Eligibility Requirements" file submitted by Comelec last October 9, 2003, in partial compliance with this Courts instructions given during the Oral Argument. This file purports to replicate the eligibility documents originally submitted to Comelec by MPEI allegedly on behalf of MPC, in connection with the bidding conducted in March 2003. Included in the file are the incorporation papers and financial statements of the members of the supposed consortium and certain certificates, licenses and permits issued to them. However, there is no sign whatsoever of any joint venture agreement, consortium agreement, memorandum of agreement, or business plan executed among the members of the purported consortium. The only logical conclusion is that no such agreement was ever submitted to the Comelec for its consideration, as part of the bidding process. It thus follows that, prior the award of the Contract, there was no documentary or other basis for Comelec to conclude that a consortium 33 had actually been formed amongst MPEI, SK C&C and WeSolv, along with Election.com and ePLDT. Neither was there anything to indicate the exact relationships between and among these firms; their diverse roles, undertakings and prestations, if any, relative to the prosecution of the project, the extent of their respective investments (if any) in the supposed consortium or in the project; and the precise nature and extent of their respective liabilities with respect to the contract being offered for bidding. And apart from the selfserving letter of March 7, 2003, there was not even any indication that MPEI was the lead company duly authorized to act on behalf of the others. So, it necessarily follows that, during the bidding process, Comelec had no basis at all for determining that the alleged consortium really existed and was eligible and qualified; and that the arrangements among the members were satisfactory and sufficient to ensure delivery on the Contract and to protect the governments interest. Notwithstanding such deficiencies, Comelec still deemed the "consortium" eligible to participate in the bidding, proceeded to open its Second Envelope, and eventually awarded the bid to it, even though -- per the Comelecs own RFP -- the BAC should have declared the MPC ineligible to bid and returned the Second (Bid) Envelope unopened. 215 Election Laws Election Process and/or Proceedings
Inasmuch as Comelec should not have considered MPEI et al. as comprising a consortium or joint venture, it should not have allowed them to avail themselves of the provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build-Operate-Transfer Law), as amended by RA 7718. This provision states in part that a joint venture/consortium proponent shall be evaluated based on the individual or collective experience of the member-firms of the joint venture or consortium and of the contractor(s) that it has engaged for the project. Parenthetically, respondents have uniformly argued that the said IRR of RA 6957, as amended, have suppletory application to the instant case. Hence, had the proponent MPEI been evaluated based solely on its own experience, financial and operational track record or lack thereof, it would surely not have qualified and would have been immediately considered ineligible to bid, as respondents readily admit. At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to observe its own rules, policies and guidelines with respect to the bidding process, thereby negating a fair, honest and competitive bidding. Commissioners Not Aware of Consortium In this regard, the Court is beguiled by the statements of Commissioner Florentino Tuason Jr., given in open court during the Oral Argument last October 7, 2003. The good commissioner affirmed that he was aware, of his own personal knowledge, that there had 34 35 indeed been a written agreement among the "consortium" members, although it was an internal matter among them, and of the fact 36 that it would be presented by counsel for private respondent. However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice Jose C. Vitug, Commissioner Tuason in effect admitted that, while he was the commissioner-in-charge of Comelecs Legal Department, he had never seen, even up to that late date, the 37 agreement he spoke of. Under further questioning, he was likewise unable to provide any information regarding the amounts invested 38 into the project by several members of the claimed consortium. A short while later, he admitted that the Commission had not taken a 39 look at the agreement (if any). He tried to justify his position by claiming that he was not a member of the BAC. Neither was he the commissioner-in-charge of the Phase II Modernization project (the automated election system); but that, in any case, the BAC and the Phase II Modernization Project Team did look into the aspect of the composition of the consortium. It seems to the Court, though, that even if the BAC or the Phase II Team had taken charge of evaluating the eligibility, qualifications and credentials of the consortium-bidder, still, in all probability, the former would have referred the task to Commissioner Tuason, head of Comelecs Legal Department. That task was the appreciation and evaluation of the legal effects and consequences of the terms, conditions, stipulations and covenants contained in any joint venture agreement, consortium agreement or a similar document -assuming of course that any of these was available at the time. The fact that Commissioner Tuason was barely aware of the situation bespeaks the complete absence of such document, or the utter failure or neglect of the Comelec to examine it -- assuming it was available at all -- at the time the award was made on April 15, 2003. In any event, the Court notes for the record that Commissioner Tuason basically contradicted his statements in open court about there 40 being one written agreement among all the consortium members, when he subsequently referred to the four (4) Memoranda of 41 Agreement (MOAs) executed by them. At this juncture, one might ask: What, then, if there are four MOAs instead of one or none at all? Isnt it enough that there are these corporations coming together to carry out the automation project? Isnt it true, as respondent aver, that nowhere in the RFP issued by Comelec is it required that the members of the joint venture execute a single written agreement to prove the existence of a joint venture. Indeed, the intention to be jointly and severally liable may be evidenced not only by a single joint venture agreement, but also by supplementary documents executed by the parties signifying such intention. What then is the big deal? The problem is not that there are four agreements instead of only one. The problem is that Comelec never bothered to check. It never based its decision on documents or other proof that would concretely establish the existence of the claimed consortium or joint venture or agglomeration. It relied merely on the self-serving representation in an uncorroborated letter signed by only one individual, claiming that his company represented a "consortium" of several different corporations. It concluded forthwith that a consortium indeed existed, composed of such and such members, and thereafter declared that the entity was eligible to bid. True, copies of financial statements and incorporation papers of the alleged "consortium" members were submitted. But these papers did not establish the existence of a consortium, as they could have been provided by the companies concerned for purposes other than to prove that they were part of a consortium or joint venture. For instance, the papers may have been intended to show that those companies were each qualified to be a sub-contractor (and nothing more) in a major project. Those documents did not by themselves support the assumption that a consortium or joint venture existed among the companies. In brief, despite the absence of competent proof as to the existence and eligibility of the alleged consortium (MPC), its capacity to deliver on the Contract, and the members joint and several liability therefor, Comelec nevertheless assumed that such consortium 216 Election Laws Election Process and/or Proceedings
existed and was eligible. It then went ahead and considered the bid of MPC, to which the Contract was eventually awarded, in gross violation of the formers own bidding rules and procedures contained in its RFP. Therein lies Comelecs grave abuse of discretion. Sufficiency of the Four Agreements Instead of one multilateral agreement executed by, and effective and binding on, all the five "consortium members" -- as earlier claimed by Commissioner Tuason in open court -- it turns out that what was actually executed were four (4) separate and distinct bilateral 42 Agreements. Obviously, Comelec was furnished copies of these Agreements only after the bidding process had been terminated, as these were not included in the Eligibility Documents. These Agreements are as follows: A Memorandum of Agreement between MPEI and SK C&C A Memorandum of Agreement between MPEI and WeSolv A "Teaming Agreement" between MPEI and Election.com Ltd. A "Teaming Agreement" between MPEI and ePLDT In sum, each of the four different and separate bilateral Agreements is valid and binding only between MPEI and the other contracting party, leaving the other "consortium" members total strangers thereto. Under this setup, MPEI dealt separately with each of the "members," and the latter (WeSolv, SK C&C, Election.com, and ePLDT) in turn had nothing to do with one another, each dealing only with MPEI. Respondents assert that these four Agreements were sufficient for the purpose of enabling the corporations to still qualify (even at that late stage) as a consortium or joint venture, since the first two Agreements had allegedly set forth the joint and several undertakings among the parties, whereas the latter two clarified the parties respective roles with regard to the Project, with MPEI being the independent contractor and Election.com and ePLDT the subcontractors. Additionally, the use of the phrase "particular contract" in the Comelecs Request for Proposal (RFP), in connection with the joint and several liabilities of companies in a joint venture, is taken by them to mean that all the members of the joint venture need not be solidarily liable for the entire project or joint venture, because it is sufficient that the lead company and the member in charge of a particular contract or aspect of the joint venture agree to be solidarily liable. At this point, it must be stressed most vigorously that the submission of the four bilateral Agreements to Comelec after the end of the bidding process did nothing to eliminate the grave abuse of discretion it had already committed on April 15, 2003. Deficiencies Have Not Been "Cured" In any event, it is also claimed that the automation Contract awarded by Comelec incorporates all documents executed by the "consortium" members, even if these documents are not referred to therein. The basis of this assertion appears to be the passages from Section 1.4 of the Contract, which is reproduced as follows: "All Contract Documents shall form part of the Contract even if they or any one of them is not referred to or mentioned in the Contract as forming a part thereof. Each of the Contract Documents shall be mutually complementary and explanatory of each other such that what is noted in one although not shown in the other shall be considered contained in all, and what is required by any one shall be as binding as if required by all, unless one item is a correction of the other. "The intent of the Contract Documents is the proper, satisfactory and timely execution and completion of the Project, in accordance with the Contract Documents. Consequently, all items necessary for the proper and timely execution and completion of the Project shall be deemed included in the Contract." Thus, it is argued that whatever perceived deficiencies there were in the supplementary contracts -- those entered into by MPEI and the other members of the "consortium" as regards their joint and several undertakings -- have been cured. Better still, such deficiencies have supposedly been prevented from arising as a result of the above-quoted provisions, from which it can be immediately established that each of the members of MPC assumes the same joint and several liability as the other members. The foregoing argument is unpersuasive. First, the contract being referred to, entitled "The Automated Counting and Canvassing Project Contract," is between Comelec and MPEI, not the alleged consortium, MPC. To repeat, it is MPEI -- not MPC -- that is a party to the Contract. Nowhere in that Contract is there any mention of a consortium or joint venture, of members thereof, much less of joint and 43 several liability. Supposedly executed sometime in May 2003, the Contract bears a notarization date of June 30, 2003, and contains the signature of Willy U. Yu signing as president of MPEI (not for and on behalf of MPC), along with that of the Comelec chair. It 217 Election Laws Election Process and/or Proceedings
provides in Section 3.2 that MPEI (not MPC) is to supply the Equipment and perform the Services under the Contract, in accordance with the appendices thereof; nothing whatsoever is said about any consortium or joint venture or partnership. Second, the portions of Section 1.4 of the Contract reproduced above do not have the effect of curing (much less preventing) deficiencies in the bilateral agreements entered into by MPEI with the other members of the "consortium," with respect to their joint and several liabilities. The term "Contract Documents," as used in the quoted passages of Section 1.4, has a well-defined meaning and actually refers only to the following documents: The Contract itself along with its appendices The Request for Proposal (also known as "Terms of Reference") issued by the Comelec, including the Tender Inquiries and Bid Bulletins The Tender Proposal submitted by MPEI In other words, the term "Contract Documents" cannot be understood as referring to or including the MOAs and the Teaming Agreements entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT. This much is very clear and admits of no debate. The attempt to use the provisions of Section 1.4 to shore up the MOAs and the Teaming Agreements is simply unwarranted. Third and last, we fail to see how respondents can arrive at the conclusion that, from the above-quoted provisions, it can be immediately established that each of the members of MPC assumes the same joint and several liability as the other members. Earlier, respondents claimed exactly the opposite -- that the two MOAs (between MPEI and SK C&C, and between MPEI and WeSolv) had set forth the joint and several undertakings among the parties; whereas the two Teaming Agreements clarified the parties respective roles with regard to the Project, with MPEI being the independent contractor and Election.com and ePLDT the subcontractors. Obviously, given the differences in their relationships, their respective liabilities cannot be the same. Precisely, the very clear terms and stipulations contained in the MOAs and the Teaming Agreements -- entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT -- negate the idea that these "members" are on a par with one another and are, as such, assuming the same joint and several liability. Moreover, respondents have earlier seized upon the use of the term "particular contract" in the Comelecs Request for Proposal (RFP), in order to argue that all the members of the joint venture did not need to be solidarily liable for the entire project or joint venture. It was sufficient that the lead company and the member in charge of a particular contract or aspect of the joint venture would agree to be solidarily liable. The glaring lack of consistency leaves us at a loss. Are respondents trying to establish the same joint and solidary liability among all the "members" or not? Enforcement of Liabilities Problematic Next, it is also maintained that the automation Contract between Comelec and the MPEI confirms the solidary undertaking of the lead company and the consortium member concerned for each particular Contract, inasmuch as the position of MPEI and anyone else performing the services contemplated under the Contract is described therein as that of an independent contractor. The Court does not see, however, how this conclusion was arrived at. In the first place, the contractual provision being relied upon by respondents is Article 14, "Independent Contractors," which states: "Nothing contained herein shall be construed as establishing or creating between the COMELEC and MEGA the relationship of employee and employer or principal and agent, it being understood that the position of MEGA and of anyone performing the Services contemplated under this Contract, is that of an independent contractor." Obviously, the intent behind the provision was simply to avoid the creation of an employer-employee or a principal-agent relationship and the complications that it would produce. Hence, the Article states that the role or position of MPEI, or anyone else performing on its behalf, is that of an independent contractor. It is obvious to the Court that respondents are stretching matters too far when they claim that, because of this provision, the Contract in effect confirms the solidary undertaking of the lead company and the consortium member concerned for the particular phase of the project. This assertion is an absolute non sequitur. Enforcement of Liabilities Under the Civil Code Not Possible In any event, it is claimed that Comelec may still enforce the liability of the "consortium" members under the Civil Code provisions on partnership, reasoning that MPEI et al. represented themselves as partners and members of MPC for purposes of bidding for the Project. They are, therefore, liable to the Comelec to the extent that the latter relied upon such representation. Their liability as partners is solidary with respect to everything chargeable to the partnership under certain conditions.
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The Court has two points to make with respect to this argument. First, it must be recalled that SK C&C, WeSolv, Election.com and ePLDT never represented themselves as partners and members of MPC, whether for purposes of bidding or for something else. It was MPEI alone that represented them to be members of a "consortium" it supposedly headed. Thus, its acts may not necessarily be held against the other "members." Second, this argument of the OSG in its Memorandum might possibly apply in the absence of a joint venture agreement or some other writing that discloses the relationship of the "members" with one another. But precisely, this case does not deal with a situation in which there is nothing in writing to serve as reference, leaving Comelec to rely on mere representations and therefore justifying a falling back on the rules on partnership. For, again, the terms and stipulations of the MOAs entered into by MPEI with SK C&C and WeSolv, as well as the Teaming Agreements of MPEI with Election.com and ePLDT (copies of which have been furnished the Comelec) are very clear with respect to the extent and the limitations of the firms respective liabilities. In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while joint and several with MPEI, are limited only to the particular areas of work wherein their services are engaged or their products utilized. As for Election.com and ePLDT, their separate "Teaming Agreements" specifically ascribe to them the role of subcontractor vis--vis MPEI as contractor and, based on the terms of 45 their particular agreements, neither Election.com nor ePLDT is, with MPEI, jointly and severally liable to Comelec. It follows then that in the instant case, there is no justification for anyone, much less Comelec, to resort to the rules on partnership and partners liabilities. Eligibility of a Consortium Based on the Collective Qualifications of Its Members Respondents declare that, for purposes of assessing the eligibility of the bidder, the members of MPC should be evaluated on a collective basis. Therefore, they contend, the failure of MPEI to submit financial statements (on account of its recent incorporation) should not by itself disqualify MPC, since the other members of the "consortium" could meet the criteria set out in the RFP. Thus, according to respondents, the collective nature of the undertaking of the members of MPC, their contribution of assets and sharing of risks, and the community of their interest in the performance of the Contract lead to these reasonable conclusions: (1) that their collective qualifications should be the basis for evaluating their eligibility; (2) that the sheer enormity of the project renders it improbable to expect any single entity to be able to comply with all the eligibility requirements and undertake the project by itself; and (3) that, as argued by the OSG, the RFP allows bids from manufacturers, suppliers and/or distributors that have formed themselves into a joint venture, in recognition of the virtual impossibility of a single entitys ability to respond to the Invitation to Bid. Additionally, argues the Comelec, the Implementing Rules and Regulations of RA 6957 (the Build-Operate-Transfer Law) as amended by RA 7718 would be applicable, as proponents of BOT projects usually form joint ventures or consortiums. Under the IRR, a joint venture/consortium proponent shall be evaluated based on the individual or the collective experience of the member-firms of the joint venture/consortium and of the contractors the proponent has engaged for the project. Unfortunately, this argument seems to assume that the "collective" nature of the undertaking of the members of MPC, their contribution of assets and sharing of risks, and the "community" of their interest in the performance of the Contract entitle MPC to be treated as a joint venture or consortium; and to be evaluated accordingly on the basis of the members collective qualifications when, in fact, the evidence before the Court suggest otherwise. This Court in Kilosbayan v. Guingona defined joint venture as "an association of persons or companies jointly undertaking some commercial enterprise; generally, all contribute assets and share risks. It requires a community of interest in the performance of the subject matter, a right to direct and govern the policy in connection therewith, and [a] duty, which may be altered by agreement to share both in profit and losses." Going back to the instant case, it should be recalled that the automation Contract with Comelec was not executed by the "consortium" MPC -- or by MPEI for and on behalf of MPC -- but by MPEI, period. The said Contract contains no mention whatsoever of any consortium or members thereof. This fact alone seems to contradict all the suppositions about a joint undertaking that would normally apply to a joint venture or consortium: that it is a commercial enterprise involving a community of interest, a sharing of risks, profits and losses, and so on. Now let us consider the four bilateral Agreements, starting with the Memorandum of Agreement between MPEI and WeSolv Open Computing, Inc., dated March 5, 2003. The body of the MOA consists of just seven (7) short paragraphs that would easily fit in one page! It reads as follows: "1. The parties agree to cooperate in successfully implementing the Project in the substance and form as may be most beneficial to both parties and other subcontractors involved in the Project. "2. Mega Pacific shall be responsible for any contract negotiations and signing with the COMELEC and, subject to the latters approval, agrees to give WeSolv an opportunity to be present at meetings with the COMELEC concerning WeSolvs portion of the Project. 219 Election Laws Election Process and/or Proceedings
46 44
"3. WeSolv shall be jointly and severally liable with Mega Pacific only for the particular products and/or services supplied by the former for the Project. "4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon by the parties. "5. The parties undertake to do all acts and such other things incidental to, necessary or desirable or the attainment of the objectives and purposes of this Agreement. "6. In the event that the parties fail to agree on the terms and conditions of the supply of the products and services including but not limited to the scope of the products and services to be supplied and payment terms, WeSolv shall cease to be bound by its obligations stated in the aforementioned paragraphs. "7. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible. Should the parties be unable to do so, the parties hereby agree to settle their dispute through arbitration in accordance with the existing laws of the Republic of the Philippines." (Underscoring supplied.) Even shorter is the Memorandum of Agreement between MPEI and SK C&C Co. Ltd., dated March 9, 2003, the body of which consists of only six (6) paragraphs, which we quote: "1. All parties agree to cooperate in achieving the Consortiums objective of successfully implementing the Project in the substance and form as may be most beneficial to the Consortium members and in accordance w/ the demand of the RFP. "2. Mega Pacific shall have full powers and authority to represent the Consortium with the Comelec, and to enter and sign, for and in behalf of its members any and all agreement/s which maybe required in the implementation of the Project. "3. Each of the individual members of the Consortium shall be jointly and severally liable with the Lead Firm for the particular products and/or services supplied by such individual member for the project, in accordance with their respective undertaking or sphere of responsibility. "4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon by the parties. "5. The parties undertake to do all acts and such other things incidental to, necessary or desirable for the attainment of the objectives and purposes of this Agreement. "6. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible. Should the parties be unable to do so, the parties hereby agree to settle their dispute through arbitration in accordance with the existing laws of the Republic of the Philippines." (Underscoring supplied.) It will be noted that the two Agreements quoted above are very similar in wording. Neither of them contains any specifics or details as to the exact nature and scope of the parties respective undertakings, performances and deliverables under the Agreement with respect to the automation project. Likewise, the two Agreements are quite bereft of pesos-and-centavos data as to the amount of investments each party contributes, its respective share in the revenues and/or profit from the Contract with Comelec, and so forth -- all of which are normal for agreements of this nature. Yet, according to public and private respondents, the participation of MPEI, WeSolv and SK C&C comprises fully 90 percent of the entire undertaking with respect to the election automation project, which is worth about P1.3 billion. As for Election.com and ePLDT, the separate "Teaming Agreements" they entered into with MPEI for the remaining 10 percent of the entire project undertaking are ironically much longer and more detailed than the MOAs discussed earlier. Although specifically ascribing to them the role of subcontractor vis--vis MPEI as contractor, these Agreements are, however, completely devoid of any pricing data or payment terms. Even the appended Schedules supposedly containing prices of goods and services are shorn of any price data. Again, as mentioned earlier, based on the terms of their particular Agreements, neither Election.com nor ePLDT -- with MPEI -- is jointly and severally liable to Comelec. It is difficult to imagine how these bare Agreements -- especially the first two -- could be implemented in practice; and how a dispute between the parties or a claim by Comelec against them, for instance, could be resolved without lengthy and debilitating litigations. Absent any clear-cut statement as to the exact nature and scope of the parties respective undertakings, commitments, deliverables and covenants, one party or another can easily dodge its obligation and deny or contest its liability under the Agreement; or claim that it is the other party that should have delivered but failed to. Likewise, in the absence of definite indicators as to the amount of investments to be contributed by each party, disbursements for expenses, the parties respective shares in the profits and the like, it seems to the Court that this situation could readily give rise to all kinds of misunderstandings and disagreements over money matters. 220 Election Laws Election Process and/or Proceedings
Under such a scenario, it will be extremely difficult for Comelec to enforce the supposed joint and several liabilities of the members of the "consortium." The Court is not even mentioning the possibility of a situation arising from a failure of WeSolv and MPEI to agree on the scope, the terms and the conditions for the supply of the products and services under the Agreement. In that situation, by virtue of paragraph 6 of its MOA, WeSolv would perforce cease to be bound by its obligations -- including its joint and solidary liability with MPEI under the MOA -- and could forthwith disengage from the project. Effectively, WeSolv could at any time unilaterally exit from its MOA with MPEI by simply failing to agree. Where would that outcome leave MPEI and Comelec? To the Court, this strange and beguiling arrangement of MPEI with the other companies does not qualify them to be treated as a consortium or joint venture, at least of the type that government agencies like the Comelec should be dealing with. With more reason is it unable to agree to the proposal to evaluate the members of MPC on a collective basis. In any event, the MPC members claim to be a joint venture/consortium; and respondents have consistently been arguing that the IRR for RA 6957, as amended, should be applied to the instant case in order to allow a collective evaluation of consortium members. Surprisingly, considering these facts, respondents have not deemed it necessary for MPC members to comply with Section 5.4 (a) (iii) of the IRR for RA 6957 as amended. According to the aforementioned provision, if the project proponent is a joint venture or consortium, the members or participants thereof are required to submit a sworn statement that, if awarded the contract, they shall bind themselves to be jointly, severally and solidarily liable for the project proponents obligations thereunder. This provision was supposed to mirror Section 5 of RA 6957, as amended, which states: "In all cases, a consortium that participates in a bid must present proof that the members of the consortium have bound themselves jointly and severally to assume responsibility for any project. The withdrawal of any member of the consortium prior to the implementation of the project could be a ground for the cancellation of the contract." The Court has certainly not seen any joint and several undertaking by the MPC members that even approximates the tenor of that which is described above. We fail to see why respondents should invoke the IRR if it is for their benefit, but refuse to comply with it otherwise. B. DOST Technical Tests Flunked by the Automated Counting Machines Let us now move to the second subtopic, which deals with the substantive issue: the ACMs failure to pass the tests of the Department of Science and Technology (DOST). After respondent "consortium" and the other bidder, TIM, had submitted their respective bids on March 10, 2003, the Comelecs BAC -through its Technical Working Group (TWG) and the DOST -- evaluated their technical proposals. Requirements that were highly technical in nature and that required the use of certain equipment in the evaluation process were referred to the DOST for testing. The Department reported thus:
TEST RESULTS MATRIX
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Technical Evaluation of Automated Counting Machine MEGA-PACIFIC CONSORTIUM YES 1. Does the machine have an accuracy rating of at least 99.995 percent At COLD environmental condition At NORMAL environmental conditions At HARSH environmental conditions 2. Accurately records and reports the date and time of the start and end of counting of ballots per precinct? 3. Prints election returns without any loss of date during generation of such reports? 221 Election Laws Election Process and/or Proceedings NO TOTAL INFORMATION MANAGEMENT YES NO
KEY QUESTIONS
REQUIREMENTS
4. Uninterruptible back-up power system, that will engage immediately to allow operation of at least 10 minutes after outage, power surge or abnormal electrical occurrences? 5. Machine reads two-sided ballots in one pass?
Note: This particular requirement needs further verification
6. Machine can detect previously counted ballots and prevent previously counted ballots from being counted more than once? 7. Stores results of counted votes by precinct in external (removable) storage device?
8. Data stored in external media is encrypted?
9. Physical key or similar device allows, limits, or restricts operation of the machine? 10. CPU speed is at least 400mHz?
11. Port to allow use of dot-matrix printers? 12. Generates printouts of the election returns in a format specified by the COMELEC? Generates printouts In format specified by COMELEC 13. Prints election returns without any loss of data during generation of such report? 14. Generates an audit trail of the counting machine, both hard copy and soft copy? Hard copy Soft copy
Note: This particular requirement
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needs further verification 15. Does the City/Municipal Canvassing System consolidate results from all precincts within it using the encrypted soft copy of the data generated by the counting machine and stored on the removable data storage device? Note: This particular requirement needs further verification Note: This particular requirement needs further verification Note: This particular requirement needs further verification Note: This particular requirement needs further verification Note: This particular requirement needs further verification Note: This particular requirement needs further verification 20. Is the Program able to detect previously downloaded precinct results and prevent these from being inputted again into the System? Note: This particular requirement needs further verification
16. Does the City/Municipal Canvassing System consolidate results from all precincts within it using the encrypted soft copy of the data generated by the counting machine and transmitted through an electronic transmission media?
17. Does the system output a Zero City/Municipal Canvass Report, which is printed on election day prior to the conduct of the actual canvass operation, that shows that all totals for all the votes for all the candidates and other information, are indeed zero or null?
18. Does the system consolidate results from all precincts in the city/municipality using the data storage device coming from the counting machine?
19. Is the machine 100% accurate?
21. The System is able to print the specified reports and the audit trail without any loss of data during generation of the above-mentioned reports? Prints specified reports Audit Trail 22. Can the result of the city/municipal consolidation be stored in a data storage device? Note: This particular requirement 223 Election Laws Election Process and/or Proceedings
needs further verification 23. Does the system consolidate results from all precincts in the provincial/district/ national using the data storage device from different levels of consolidation? Note: This particular requirement needs further verification Note: This particular requirement needs further verification 25. Is the Program able to detect previously downloaded precinct results and prevent these from being inputted again into the System? Note: This particular requirement needs further verification
24. Is the system 100% accurate?
26. The System is able to print the specified reports and the audit trail without any loss of data during generation of the abovementioned reports? Prints specified reports Audit Trail Note: This particular requirement needs further verification 27. Can the results of the provincial/district/national consolidation be stored in a data storage device? Note: This particular requirement needs further verification According to respondents, it was only after the TWG and the DOST had conducted their separate tests and submitted their respective reports that the BAC, on the basis of these reports formulated its comments/recommendations on the bids of the consortium and TIM. The BAC, in its Report dated April 21, 2003, recommended that the Phase II project involving the acquisition of automated counting machines be awarded to MPEI. It said: "After incisive analysis of the technical reports of the DOST and the Technical Working Group for Phase II Automated Counting Machine, the BAC considers adaptability to advances in modern technology to ensure an effective and efficient method, as well as the security and integrity of the system. "The results of the evaluation conducted by the TWG and that of the DOST (14 April 2003 report), would show the apparent advantage of Mega-Pacific over the other competitor, TIM.
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"The BAC further noted that both Mega-Pacific and TIM obtained some failed marks in the technical evaluation. In general, the failed marks of Total Information Management as enumerated above affect the counting machine itself which are material in nature, constituting non-compliance to the RFP. On the other hand, the failed marks of Mega-Pacific are mere formalities on certain documentary requirements which the BAC may waive as clearly indicated in the Invitation to Bid. "In the DOST test, TIM obtained 12 failed marks and mostly attributed to the counting machine itself as stated earlier. These are requirements of the RFP and therefore the BAC cannot disregard the same. "Mega-Pacific failed in 8 items however these are mostly on the software which can be corrected by reprogramming the software and therefore can be readily corrected. "The BAC verbally inquired from DOST on the status of the retest of the counting machines of the TIM and was informed that the report will be forthcoming after the holy week. The BAC was informed that the retest is on a different parameters theyre being two different machines being tested. One purposely to test if previously read ballots will be read again and the other for the other features such as two sided ballots. "The said machine and the software therefore may not be considered the same machine and program as submitted in the Technical proposal and therefore may be considered an enhancement of the original proposal. "Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by Executive Director Ronaldo T. Viloria of DOST is that the result of the test in the two counting machines of TIM contains substantial errors that may lead to the failure of these machines based on the specific items of the RFP that DOST has to certify. OPENING OF FINANCIAL BIDS "The BAC on 15 April 2003, after notifying the concerned bidders opened the financial bids in their presence and the results were as follows: Mega-Pacific: Option 1 Outright purchase: Bid Price if Php1,248,949,088.00 Option 2 Lease option: 70% Down payment of cost of hardware or Php642,755,757.07 Remainder payable over 50 months or a total of Php642,755,757.07 Discount rate of 15% p.a. or 1.2532% per month. Total Number of Automated Counting Machine 1,769 ACMs (Nationwide) TIM: Total Bid Price Php1,297,860,560.00 Total Number of Automated Counting Machine 2,272 ACMs (Mindanao and NCR only) "Premises considered, it appears that the bid of Mega Pacific is the lowest calculated responsive bid, and therefore, the Bids and Awards Committee (BAC) recommends that the Phase II project re Automated Counting Machine be awarded to Mega 48 Pacific eSolutions, Inc." The BAC, however, also stated on page 4 of its Report: "Based on the 14 April 2003 report (Table 6) of the DOST, it appears that both Mega-Pacific and TIM (Total Information Management Corporation) failed to meet some of the requirements. Below is a comparative presentation of the requirements wherein Mega-Pacific or TIM or both of them failed: x x x." What followed was a list of "key requirements," referring to technical requirements, and an indication of which of the two bidders had failed to meet them. Failure to Meet the Required Accuracy Rating
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The first of the key requirements was that the counting machines were to have an accuracy rating of at least 99.9995 percent. The BAC Report indicates that both Mega Pacific and TIM failed to meet this standard. The key requirement of accuracy rating happens to be part and parcel of the Comelecs Request for Proposal (RFP). The RFP, on page 26, even states that the ballot counting machines and ballot counting software "must have an accuracy rating of 99.9995% (not merely 99.995%) or better as certified by a reliable independent testing agency." When questioned on this matter during the Oral Argument, Commissioner Borra tried to wash his hands by claiming that the required accuracy rating of 99.9995 percent had been set by a private sector group in tandem with Comelec. He added that the Commission had merely adopted the accuracy rating as part of the groups recommended bid requirements, which it had not bothered to amend even after being advised by DOST that such standard was unachievable. This excuse, however, does not in any way lessen Comelecs responsibility to adhere to its own published bidding rules, as well as to see to it that the consortium indeed meets the accuracy standard. Whichever accuracy rating is the right standard -- whether 99.995 or 99.9995 percent -- the fact remains that the machines of the so-called "consortium" failed to even reach the lesser of the two. On this basis alone, it ought to have been disqualified and its bid rejected outright. At this point, the Court stresses that the essence of public bidding is violated by the practice of requiring very high standards or unrealistic specifications that cannot be met -- like the 99.9995 percent accuracy rating in this case -- only to water them down after the bid has been award. Such scheme, which discourages the entry of prospective bona fide bidders, is in fact a sure indication of fraud in the bidding, designed to eliminate fair competition. Certainly, if no bidder meets the mandatory requirements, standards or specifications, then no award should be made and a failed bidding declared. Failure of Software to Detect Previously Downloaded Data Furthermore, on page 6 of the BAC Report, it appears that the "consortium" as well as TIM failed to meet another key requirement -- for the counting machines software program to be able to detect previously downloaded precinct results and to prevent these from being entered again into the counting machine. This same deficiency on the part of both bidders reappears on page 7 of the BAC Report, as a result of the recurrence of their failure to meet the said key requirement. That the ability to detect previously downloaded data at different canvassing or consolidation levels is deemed of utmost importance can be seen from the fact that it is repeated three times in the RFP. On page 30 thereof, we find the requirement that the city/municipal canvassing system software must be able to detect previously downloaded precinct results and prevent these from being "inputted" again into the system. Again, on page 32 of the RFP, we read that the provincial/district canvassing system software must be able to detect previously downloaded city/municipal results and prevent these from being "inputted" again into the system. And once more, on page 35 of the RFP, we find the requirement that the national canvassing system software must be able to detect previously downloaded provincial/district results and prevent these from being "inputted" again into the system. Once again, though, Comelec chose to ignore this crucial deficiency, which should have been a cause for the gravest concern. Come May 2004, unscrupulous persons may take advantage of and exploit such deficiency by repeatedly downloading and feeding into the computers results favorable to a particular candidate or candidates. We are thus confronted with the grim prospect of election fraud on a massive scale by means of just a few key strokes. The marvels and woes of the electronic age! Inability to Print the Audit Trail But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate that the ACMs of both bidders were unable to print the audit trail without any loss of data. In the case of MPC, the audit trail system was "not yet incorporated" into its ACMs. This particular deficiency is significant, not only to this bidding but to the cause of free and credible elections. The purpose of requiring audit trails is to enable Comelec to trace and verify the identities of the ACM operators responsible for data entry and downloading, as well as the times when the various data were downloaded into the canvassing system, in order to forestall fraud and to identify the perpetrators. Thus, the RFP on page 27 states that the ballot counting machines and ballot counting software must print an audit trail of all machine operations for documentation and verification purposes. Furthermore, the audit trail must be stored on the internal storage device and be available on demand for future printing and verifying. On pages 30-31, the RFP also requires that the city/municipal canvassing system software be able to print an audit trail of the canvassing operations, including therein such data as the date and time the canvassing program was started, the log-in of the authorized users (the identity of the machine operators), the date and time the canvass data were downloaded into the canvassing system, and so on and so forth. On page 33 of the RFP, we find the same audit trail requirement with respect to the provincial/district canvassing system software; and again on pages 35-36 thereof, the same audit trail requirement with respect to the national canvassing system software.
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That this requirement for printing audit trails is not to be lightly brushed aside by the BAC or Comelec itself as a mere formality or technicality can be readily gleaned from the provisions of Section 7 of RA 8436, which authorizes the Commission to use an automated system for elections. The said provision which respondents have quoted several times, provides that ACMs are to possess certain features divided into two classes: those that the statute itself considers mandatory and other features or capabilities that the law deems optional. Among those considered mandatory are "provisions for audit trails"! Section 7 reads as follows: "The System shall contain the following features: (a) use of appropriate ballots; (b) stand-alone machine which can count votes and an automated system which can consolidate the results immediately; (c) with provisions for audit trails; (d) minimum human intervention; and (e) adequate safeguard/security measures." (Italics and emphases supplied.) In brief, respondents cannot deny that the provision requiring audit trails is indeed mandatory, considering the wording of Section 7 of RA 8436. Neither can Respondent Comelec deny that it has relied on the BAC Report, which indicates that the machines or the software was deficient in that respect. And yet, the Commission simply disregarded this shortcoming and awarded the Contract to private respondent, thereby violating the very law it was supposed to implement. C. Inadequacy of Post Facto Remedial Measures Respondents argue that the deficiencies relating to the detection of previously downloaded data, as well as provisions for audit trails, are mere shortcomings or minor deficiencies in software or programming, which can be rectified. Perhaps Comelec simply relied upon the BAC Report, which states on page 8 thereof that "Mega Pacific failed in 8 items[;] however these are mostly on the software which can be corrected by re-programming x x x and therefore can be readily corrected." The undersigned ponentes questions, some of which were addressed to Commissioner Borra during the Oral Argument, remain unanswered to this day. First of all, who made the determination that the eight "fail" marks of Mega Pacific were on account of the software -- was it DOST or TWG? How can we be sure these failures were not the results of machine defects? How was it determined that the software could actually be re-programmed and thereby rectified? Did a qualified technical expert read and analyze the source 49 code for the programs and conclude that these could be saved and remedied? (Such determination cannot be done by any other means save by the examination and analysis of the source code.) Who was this qualified technical expert? When did he carry out the study? Did he prepare a written report on his findings? Or did the Comelec just make a wild guess? It does not follow that all defects in software programs can be rectified, and the programs saved. In the information technology sector, it is common knowledge that there are many badly written programs, with significant programming errors written into them; hence it does not make economic sense to try to correct the programs; instead, programmers simply abandon them and just start from scratch. Theres no telling if any of these programs is unrectifiable, unless a qualified programmer reads the source code. And if indeed a qualified expert reviewed the source code, did he also determine how much work would be needed to rectify the programs? And how much time and money would be spent for that effort? Who would carry out the work? After the rectification process, who would ascertain and how would it be ascertained that the programs have indeed been properly rectified, and that they would work properly thereafter? And of course, the most important question to ask: could the rectification be done in time for the elections in 2004? Clearly, none of the respondents bothered to think the matter through. Comelec simply took the word of the BAC as gospel truth, without even bothering to inquire from DOST whether it was true that the deficiencies noted could possibly be remedied by re programming the software. Apparently, Comelec did not care about the software, but focused only on purchasing the machines. What really adds to the Courts dismay is the admission made by Commissioner Borra during the Oral Argument that the software currently being used by Comelec was merely the "demo" version, inasmuch as the final version that would actually be used in the elections was still being developed and had not yet been finalized. It is not clear when the final version of the software would be ready for testing and deployment. It seems to the Court that Comelec is just keeping its fingers crossed and hoping the final product would work. Is there a "Plan B" in case it does not? Who knows? But all these software programs are part and parcel of the bidding and the Contract awarded to the Consortium. Why is it that the machines are already being brought in and paid for, when there is as yet no way of knowing if the final version of the software would be able to run them properly, as well as canvass and consolidate the results in the manner required? The counting machines, as well as the canvassing system, will never work properly without the correct software programs. There is an old adage that is still valid to this day: "Garbage in, garbage out." No matter how powerful, advanced and sophisticated the computers Election Laws Election Process and/or Proceedings
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and the servers are, if the software being utilized is defective or has been compromised, the results will be no better than garbage. And to think that what is at stake here is the 2004 national elections -- the very basis of our democratic life. Correction of Defects? To their Memorandum, public respondents proudly appended 19 Certifications issued by DOST declaring that some 285 counting machines had been tested and had passed the acceptance testing conducted by the Department on October 8-18, 2003. Among those tested were some machines that had failed previous tests, but had undergone adjustments and thus passed re-testing. Unfortunately, the Certifications from DOST fail to divulge in what manner and by what standards or criteria the condition, performance and/or readiness of the machines were re-evaluated and re-appraised and thereafter given the passing mark. Apart from that fact, the remedial efforts of respondents were, not surprisingly, apparently focused again on the machines -- the hardware. Nothing was said or done about the software -- the deficiencies as to detection and prevention of downloading and entering previously downloaded data, as well as the capability to print an audit trail. No matter how many times the machines were tested and re-tested, if nothing was done about the programming defects and deficiencies, the same danger of massive electoral fraud remains. As anyone who has a modicum of knowledge of computers would say, "Thats elementary!" And only last December 5, 2003, an Inq7.net news report quoted the Comelec chair as saying that the new automated poll system would be used nationwide in May 2004, even as the software for the system remained unfinished. It also reported that a certain Titus Manuel of the Philippine Computer Society, which was helping Comelec test the hardware and software, said that the software for the counting still had to be submitted on December 15, while the software for the canvassing was due in early January. Even as Comelec continues making payments for the ACMs, we keep asking ourselves: who is going to ensure that the software would be tested and would work properly? At any rate, the re-testing of the machines and/or the 100 percent testing of all machines (testing of every single unit) would not serve to eradicate the grave abuse of discretion already committed by Comelec when it awarded the Contract on April 15, 2003, despite the obvious and admitted flaws in the bidding process, the failure of the "winning bidder" to qualify, and the inability of the ACMs and the intended software to meet the bid requirements and rules. Comelecs Latest "Assurances" Are Unpersuasive Even the latest pleadings filed by Comelec do not serve to allay our apprehensions. They merely affirm and compound the serious violations of law and gravely abusive acts it has committed. Let us examine them. The Resolution issued by this Court on December 9, 2003 required respondents to inform it as to the number of ACMs delivered and paid for, as well as the total payment made to date for the purchase thereof. They were likewise instructed to submit a certification from the DOST attesting to the number of ACMs tested, the number found to be defective; and "whether the reprogrammed software has 50 been tested and found to have complied with the requirements under Republic Act No. 8436." In its "Partial Compliance and Manifestation" dated December 29, 2003, Comelec informed the Court that 1,991 ACMs had already been delivered to the Commission as of that date. It further certified that it had already paid the supplier the sum of P849,167,697.41, 51 which corresponded to 1,973 ACM units that had passed the acceptance testing procedures conducted by the MIRDC-DOST and which had therefore been accepted by the poll body. In the same submission, for the very first time, Comelec also disclosed to the Court the following: "The Automated Counting and Canvassing Project involves not only the manufacturing of the ACM hardware but also the development of three (3) types of software, which are intended for use in the following: 1. Evaluation of Technical Bids 2. Testing and Acceptance Procedures 3. Election Day Use." Purchase of the First Type of Software Without Evaluation In other words, the first type of software was to be developed solely for the purpose of enabling the evaluation of the bidders technical bid. Comelec explained thus: "In addition to the presentation of the ACM hardware, the bidders were required to develop a base software program that will enable the ACM to function properly. Since the software program utilized during the evaluation of bids is not 228 Election Laws Election Process and/or Proceedings
the actual software program to be employed on election day, there being two (2) other types of software program that will still have to be developed and thoroughly tested prior to actual election day use, defects in the base software that can be readily corrected by reprogramming are considered minor in nature, and may therefore be waived." In short, Comelec claims that it evaluated the bids and made the decision to award the Contract to the "winning" bidder partly on the basis of the operation of the ACMs running a "base" software. That software was therefore nothing but a sample or "demo" software, which would not be the actual one that would be used on election day. Keeping in mind that the Contract involves the acquisition of not just the ACMs or the hardware, but also the software that would run them, it is now even clearer that the Contract was awarded without Comelec having seen, much less evaluated, the final product -- the software that would finally be utilized come election day. (Not even the "near-final" product, for that matter). What then was the point of conducting the bidding, when the software that was the subject of the Contract was still to be created and could conceivably undergo innumerable changes before being considered as being in final form? And that is not all! No Explanation for Lapses in the Second Type of Software The second phase, allegedly involving the second type of software, is simply denominated "Testing and Acceptance Procedures." As best as we can construe, Comelec is claiming that this second type of software is also to be developed and delivered by the supplier in connection with the "testing and acceptance" phase of the acquisition process. The previous pleadings, though -- including the DOST reports submitted to this Court -- have not heretofore mentioned any statement, allegation or representation to the effect that a particular set of software was to be developed and/or delivered by the supplier in connection with the testing and acceptance of delivered ACMs. What the records do show is that the imported ACMs were subjected to the testing and acceptance process conducted by the DOST. Since the initial batch delivered included a high percentage of machines that had failed the tests, Comelec asked the DOST to conduct a 100 percent testing; that is, to test every single one of the ACMs delivered. Among the machines tested on October 8 to 18, 2003, were some units that had failed previous tests but had subsequently been re-tested and had passed. To repeat, however, until now, there has never been any mention of a second set or type of software pertaining to the testing and acceptance process. In any event, apart from making that misplaced and uncorroborated claim, Comelec in the same submission also professes (in response to the concerns expressed by this Court) that the reprogrammed software has been tested and found to have complied with the requirements of RA 8436. It reasoned thus: "Since the software program is an inherent element in the automated counting system, the certification issued by the MIRDC-DOST that one thousand nine hundred seventy-three (1,973) units passed the acceptance test procedures is an official recognition by the MIRDC-DOST that the software component of the automated election system, which has been reprogrammed to comply with the provisions of Republic Act No. 8436 as prescribed in the Ad Hoc Technical Evaluation Committees ACM Testing and Acceptance Manual, has passed the MIRDC-DOST tests." The facts do not support this sweeping statement of Comelec. A scrutiny of the MIRDC-DOST letter dated December 15, 2003, it relied upon, does not justify its grand conclusion. For claritys sake, we quote in full the letter-certification, as follows: "15 December 2003 "HON. RESURRECCION Z. BORRA Commissioner-in-Charge Phase II, Modernization Project Commission on Elections Intramuros, Manila Attention: Atty. Jose M. Tolentino, Jr. Project Director "Dear Commissioner Borra: "We are pleased to submit 11 DOST Test Certifications representing 11 lots and covering 158 units of automated counting machines (ACMs) that we have tested from 02-12 December 2003. 229 Election Laws Election Process and/or Proceedings
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which
"To date, we have tested all the 1,991 units of ACMs, broken down as follow: (sic) 1st batch - 30 units 4th batch - 438 units 2nd batch - 288 units 5th batch - 438 units 3rd batch - 414 units 6th batch - 383 units "It should be noted that a total of 18 units have failed the test. Out of these 18 units, only one (1) unit has failed the retest. "Thank you and we hope you will find everything in order. "Very truly yours, "ROLANDO T. VILORIA, CESO III Executive Director cum Chairman, DOST-Technical Evaluation Committee" Even a cursory glance at the foregoing letter shows that it is completely bereft of anything that would remotely support Comelecs contention that the "software component of the automated election system x x x has been reprogrammed to comply with" RA 8436, and "has passed the MIRDC-DOST tests." There is no mention at all of any software reprogramming. If the MIRDC-DOST had indeed undertaken the supposed reprogramming and the process turned out to be successful, that agency would have proudly trumpeted its singular achievement. How Comelec came to believe that such reprogramming had been undertaken is unclear. In any event, the Commission is not forthright and candid with the factual details. If reprogramming has been done, who performed it and when? What exactly did the process involve? How can we be assured that it was properly performed? Since the facts attendant to the alleged reprogramming are still shrouded in mystery, the Court cannot give any weight to Comelecs bare allegations. The fact that a total of 1,973 of the machines has ultimately passed the MIRDC-DOST tests does not by itself serve as an endorsement of the soundness of the software program, much less as a proof that it has been reprogrammed. In the first place, nothing on record shows that the tests and re-tests conducted on the machines were intended to address the serious deficiencies noted earlier. As a matter of fact, the MIRDC-DOST letter does not even indicate what kinds of tests or re-tests were conducted, their exact nature and 53 scope, and the specific objectives thereof. The absence of relevant supporting documents, combined with the utter vagueness of the letter, certainly fails to inspire belief or to justify the expansive confidence displayed by Comelec. In any event, it goes without saying that remedial measures such as the alleged reprogramming cannot in any way mitigate the grave abuse of discretion already committed as early as April 15, 2003. Rationale of Public Bidding Negated by the Third Type of Software Respondent Comelec tries to assuage this Courts anxiety in these words: "The reprogrammed software that has already passed the requirements of Republic Act No. 8436 during the MIRDC-DOST testing and acceptance procedures will require further customization since the following additional elements, among other things, will have to be considered before the final software can be used on election day: 1. Final Certified List of Candidates x x x 2. Project of Precincts x x x 3. Official Ballot Design and Security Features x x x 4. Encryption, digital certificates and digital signatures x x x. The certified list of candidates for national elective positions will be finalized on or before 23 January 2004 while the final list of projects of precincts will be prepared also on the same date. Once all the above elements are incorporated in the software program, the Test Certification Group created by the Ad Hoc Technical Evaluation Committee will conduct meticulous testing of the final software before the same can be used on election day. In addition to the testing to be conducted by said Test Certification Group, the Comelec will conduct mock elections in selected areas nationwide not only for purposes of public information but also to further test the final election day program. Public respondent Comelec, therefore, requests that it be given up to 16 February 2004 to comply with this requirement." The foregoing passage shows the imprudent approach adopted by Comelec in the bidding and acquisition process. The Commission says that before the software can be utilized on election day, it will require "customization" through addition of data -- like the list of candidates, project of precincts, and so on. And inasmuch as such data will become available only in January 2004 anyway, there is therefore no perceived need on Comelecs part to rush the supplier into producing the final (or near-final) version of the software before that time. In any case, Comelec argues that the software needed for the electoral exercise can be continuously developed, tested, 230 Election Laws Election Process and/or Proceedings
adjusted and perfected, practically all the way up to election day, at the same time that the Commission is undertaking all the other distinct and diverse activities pertinent to the elections. Given such a frame of mind, it is no wonder that Comelec paid little attention to the counting and canvassing software during the entire bidding process, which took place in February-March 2003. Granted that the software was defective, could not detect and prevent the re-use of previously downloaded data or produce the audit trail -- aside from its other shortcomings -- nevertheless, all those deficiencies could still be corrected down the road. At any rate, the software used for bidding purposes would not be the same one that will be used on election day, so why pay any attention to its defects? Or to the Comelecs own bidding rules for that matter? Clearly, such jumbled ratiocinations completely negate the rationale underlying the bidding process mandated by law. At the very outset, the Court has explained that Comelec flagrantly violated the public policy on public biddings (1) by allowing MPC/MPEI to participate in the bidding even though it was not qualified to do so; and (2) by eventually awarding the Contract to MPC/MPEI. Now, with the latest explanation given by Comelec, it is clear that the Commission further desecrated the law on public bidding by permitting the winning bidder to change and alter the subject of the Contract (the software), in effect allowing a substantive amendment without public bidding. This stance is contrary to settled jurisprudence requiring the strict application of pertinent rules, regulations and guidelines for public bidding for the purpose of placing each bidder, actual or potential, on the same footing. The essence of public bidding is, after all, an opportunity for fair competition, and a fair basis for the precise comparison of bids. In common parlance, public bidding aims to "level the playing field." That means each bidder must bid under the same conditions; and be subject to the same guidelines, requirements and limitations, so that the best offer or lowest bid may be determined, all other things being equal. Thus, it is contrary to the very concept of public bidding to permit a variance between the conditions under which bids are invited and those under which proposals are submitted and approved; or, as in this case, the conditions under which the bid is won and those under which the awarded Contract will be complied with. The substantive amendment of the contract bidded out, without any public bidding -- after the bidding process had been concluded -- is violative of the public policy on public biddings, as well as the spirit and intent of RA 8436. The whole point in going through the public bidding exercise was completely lost. The very rationale of public bidding was totally subverted by the Commission. From another perspective, the Comelec approach also fails to make sense. Granted that, before election day, the software would still have to be customized to each precinct, municipality, city, district, and so on, there still was nothing at all to prevent Comelec from requiring prospective suppliers/bidders to produce, at the very start of the bidding process, the "next-to-final" versions of the software (the best software the suppliers had) -- pre-tested and ready to be customized to the final list of candidates and project of precincts, among others, and ready to be deployed thereafter. The satisfaction of such requirement would probably have provided far better bases for evaluation and selection, as between suppliers, than the so-called demo software.Respondents contend that the bidding suppliers counting machines were previously used in at least one political exercise with no less than 20 million voters. If so, it stands to reason that the software used in that past electoral exercise would probably still be available and, in all likelihood, could have been adopted for use in this instance. Paying for machines and software of that category (already tried and proven in actual elections and ready to be adopted for use) would definitely make more sense than paying the same hundreds of millions of pesos for demo software and empty promises of usable programs in the future. But there is still another gut-level reason why the approach taken by Comelec is reprehensible. It rides on the perilous assumption that nothing would go wrong; and that, come election day, the Commission and the supplier would have developed, adjusted and "reprogrammed" the software to the point where the automated system could function as envisioned. But what if such optimistic projection does not materialize? What if, despite all their herculean efforts, the software now being hurriedly developed and tested for the 54 automated system performs dismally and inaccurately or, worse, is hacked and/or manipulated? What then will we do with all the machines and defective software already paid for in the amount of P849 million of our tax money? Even more important, what will happen to our country in case of failure of the automation? The Court cannot grant the plea of Comelec that it be given until February 16, 2004 to be able to submit a "certification relative to the additional elements of the software that will be customized," because for us to do so would unnecessarily delay the resolution of this case and would just give the poll body an unwarranted excuse to postpone the 2004 elections. On the other hand, because such certification will not cure the gravely abusive actions complained of by petitioners, it will be utterly useless. Is this Court being overly pessimistic and perhaps even engaging in speculation? Hardly. Rather, the Court holds that Comelec should not have gambled on the unrealistic optimism that the suppliers software development efforts would turn out well. The Commission should have adopted a much more prudent and judicious approach to ensure the delivery of tried and tested software, and readied alternative courses of action in case of failure. Considering that the nations future is at stake here, it should have done no less. Epilogue
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Once again, the Court finds itself at the crossroads of our nations history. At stake in this controversy is not just the business of a computer supplier, or a questionable proclamation by Comelec of one or more public officials. Neither is it about whether this country should switch from the manual to the automated system of counting and canvassing votes. At its core is the ability and capacity of the Commission on Elections to perform properly, legally and prudently its legal mandate to implement the transition from manual to automated elections. Unfortunately, Comelec has failed to measure up to this historic task. As stated at the start of this Decision, Comelec has not merely gravely abused its discretion in awarding the Contract for the automation of the counting and canvassing of the ballots. It has also put at grave risk the holding of credible and peaceful elections by shoddily accepting electronic hardware and software that admittedly failed to pass legally mandated technical requirements. Inadequate as they are, the remedies it proffers post facto do not cure the grave abuse of discretion it already committed (1) on April 15, 2003, when it illegally made the award; and (2) "sometime" in May 2003 when it executed the Contract for the purchase of defective machines and non-existent software from a non-eligible bidder. For these reasons, the Court finds it totally unacceptable and unconscionable to place its imprimatur on this void and illegal transaction that seriously endangers the breakdown of our electoral system. For this Court to cop-out and to close its eyes to these illegal transactions, while convenient, would be to abandon its constitutional duty of safeguarding public interest. As a necessary consequence of such nullity and illegality, the purchase of the machines and all appurtenances thereto including the still-to-be-produced (or in Comelecs words, to be "reprogrammed") software, as well as all the payments made therefor, have no basis whatsoever in law. The public funds expended pursuant to the void Resolution and Contract must therefore be recovered from the payees and/or from the persons who made possible the illegal disbursements, without prejudice to possible criminal prosecutions against them. Furthermore, Comelec and its officials concerned must bear full responsibility for the failed bidding and award, and held accountable for the electoral mess wrought by their grave abuse of discretion in the performance of their functions. The State, of course, is not bound by the mistakes and illegalities of its agents and servants. True, our country needs to transcend our slow, manual and archaic electoral process. But before it can do so, it must first have a diligent and competent electoral agency that can properly and prudently implement a well-conceived automated election system. At bottom, before the country can hope to have a speedy and fraud-free automated election, it must first be able to procure the proper computerized hardware and software legally, based on a transparent and valid system of public bidding. As in any democratic system, the ultimate goal of automating elections must be achieved by a legal, valid and above-board process of acquiring the necessary tools and skills therefor. Though the Philippines needs an automated electoral process, it cannot accept just any system shoved into its bosom through improper and illegal methods. As the saying goes, the end never justifies the means. Penumbral contracting will not produce enlightened results. WHEREFORE, the Petition is GRANTED. The Court hereby declares NULL and VOID Comelec Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific Consortium (MPC). Also declared null and void is the subject Contract executed 55 between Comelec and Mega Pacific eSolutions (MPEI). Comelec is further ORDERED to refrain from implementing any other contract or agreement entered into with regard to this project. Let a copy of this Decision be furnished the Office of the Ombudsman which shall determine the criminal liability, if any, of the public officials (and conspiring private individuals, if any) involved in the subject Resolution and Contract. Let the Office of the Solicitor General also take measures to protect the government and vindicate public interest from the ill effects of the illegal disbursements of public funds made by reason of the void Resolution and Contract. SO ORDERED.
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H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A. PETERS, Petitioners, vs. COMMISSION ON ELECTIONS, Represented by HON. CHAIRMAN JOSE MELO, COMELEC SPECIAL BIDS and AWARDS COMMITTEE, represented by its CHAIRMAN HON. FERDINAND RAFANAN, DEPARTMENT OF BUDGET and MANAGEMENT, represented by HON. ROLANDO ANDAYA, TOTAL INFORMATION MANAGEMENT CORPORATION and SMARTMATIC INTERNATIONAL CORPORATION, Respondents. PETE QUIRINO-QUADRA, Petitioner-in-Intervention. SENATE OF THE PHILIPPINES, represented by its President, JUAN PONCE ENRILE, Movant-Intervenor. RESOLUTION VELASCO, JR., J.: By Decision dated September 10, 2009, the Court denied the petition of H. Harry L. Roque, Jr., et al. for certiorari, prohibition, and mandamus to nullify the contract-award of the 2010 Election Automation Project to the joint venture of Total Information Management Corporation (TIM) and Smartmatic International Corporation (Smartmatic). The Court also denied the petition-in-intervention of Pete Q. Quadra, praying that the respondents be directed to implement the minimum requirements provided under pars. (f) and (g), Section 6 of Republic Act No. (RA) 8436, or the Election Modernization Act, as amended by RA 9369. Petitioners Roque, et al. are again before the Court on a motion for reconsideration, as supplemented, praying, as they did earlier, that the contract award be declared null and void on the stated ground that it was made in violation of the Constitution, statutes, and 1 jurisprudence. Intervening petitioner also interposed a similar motion, but only to pray that the Board of Election Inspectors be ordered to manually count the ballots after the printing and electronic transmission of the election returns. To both motions, private respondents TIM and Smartmatic, on the one hand, and public respondents Commission on Elections (Comelec), et al., on the other, have interposed their separate comments and/or oppositions. As may be recalled, the underlying petition for certiorari, etc. on its face assailed the award by Comelec of the poll automation project to the TIM-Smartmatic joint venture, the challenge basically predicated on the non-compliance of the contract award with the pilot-testing requirements of RA 9369 and the minimum system capabilities of the chosen automated election system (AES), referring to the Precinct Count Optical Scan (PCOS) system. The non-submission of documents to show the existence and scope of a valid joint venture agreement between TIM and Smartmatic was also raised as a nullifying ground, albeit later abandoned or at least not earnestly pursued. The Court, in its September 10, 2009 Decision, dismissed the petition and the petition-in-intervention on the following main grounds: (1) RA 8436, as amended, does not require that the AES procured or, to be used for the 2010 nationwide fully automated elections must, as a condition sine qua non, have been pilot-tested in the 2007 Philippine election, it being sufficient that the capability of the chosen AES has been demonstrated in an electoral exercise in a foreign jurisdiction; (2) Comelec has adopted a rigid technical evaluation mechanism to ensure compliance of the PCOS with the minimum capabilities standards prescribed by RA 8436, as amended, and its determination in this regard must be respected absent grave abuse of discretion; (3) Comelec retains under the automation arrangement its supervision, oversight, and control mandate to ensure a free, orderly, and honest electoral exercise; it did not, by entering into the assailed automation project contract, abdicate its duty to enforce and administer all laws relative to the conduct of elections and decide, at the first instance, all questions affecting elections; and (4) in accordance with contract documents, continuity and back-up plans are in place to be activated in case the PCOS machines falter during the actual election exercise. Petitioners Roque, et al., as movants herein, seek a reconsideration of the September 10, 2009 Decision on the following issues or grounds: 1. The Comelecs public pronouncements show that there is a "high probability" that there will be failure of automated elections; 2. Comelec abdicated its constitutional functions in favor of Smartmatic; 233 Election Laws Election Process and/or Proceedings
3. There is no legal framework to guide the Comelec in appreciating automated ballots in case the PCOS machines fail; 4. Respondents cannot comply with the requirements of RA 8436 for a source code review; 5. Certifications submitted by private respondents as to the successful use of the machines in elections abroad do not fulfill the requirement of Sec. 12 of RA 8436; 6. Private respondents will not be able to provide telecommunications facilities that will assure 100% communications coverage at all times during the conduct of the 2010 elections; and 7. Subcontracting the manufacture of PCOS machines to Quisdi violates the Comelecs bidding rules. Both public and private respondents, upon the other hand, insist that petitioners motion for reconsideration should be held devoid of merit, because the motion, for the most part, either advances issues or theories not raised in the petition for certiorari, prohibition, and mandamus, and argues along speculative and conjectural lines. Upon taking a second hard look into the issues in the case at bar and the arguments earnestly pressed in the instant motions, the Court cannot grant the desired reconsideration. Petitioners threshold argument delves on possibilities, on matters that may or may not occur. The conjectural and speculative nature of the first issue raised is reflected in the very manner of its formulation and by statements, such as "the public pronouncements of public 2 3 respondent COMELEC x x x clearly show that there is a high probability that there will be automated failure of elections"; "there is a 4 high probability that the use of PCOS machines in the May 2010 elections will result in failure of elections"; "the unaddressed logistical nightmaresand the lack of contingency plans that should have been crafted as a result of a pilot testmake an automated failure of 5 elections very probable"; and "COMELEC committed grave abuse of discretion when it signed x x x the contract for full automation x x 6 x despite the likelihood of a failure of elections." Speculations and conjectures are not equivalent to proof; they have little, if any, probative value and, surely, cannot be the basis of a sound judgment. Petitioners, to support their speculative venture vis--vis the possibility of Comelec going manual, have attributed certain statements to 7 respondent Comelec Chairman Melo, citing for the purpose a news item on Inquirer.net, posted September 16, 2009. Reacting to the attribution, however, respondents TIM and Smartmatic, in their comment, described the Melo pronouncements as made in the context of Comelecs contingency plan. Petitioners, however, the same respondents added, put a misleading spin to the Melo pronouncements by reproducing part of the news item, but omitting to make reference to his succeeding statements to arrive at a clearer and true picture. Private respondents observation is well-taken. Indeed, it is easy to selectively cite portions of what has been said, sometimes out of their proper context, in order to assert a misleading conclusion. The effect can be dangerous. Improper meaning may be deliberately attached to innocent views or even occasional crude comments by the simple expediency of lifting them out of context from any publication. At any event, the Court took it upon itself to visit the website, whence petitioners deduced their position on the possible failure of automated elections in problem areas and found the following items: Allaying fears of failure of elections in 2010, the x x x [Comelec] said it will prepare for manual balloting, especially for areas with problems in electricity and telecommunications network coverage. x x x "Aside from preparations for poll automation, Comelec is also preparing for manual elections sa mga liblib na lugar [in remote places] x x x, provinces with no electricity and would have issues in electronic transmission. We are ready for manual polls in at least 30 percent or 50 percent of the country as a last contingency measure in case the contingency plans for automation are difficult to implement," said Melo. The poll chief was reacting to statements expressing the possibility of failure of elections due to the novelty of poll automation. "The occurrence of nationwide failure of elections as alleged by doomsayers is impossible. Under the laws of probability, all 80,000 PCOS machines nationwide cannot breakdown. Maybe several would but we have standby units for this and we also have preparations 8 for manual elections," he said. (Emphasis added.) Petitioners next maintain that the Comelec abdicated its constitutional mandate to decide all questions affecting elections when, under 10 Article 3.3 of the poll automation contract, it surrendered control of the system and technical aspects of the 2010 automated elections 234 Election Laws Election Process and/or Proceedings
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to Smartmatic in violation of Sec. 26 of RA 8436. Comelec, so petitioners suggest, should have stipulated that its Information Technology (IT) Department shall have charge of the technical aspects of the elections. Petitioners above contention, as well as the arguments, citations, and premises holding it together, is a rehash of their previous 12 position articulated in their memorandum in support of their petition. They have been considered, squarely addressed, and found to be without merit in the Decision subject hereof. The Court is not inclined to embark on another extended discussion of the same issue again. Suffice it to state that, under the automation contract, Smartmatic is given a specific and limited technical task to assist the Comelec in implementing the AES. But at the end of the day, the Smarmatic-TIM joint venture is merely a service provider and lessor of goods and services to the Comelec, which shall have exclusive supervision and control of the electoral process. Art. 6.7 of the automation contract could not have been more clear: 6.7 Subject to the provisions of the General Instructions to be issued by the Commission En Banc, the entire process of voting, counting, transmission, consolidation and canvassing of votes shall [still] be conducted by COMELECs personnel and officials and their performance, completion and final results according to specifications and within specified periods shall be the shared responsibility of COMELEC and the PROVIDER. (Emphasis added.) The aforequoted provision doubtless preserves Comelecs constitutional and statutory responsibilities. But at the same time, it realistically recognizes the complexity and the highly technical nature of the automation project and addresses the contingencies that the novelty of election automation brings. Petitioners posture anent the third issue, i.e, there no is legal framework to guide Comelec in the appreciation of automated ballots or to govern manual count should PCOS machines fail, cannot be accorded cogency. First, it glosses over the continuity and back-up 13 plans that would be implemented in case the PCOS machines falter during the 2010 elections. The overall fallback strategy and options to address even the worst-case scenariothe wholesale breakdown of the 80,000 needed machines nationwide and of the 2,000 reserved unitshave been discussed in some detail in the Decision subject of this recourse. The Court need not belabor them again. While a motion for reconsideration may tend to dwell on issues already resolved in the decision sought to be reconsideredand this should not be an obstacle for a reconsiderationthe hard reality is that petitioners have failed to raise matters substantially plausible or compellingly persuasive to warrant the desired course of action. Second, petitioners position presupposes that the Comelec is, in the meanwhile, standing idly by, totally unconcerned with that grim eventuality and the scenarios petitioners envision and depict. Comelec, to reiterate, is the constitutional body tasked to enforce and administer all laws and regulations relative to the conduct of an election. In the discharge of this responsibility, Comelec has been afforded enough latitude in devising means and methods that would enable it to accomplish the great objective for which it was created. In the matter of the administration of laws relative to the conduct of elections, the Courtor petitioners for that mattermust not, by any 14 preemptive move or any excessive zeal, take away from Comelec the initiative that by law pertains to it. It should not be stymied with 15 restrictions that would perhaps be justified in the case of an organization of lesser responsibility. Significantly, petitioners, in support of their position on the lack-of-legal-framework issue, invoke the opinion of Associate, later Chief, 16 Justice Artemio Panganiban in Loong v. Comelec, where he made the following observations: "Resort to manual appreciation of the 17 ballots is precluded by the basic features of the automated election system," and "the rules laid down in the Omnibus Election Code (OEC) for the appreciation and counting of ballots cast in a manual election x x x are inappropriate, if not downright useless, to the 18 proper appreciation and reading of the ballots used in the automated system." Without delving on its wisdom and validity, the view of Justice Panganiban thus cited came by way of a dissenting opinion. As such, it is without binding effect, a dissenting opinion being a mere expression of the individual view of a member of the Court or other collegial adjudicating body, while disagreeing with the 19 conclusion held by the majority. Petitioners insist next that public respondents cannot comply with the requirement of a source code RA 8436, as amended, which provides:
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review as mandated by Sec. 14 of
SEC. 14. Examination and Testing of Equipment or Device of the AES and Opening of the Source Code of Review.Once an AES Technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof. Pursuing the point, after citing a commentary of an IT expert on the importance of a source code review, petitioners state the observation that "there are strong indications of [the inability] to comply x x x since the source code, which runs the PCOS machines, 21 will effectively be kept secret from the people." Again, petitioners engage in an entirely speculative exercise, second- guessing what the Comelec can and will probably do, or what it cannot and probably will not do, with respect to the implementation of a statutory provision. The fact that a source code review is not expressly included in the Comelec schedule of activities is not an indication, as petitioners suggest, that Comelec will not implement such review. Comelec, in its Comment on the Motion for Reconsideration, manifests its intention to make available and open the source 235 Election Laws Election Process and/or Proceedings
code to all political and interested parties, but under a controlled environment to obviate replication and tampering of the source code, thus protecting, in the process, the intellectual proprietary right of Smartmatic to the source code. Absent compelling proof to the contrary, the Court accords the Comelec, which enjoys the presumption of good faith in the performance of its duties in the first place, the benefit of the doubt. And going to another but recycled issue, petitioners would have the Court invalidate the automation contract on the ground that the certifications submitted by Smartmatic during the bidding, showing that the PCOS technology has been used in elections abroad, do not 22 comply with Sec. 12 of RA 8436. We are not convinced. As stressed in our September 10, 2009 Decision, the AES chosen by Comelec for the 2010 elections has been successfully deployed 23 in previous electoral exercises in foreign countries, such as Ontario, Canada and New York, USA, albeit Smartmatic was not necessarily the system provider. Roque, et al., in their petition, had questioned the certifications to this effect, arguing that these certifications were not issued to respondent TIM-Smartmatic, but to a third party, Dominion Voting Systems. Resolving the challenge, the Court, in effect, said that the system subject of the certifications was the same one procured by Comelec for the 2010 elections. And besides, the Licensing Agreement between Smartmatic and the Dominion Voting Systems indicates that the former is the entity licensed by the latter to use the system in the Philippines. Presently, petitioners assert that the system certified as having been used in New York was the Dominion Image Cast, a ballot marking device. Petitioners have obviously inserted, at this stage of the case, an entirely new factual dimension to their cause. This we cannot allow for compelling reasons. For starters, the Court cannot plausibly validate this factual assertion of petitioners. As it is, private respondents 24 have even questioned the reliability of the website whence petitioners base their assertion, albeit the former, citing the same website, state that the Image Cast Precinct tabulation device refers to the Dominions PCOS machines. Moreover, as a matter of sound established practice, points of law, theories, issues, and arguments not raised in the original proceedings cannot be brought out on review. Basic considerations of fair play impel this rule. The imperatives of orderly, if not speedy, 25 26 justice frown on a piecemeal presentation of evidence and on the practice of parties of going to trial haphazardly. Moving still to another issue, petitioners claim that "there are very strong indications that Private Respondents will not be able to provide 27 for telecommunication facilities for areas without these facilities." This argument, being again highly speculative, is without evidentiary value and hardly provides a ground for the Court to nullify the automation contract. Surely, a possible breach of a contractual stipulation is not a legal reason to prematurely rescind, much less annul, the contract.1avvphi1 Finally, petitioners argue that, based on news reports, the TIM-Smartmatic joint venture has entered into a new contract with Quisdi, a 29 Shanghai-based company, to manufacture on its behalf the needed PCOS machines to fully automate the 2010 elections. This arrangement, petitioners aver, violates the bid rules proscribing sub-contracting of significant components of the automation project. The argument is untenable, based as it is again on news reports. Surely, petitioners cannot expect the Court to act on unverified reports foisted on it. And, of course, the Court is at a loss to understand how the sub-contract would, in the scheme of things, constitute grave abuse of discretion on the part of Comelec so as to nullify the contract award of the automation project. As petitioners themselves 30 acknowledge, again citing news reports, "Smartmatic has unilaterally made the new subcontract to the Chinese company." Petitioners 31 admit too, albeit with qualification, that RA 9184 allows subcontracting of a portion of the automation project. The motion of intervenor Quadra deals with the auditability of the results of the automated elections. His concern has already been addressed by the Court in its Decision. As we have said, the AES procured by the Comelec is a paper-based system, which has a provision for system auditability, since the voter would be able, if needed, to verify if the PCOS machine has scanned, recorded, and counted his vote properly. All actions done on the machine can be printed out by the Board of Election Inspectors Chairperson as an 32 audit log. On the basis of the arguments, past and present, presented by the petitioners and intervenor, the Court does not find any grave abuse of discretion on the part of the Comelec in awarding the automation contract to the joint venture of private respondents. In closing, the Court harks back to its parting message embodied in its September 10, 2009 Decision, but this time even more mindful of warnings and apprehensions of well-meaning sectors of society, including some members of the Court, about the possibility of failure of elections. The Court, to repeat, will not venture to say that nothing could go wrong in the conduct of the 2010 nationwide automated elections. Neither will it guarantee, as it is not even equipped with the necessary expertise to guarantee, the effectiveness of the voting machines and the integrity of the counting and consolidation software embedded in them. That difficult and complex undertaking 236 Election Laws Election Process and/or Proceedings
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belongs at the first instance to the Comelec as part of its mandate to insure orderly and peaceful elections. The Comelec, as it were, is laboring under a very tight timeline. It would accordingly need the help of all advocates of orderly and honest elections, al l men and women of goodwill, to assist Comelec personnel in addressing the fears expressed about the integrity of the system. After all, peaceful, fair, honest, and credible elections is everyones concern. WHEREFORE, the instant separate motions for reconsideration of the main and intervening petitioners are DENIED. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189546 September 21, 2010
CENTER FOR PEOPLE EMPOWERMENT IN GOVERNANCE, Petitioner, vs. COMMISSION ON ELECTIONS, Respondent. DECISION ABAD, J.: This case concerns the duty of the Commission on Elections (COMELEC) to disclose the source code for the Automated Election System (AES) technologies it used in the 2010 national and local elections. On May 26, 2009 petitioner Center for People Empowerment in Governance (CenPEG), a non-government organization, wrote respondent COMELEC, requesting a copy of the source code of the Precinct Count Optical Scan (PCOS) programs, the Board of Canvassers Consolidation/Canvassing System (BOC CCS) programs for the municipal, provincial, national, and congressional canvass, the COMELEC server programs, and the source code of the in-house COMELEC programs called the Data Capturing System (DCS) utilities. CenPEG invoked the following pertinent portion of Section 12 of Republic Act (R.A.) 9369, which provides: xxxx Once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof. Section 2(12) of R.A. 9369 describes the source code as the "human readable instructions that define what the computer equipment will do." This has been explained in an article: Source code is the human readable representation of the instructions that control the operation of a computer. Computers are composed of hardware (the physical devices themselves) and software (which controls the operation of the hardware). The software instructs the computer how to operate; without software, the computer is useless. Source code is the human readable form in which software is written by computer programmers. Source code is usually written in a programming language that is arcane and incomprehensible to non-specialists but, to a computer programmer, the source code is the master blueprint that reveals and determines how the machine will behave. Source code could be compared to a recipe: just as a cook follows the instructions in a recipe step-by-step, so a computer executes the sequence of instructions found in the software source code. This is a reasonable analogy, but it is also imperfect. While a good cook will use her discretion and common sense in following a recipe, a computer follows the instructions in the source code in a mechanical and unfailingly literal way; thus, while errors in a recipe might be noticed and corrected by the cook, errors in source code can be disastrous, because the code is executed by the computer exactly as written, whether that was what the programmer intended or not x x x. The source code in voting machines is in some ways analogous to the procedures provided to election workers. Procedures are instructions that are provided to people; for instance, the procedures provided to poll workers list a sequence of steps that poll workers should follow to open the polls on election morning. Source code contains instructions, not for people, but for the computers running the election; for instance, the source code for a voting machine determines the steps the machine will 2 take when the polls are opened on election morning. (Underscoring supplied) On June 24, 2009 the COMELEC granted the request for the source code of the PCOS and the CCS, but denied that for the DCS, since the DCS was a "system used in processing the Lists of Voters which is not part of the voting, counting and canvassing systems contemplated by R.A. 9369." According to COMELEC, if the source code for the DCS were to be divulged, unscrupulous individuals might change the program and pass off an illicit one that could benefit certain candidates or parties.
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Still, the COMELEC apparently did not release even the kinds of source code that it said it was approving for release. Consequently, on July 13, 2009, CenPEG once more asked COMELEC for the source code of the PCOS, together with other documents, programs, and diagrams related to the AES. CenPEG sent follow-up letters on July 17 and 20 and on August 24, 2009.1avvphi1 On August 26, 2009 COMELEC replied that the source code CenPEG wanted did not yet exist for the reasons: 1) that it had not yet received the baseline source code of the provider, Smartmatic, since payment to it had been withheld as a result of a pending suit; 2) its customization of the baseline source code was targeted for completion in November 2009 yet; 3) under Section 11 of R.A. 9369, the customized source code still had to be reviewed by "an established international certification entity," which review was expected to be completed by the end of February 2010; and 4) only then would the AES be made available for review under a controlled environment. Rejecting COMELECs excuse, on October 5, 2009 CenPEG filed the present petition for mandamus, seeking to compel COMELEC to immediately make its source codes available to CenPEG and other interested parties. COMELEC claimed in its comment that CenPEG did not have a clear, certain, and well-defined right that was enforceable by mandamus because COMELECs duty to make the source code available presupposed that it already had the same. COMELEC restated the explanation it gave in its August 26, 2009 letter to CenPEG. In its manifestation and omnibus motion, CenPEG did not believe that the source code was still unavailable considering that COMELEC had already awarded to an international certification entity the review of the same and that COMELEC had already been field testing its PCOS and CCS machines. On February 10, 2010 COMELEC filed a manifestation, stating that it had already deposited on February 9, 2010 the source code to be used in the May 10, 2010 elections with the Bangko Sentral ng Pilipinas. Required to comment on this, CenPEG said on February 22, 2010 that the manifestation did not constitute compliance with Section 12 of R.A. 9369 but only with Section 11 of R.A. 8436. In its earlier comment, COMELEC claimed, reiterating what it said in its August 26, 2009 letter to CenPEG, that it would make the source code available for review by the end of February 2010 "under a controlled environment." Apparently, this review had not taken place and was overtaken by the May 10, 2010 elections. On June 21, 2010 CenPEG filed a manifestation and omnibus motion, reiterating its prayer for the issuance of a writ of mandamus in this case notwithstanding the fact that the elections for which the subject source code was to be used had already been held. It claimed that the source code remained important and relevant "not only for compliance with the law, and the purpose thereof, but especially in the backdrop of numerous admissions of errors and claims of fraud." The Court finds the petition and this last manifestation meritorious. The pertinent portion of Section 12 of R.A. 9369 is clear in that "once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof." The COMELEC has offered no reason not to comply with this requirement of the law. Indeed, its only excuse for not disclosing the source code was that it was not yet available when CenPEG asked for it and, subsequently, that the review had to be done, apparently for security reason, "under a controlled environment." The elections had passed and that reason is already stale. WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the COMELEC to make the source codes for the AES technologies it selected for implementation pursuant to R.A. 9369 immediately available to CenPEG and all other interested political parties or groups for independent review. SO ORDERED.
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G.R. No. 120318 December 5, 1997 RICARDO "BOY" CANICOSA, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF CALAMBA, LAGUNA and SEVERINO LAJARA, respondents.
BELLOSILLO, J.: RICARDO "BOY" CANICOSA and SEVERINO LAJARA were candidates for mayor in Calamba, Laguna, during the 8 May 1995 1 elections. After obtaining a majority of some 24,000 votes Lajara was proclaimed winner by the Municipal Board of Canvassers. On 15 May 1995 Canicosa filed with the Commission on Elections (COMELEC) a Petition to Declare Failure of Election and to Declare Null and Void the Canvass and Proclamation because of alleged widespread frauds and anomalies in casting and counting of votes, preparation of election returns, violence, threats, intimidation, vote buying, unregistered voters voting, and delay in the delivery of election documents and paraphernalia from the precincts to the Office of the Municipal Treasurer. Canicosa particularly averred that: (a) the names of the registered voters did not appear in the list of voters in their precincts; (b) more than one-half of the legitimate registered voters were not able to vote with strangers voting in their stead; (c) he was credited with less votes than he actually received; (d) control data of the election returns was not filed up in some precincts; (e) ballot boxes brought to the Office of the Mu nicipal Treasurer were unsecured, i.e., without padlocks nor self-locking metal seals; and, (f) there was delay in the delivery of election returns. But the COMELEC en banc dismissed the petition on the ground that the allegations therein did not justify a declaration of failure of election. Indeed, the grounds cited by Canicosa do not warrant a declaration of failure of election. Section 6 of BP Blg. 881, otherwise known as the Omnibus Election Code, reads: Sec. 6. Failure of election If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. Clearly, there are only three (3) instances where a failure of election may be declared, namely: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure. violence, terrorism, fraud, or other analogous causes. None of the grounds invoked by Canicosa falls under any of those enumerated. Canicosa bewails that the names of the registered voters in the various precincts did not appear in their respective lists of voters. But this is not a ground to declare a failure of election. The filing of a petition for declaration of failure of election therefore is not the proper remedy. The day following the last day for registration of voters, the poll clerk delivers a certified list of voters to the election registrar, election supervisor and the COMELEC, copies of which are open to public inspection. On the same day, the poll clerk ports a copy of the list of registered voters in each polling place. Each member of the board of election inspectors retains a copy of the list which may 2 be inspected by the public in their residence or in their office during office hours. Fifteen (15) days before the regular elections on 8 May 1995 the final list of voters was posted in each precinct pursuant to Sec. 148 of R.A. No. 7166. Based on the lists thus posted Canicosa could have filed a petition for inclusion of registered voters with the regular 240 Election Laws Election Process and/or Proceedings
courts. The question of inclusion or exclusion from the list of voters involves the right to vote which is not within the power and authority of COMELEC to rule upon. The determination of whether one has the right to vote is a justiciable issue properly cognizable by our regular courts. Section 138, Art. XII, of the Omnibus Election Code states; Sec. 138. Jurisdiction in inclusion and exclusion cases. The municipal and metropolitan trial courts shall have original and exclusive jurisdiction over all matters of inclusion and exclusion of voters from the list in their respective municipalities or cities. Decisions of the municipal or metropolitan trial courts may be appealed directly by the aggrieved party to the proper regional trial court within five days from receipts of notice thereof, otherwise said decision of the municipal or metropolitan trial court shall decide the appeal within ten days from the time the appeal was received and its decision shall be immediately final and executory. No motion for reconsideration shall be entertained by the courts (Sec. 37, PD 1896, as amended). On the other hand, Canicosa could have also filed with the COMELEC a verified complaint seeking the annulment of the book of voters pursuant to Sec. 10, of R.A. No. 7166: Sec. 10. Annulment of the List of Voters. Any book of voters the preparation of which has been affected with fraud, bribery, forgery, impersonation, intimidation, force or any other similar irregularity or which is statistically improbable may be annulled after due notice and hearing by the Commission motu propio or after the filing of a verified complaint: Provided, that no order, ruling or decision annulling a book of voters shall be executed within sixty (60) days before an election. If indeed the situation herein described was common in almost all of the 557 precincts as alleged by Canicosa, then it was more expedient on his part to avail of the remedies provided by law in order to maintain the integrity of the election. Since Canicosa failed to resort to any of the above options, the permanent list of voters as finally corrected before the election remains conclusive on the 5 question as to who had the right to vote in that election, although not in subsequent elections. Canicosa also avers that more than one-half (1/2) of the legitimate registered voters were not able to vote, instead, strangers voted in their behalf. Again, this is not a ground which warrants a declaration of failure of election. Canicosa was allowed to appoint a watcher in every precinct. The watcher is empowered by law to challenge any illegal voter. Thus, Secs. 199 and 202, Art. XVII, of the Omnibus Election Code, provide: Sec. 199. Challenges of illegal voters. (a) Any voter, or watcher may challenge any person offering to vote for not being registered, for using the name of another or suffering from existing disqualification. In such case, the board of election inspectors shall satisfy itself as to whether or not the ground for the challenge is true by requiring proof of registration or identity of the voter . . . Sec. 202. Record of challenges and oaths. The poll clerk shall keep a prescribed record of challenges and oaths taken in connection therewith and the resolution of the board of election inspectors in each case and, upon the termination of the voting, shall certify that it contains all the challenges made . . . The claim of Canicosa that he was credited with less votes than he actually received and that the control date of the election returns was not filled up should have been raised in the first instance before the board of election inspectors or board of canvassers. Section 179, Art. XV, of the Omnibus Election Code clearly provides for the rights and duties of watchers Sec. 179. Rights and duties of watchers. . . . The watchers . . . shall have the right to witness and inform themselves of the proceedings of the board of election inspectors . . . to file a protest against any irregularity or violation of law which they believe may have been committed by the board of election inspectors or by any of its members or by any persons, to obtain from the board of election inspectors a certificates as to the filing of such protest and/or of the resolution thereon . . . and to be furnished with a certificate of the number of votes in words and figures cast for each candidate, duly signed and thumbmarked by the chairman and all the members of the board of election inspectors . . . To safeguard and maintain the sanctity of election returns, Sec. 212, Art. XVIII, of the Omnibus Election Code states Sec. 212. Election returns. . . . Immediately upon the accomplishment of the election returns, each copy thereof shall be sealed in the presence of the watchers and the public, and placed in the proper envelope, which shall likewise be sealed and distributed as herein provided. Furthermore, that it is provided in Sec. 215 of the Omnibus Election Code
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Sec. 215. Board of election inspectors to issue a certificate of the number of votes polled by the candidates for an office to the watchers. After the announcement of the results of the election and before leaving the polling place, it shall be the duty of 241 Election Laws Election Process and/or Proceedings
the board of election inspectors to issue a certificate of the number of votes received by a candidate upon request of the watchers. All members of the board of election inspectors shall sign the certificate. Supplementing the preceding provisions, Secs. 16 and 17 of RA No. 6646 also require Sec. 16. Certificate of votes. After the counting of the votes cast in the precinct and announcement of the results of the election, and before leaving the polling place, the board of election inspectors shall issue a certificate of votes upon request of the duly accredited watchers . . . Sec. 17. Certificate of Votes as Evidence. The provisions of Secs. 235 and 236 of Batas Pambansa Blg. 881 notwithstanding, the certificate of votes shall be admissible in evidence to prove tampering, alteration, falsification or anomaly committed in the election returns concerned . . . From the foregoing provisions, it is clear that in case of inconsistency as to the number of votes written in the election returns and the certificate of votes, a petition for correction of election returns must immediately be filed with COMELEC by all or a majority of the members of the board of election inspectors or any candidate affected by the error or mistake. In order to make out a case for correction of election returns, there must be an error and at least a majority of the members of the board of election inspectors agrees that such error existed. Canicosa never mentioned that he petitioned for the correction of the election returns before the COMELEC. Canicosa complains that the election returns were delivered late and the ballot boxes brought to the Office of the Municipal Treasurer unsecured, i.e., without padlocks nor self-locking metal seals. These bare allegations cannot impel us to declare failure of election. Assuming that the election returns were delivered late, we still cannot see why we should declare a failure to elect. The late deliveries did not convert the election held in Calamba into a mockery or farce to make us conclude that there was indeed a failure of election. In fine, the grounds cited by Canicosa in his petition do not fall under any of the instances enumerated in Sec. 6 of the Omnibus 6 Election Code. In Mitmug v. Commission on Elections we ruled that before COMELEC can act on a verified petition seeking to declare a failure of election, at least two (2) conditions must concur: (a) no voting has taken place in the precincts on the date fixed by law, or even if there was voting, the election nevertheless resulted in failure to elect; and, (b) the votes that were not cast would affect the result of the election. From the face of the instant petition, it is readily apparent than an election took place and that it did not result in a 7 failure to elect. Canicosa finally insists that it was error on the part of COMELEC sitting en banc to rule on his petition. He maintains that his petition should have first been heard by a division of COMELEC and later by the COMELEC en banc upon motion for reconsideration, pursuant 8 to Sec. 3, Art. IX-C, of the Constitution. But this provision applies only when the COMELEC acts in the exercise of its adjudicatory or quasi-judicial functions and not when it merely exercises purely administrative functions. To reiterate, the grounds cited by Canicosa in his petition are that: (a) the names of the registered voters did not appear in the list of voters in their respective precincts; (b) more than one-half of the legitimate registered voters were not able to vote with strangers voting in their stead; (c) he was credited with less votes than he actually received; (d) the control data of the election returns was not filled up in some precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were unsecured, i.e., without padlocks nor self-locking metal seals; and, (f) there was delay in the delivery of election returns. Clearly, all these matters require the exercise by the COMELEC of its administrative functions. Section 2, Art. IX-C, of the 1987 Constitution grants extensive administrative powers to the COMELEC with regard to the enforcement and administration of all laws and regulations relative to the conduct of elections. Likewise, Sec. 52 of BP Blg. 881, otherwise known as the Omnibus Election Code, states: Sec. 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administrative of all laws relative to the conduct of elections of the purposes of ensuring free, orderly and honest elections . . . Quite obviously, it is only in the exercise of its adjudicatory or quasi-judicial powers that the COMELEC is mandated to hear and decide cases first by Division and then, upon motion for reconsideration, by the COMELEC en banc. This is when it is jurisdictional. In the instant case, as aforestated, the issues presented demand only the exercise by the COMELEC of its administrative functions. The COMELEC exercises direct and immediate supervision and control over national and local officials or employees, including members of any national or local law enforcement agency and instrumentality of the government required by law to perform duties relative to the conduct of elections. Its power of direct supervision and control includes the power to review, modify or set aside any act 9 of such national and local officials. It exercises immediate supervision and control over the members of the boards of election inspectors and canvassers. Its statutory power of supervision and control includes the power to revise, reverse or set aside the action of the boards, as well as to do what the boards should have done, even if questions relative thereto have not been elevated to it by an Election Laws Election Process and/or Proceedings
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aggrieved party, for such power includes the authority to initiate motu proprio or by itself such steps or actions as may be required 10 pursuant to law. Specifically, Canicosa alleged that he was credited with less votes than the actually received. But he did not raise any objection before the Municipal Board of Canvassers; instead, he went directly to the COMELEC. He now claims, after the COMELEC en banc dismissed his petition, that it was error on the part of COMELEC to rule on his petition while sitting en banc. We have already disposed of this issue in Castromayor v. Commission on Elections
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thus
It should be pinpointed out, in this connection, that what is involved here is a simple problem of arithmetic. The Statement of Votes is merely a tabulation per precinct of the votes obtained by the candidates as reflected in the election returns. In making the correction in computation, the MBC will be acting in an administrative capacity, under the control and supervision of the COMELEC. Hence, any question pertaining to the proceedings of the MBC may be raised directly to the COMELEC en banc in the exercise of its constitutional function to decide questions affecting elections. Moreover, it is expressly provided in Rule 27, Sec. 7, of the Comelec Rules of Procedure that any party dissatisfied with the ruling of the board of canvassers shall have a right to appeal to the COMELEC en banc: Sec. 7. Correction of Errors in Tabulation or Tallying of Results by the Board of Canvassers. (a) Where it is clearly shown before proclamation that manifest errors were committed in the tabulation or tallying or election returns, or certificates of canvass, during the canvassing as where (1) a copy of the election returns of one precinct or two or more copies of a certificate of canvass were tabulated more than once, (2) two copies of the election returns or certificate of canvass were tabulated separately, (3) there was a mistake in the adding or copying of the figures into the certificate of canvass or into the statement of votes by precinct, or (4) so-called election returns from non-existent precincts were included in the canvass, the board may motu proprio, or upon verified petition by any candidate, political party, organization or coalition of political parties, after due notice and hearing, correct the errors committed . . . (h) The appeal shall be heard and decided by the Commission en banc. The Tatlonghari v. Commission on Elections it was made to appear in the Certificate of Canvass of Votes and Proclamation of the Winning Candidates that respondent therein received 4,951 votes or more than what he actually obtained. In resolving the case we ruled that the correction of the manifest mistake in mathematical addition calls for a mere clerical task of the board of canvassers. The 13 remedy invoked was purely administrative. In Feliciano vs. Lugay we categorized the issue concerning registration of voters, which Canicosa cited as a ground in his petition for declaration of failure of election, as an administrative question. Likewise, questions as to whether elections have been held or whether certain returns were falsified or manufactured and therefore should be excluded from the 14 canvass do not involve the right to vote. Such questions are properly within the administrative jurisdiction of COMELEC, hence, may be acted upon directly by the COMELEC en banc without having to pass through any of its divisions. WHEREFORE, finding no grave abuse of discretion committed by public respondent Commission on Elections, the petition is DISMISSED and its Resolution en banc of 23 May 1995 dismissing the petition before it on the ground that the allegations therein did not justify a declaration of failure of election is AFFIRMED. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 160428 July 21, 2004
HADJI RASUL BATABOR, petitioner, vs. COMISSION ON ELECTIONS, BARANGAY BOARD OF CANVASSERS, BOARD OF ELECTION INSPECTORS OF PRECINCTS NOS. 3A, 4A and 5A, BARANGAY MAIDAN, TUGAYA, LANAO DEL SUR, and MOCASIM ABANGON BATONDIANG, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.: The power to declare a failure of elections should be exercised with utmost care and only under circumstances which demonstrate beyond doubt that the disregard of the law has been so fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatsoever; or that the great body of voters have been prevented by violence, intimidation and threats from exercising their franchise. There is failure of elections only when the will of the electorate has been muted and cannot be ascertained. If the will of the people is determinable, the same must as far as possible be 1 respected. Before us is a petition for certiorari with application for a temporary restraining order and writ of preliminary injunction, assailing the Commission on Elections (COMELEC) En Bancs Resolution dated October 9, 2003 in SPA No. 02-295 (Brgy.). In this Resolution, the COMELEC denied Hadji Rasul Batabors petition seeking: (a) the declaration of failure of election in Precincts 3A, 4A and 5A of Barangay Maidan, Tugaya, Lanao del Sur; (b) the annulment of the proclamation that Mocasin Abangon Batondiang is the duly elected Punong Barangay of Barangay Maidan; and (c) the holding of a special election in the questioned precincts. In the synchronized July 15, 2002 Barangay and Sangguniang Kabataan Elections, Hadji Rasul Batabor, petitioner, and Mocasim Abangon Batondiang, private respondent, ran as opposing candidates for the position of Punong Barangay in Barangay Maidan, Tugaya, Lanao del Sur. It was petitioners re-election bid being then the incumbent Punong Barangay. The result of the election shows that private respondent won as Punong Barangay, garnering 123 votes, as against petitioners 94 votes, or a difference of 29 votes. In due time, private respondent was proclaimed the duly elected Punong Barangay of Barangay Maidan. Bewailing the outcome of the election, petitioner filed with the COMELEC a petition to declare a failure of election in Precincts 3A, 4A and 5A of Barangay Maidan, docketed as SPA No. 02-295 (Brgy.). The petition alleges that during the election, the voting started at around 8:30 oclock in the morning. It was temporarily suspended during the lunch break and was to resume at 1:00 oclock in the afternoon of that day. But after lunch, the Chairwoman of the Board of Election Inspectors (BEI) of Precincts 3A, 4A and 5A suddenly tore all the unused official ballots. Thus, the voting was not continued. The BEI then padlocked the ballot boxes. At that time, petitioner was not present. Despite the note of Election Officer Taha Casidar directing the BEI to resume the voting, the latter did not allow the remaining voters to vote. Thus, petitioners relatives and followers, numbering more than 100, were not able to cast their votes. In his comment, private respondent averred that petitioners allegations are not supported by substantial evidence. It was petitioner who padlocked the ballot boxes as shown by the affidavit of Comini Manalastas. During the counting of votes, petitioners wife, daughter and son actually witnessed the same. Besides, petitioners allegations can be properly ventilated in an election protest because the issues raised are not grounds for declaration of a failure of election. On October 9, 2003, the COMELEC En Banc issued the assailed Resolution denying the petition. Petitioner now contends in his petition for certiorari before us that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in denying his petition in SPA No. 02-295 (BRGY.). He reiterates his allegations in his petition filed with the COMELEC showing there was failure of election. 244 Election Laws Election Process and/or Proceedings
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The Solicitor General, in his comment on the instant petition, vehemently disputes petitioners allegations and prays that the petition be dismissed for lack of merit. We dismiss the petition. The power to declare a failure of election is vested exclusively upon the COMELEC. Section 6 of the Omnibus Election Code provides:
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"Section 6. Failure of Election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes, the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect." Explaining the above provisions, we held in Benito vs. Commission on Elections that these two (2) conditions must exist before a failure of election may be declared: (1) no voting has been held in any precinct or precincts due to fraud, force majeure, violence or terrorism; and (2) the votes not cast therein are sufficient to affect the results of the election. The cause of such failure may arise before or after the casting of votes or on the day of the election. The familiar rule, as applied to this case, is that grave abuse of discretion exists when the questioned act of the COMELEC was exercised capriciously and whimsically as is equivalent to lack or in excess of jurisdiction. Such exercise of judgment must be done in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an 7 evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. It is not sufficient that 8 the COMELEC, in the exercise of its power, abused its discretion; such abuse must be grave. We find that the COMELEC did not commit any grave abuse of discretion in dismissing petitioners petition alleging a failure of election. While the alleged 100 votes of petitioners relatives and supporters, if cast during the election, are sufficient to affect its result, however, he failed to prove that the voting did not take place in precincts 3A, 4A and 5A. As found by the COMELEC, the Statement of Votes and the Certificate of Canvass of Votes show that out of the 316 registered voters in the questioned precincts, at least 220 actually voted. This simply shows that there was no failure of election in the subject precincts. Moreover, petitioners allegation that the voting was not resumed after lunch break, preventing 100 of his relatives and followers to vote, is better ventilated in an election contest. The COMELEC, in its assailed Resolution, held: "In the first place, the petitioner failed to show with certainty that the voting did not push through in the questioned precincts. In fact, the Statement of Votes by Precincts show that out of the three hundred sixteen (316) registered voters in the questioned precincts, two hundred twenty (220) or 69.62% of the registered voters actually voted. This high turnout in the number of registered voters who actually voted is clearly not an indication of a failure of elections. "We cannot also help but notice that the instant petition seeks to declare a failure of elections and to annul solely the proclamation of respondent Batondiang, the elected punong barangay. The prayer for annulment of proclamation does not extend to all the elected and proclaimed candidates in Barangay Maidan, Tugaya, Lanao del Sur. The Commission may not, on the ground of failure of elections, annul the proclamation of one candidate only, and thereafter call a special election therefor, because failure of elections necessarily affects all the elective positions in the place where there has been a failure of elections. To hold otherwise will be discriminatory and violative of the equal protection of the laws (See Loong vs. COMELEC, 305 SCRA 832 [1999]). "As pronounced by the Supreme Court in Mitmug vs. Commission on Elections (230 SCRA 54 [1994]), allegations of fraud and other election irregularities are better ventilated in an election contest: x x x, the question of whether there have been terrorism and other irregularities is better ventilated in an election contest. These irregularities may not as a rule be invoked to declare a failure of election and to disenfranchise the electorate through the misdeeds of a relative few. Otherwise, elections will never be carried out with the resultant disenfranchisement of innocent voters as losers will always cry fraud and terrorism. There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained. But, if it can be determined, it must be accorded respect. After all, there is no provision in our election laws which requires that a majority of registered voters must cast their votes. All the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast. Thus, even if less than 25% of the electorate in the 245 Election Laws Election Process and/or Proceedings
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questioned precincts cast their votes, the same must still be respected. There is prima facie showing that private respondent 9 was elected through a plurality of valid votes of a valid constituency." We reiterate our ruling in Benito vs. COMELEC that there is failure of elections only when the will of the electorate has been muted and cannot be ascertained. In the case at bar, this incident is not present. In sum, we find no reason to disturb the assailed Resolution of the COMELEC. WHEREFORE, the instant petition is DISMISSED for lack of merit. SO ORDERED.
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Republic of the Philippines SUPREME COURT EN BANC G.R. No. 142907 November 29, 2000
JOSE EMMANUEL L. CARLOS, petitioner, vs. HON. ADORACION G. ANGELES, IN HER CAPACITY AS THE ACTING PRESIDING JUDGE OF THE REGIONAL TRIAL COURT IN CALOOCAN CITY (BRANCH 125) and ANTONIO M. SERAPIO, respondents. PARDO, J.: The Case The case before the Court is an original special civil action for certiorari and prohibition with preliminary injunction or temporary restraining order seeking to annul the decision of the Regional Trial Court, Caloocan City, Branch 125, the dispositive portion of which reads as follows: "WHEREFORE, premises considered, the proclamation of the Protestee, Jose Emmanuel Carlos, by the Board of Canvassers is accordingly SET ASIDE. "The Court hereby FINDS the Protestant, ANTONIO SERAPIO, as the DULY ELECTED MAYOR OF VALENZUELA CITY. "SO ORDERED." The Facts Petitioner Jose Emmanuel L. Carlos and respondent Antonio M. Serapio were candidates for the position of mayor of the municipality of Valenzuela, Metro Manila (later converted into a City) during the May 11, 1998 elections. On May 21, 1998, the Municipal Board of Canvassers, Valenzuela, Metro Manila proclaimed petitioner as the duly elected mayor of Valenzuela having obtained 102,688 votes, the highest number of votes in the election returns. On June 1, 1998, respondent Antonio M. Serapio who obtained 77,270 votes, the second highest number of votes, filed with the Regional Trial Court, Valenzuela, Metro Manila, an election protest challenging the results. Due to the inhibition of all judges of the Regional Trial Court in Valenzuela, the case was ultimately assigned to the Regional Trial Court, Caloocan City, Branch 125, presided over by respondent Judge Adoracion G. Angeles. On June 26, 1998, petitioner filed with the trial court an answer with affirmative defenses and motion to dismiss. The court denied the motion to dismiss by order dated January 14, 1999. Petitioner elevated the order to the Commission on Elections (Comelec) on petition 2 for certiorari and prohibition, which, however, has remained unresolved up to this moment. In the course of the protest, the municipal treasurer of Valenzuela, who by law has custody of the ballot boxes, collected the ballot boxes and delivered them to the Regional Trial Court, Caloocan City. The trial court conducted a pre-trial conference of the parties but it did not produce a substantial result as the parties merely paid superficial service and only agreed on the following: 1. Both parties admit their capacity to sue and be sued; 2. Both parties admit that the protestant was a candidate during the May 11, 1998 election; 3. Both parties admit that the protestee has been proclaimed as the elected mayor of Valenzuela, Metro Manila, on May 21, 1998; 4. Both parties admit that the protestee allegedly obtained 102,688 votes while the protestant obtained 77,270 votes per canvass of election returns of the Board of Canvassers. The pre-trial was then concluded and the parties agreed to the creation of seven (7) revision committees consisting of a chairman designated by the court and two members representing the protestant and the protestee. 247 Election Laws Election Process and/or Proceedings
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Meantime, on May 12, 1999, petitioner filed a consolidated motion that included a prayer for authority to photocopy all the official copies 3 of the revision reports in the custody of the trial court. However, the trial court denied the issuance of such authorization. The court 4 likewise denied a motion for reconsideration of the denial. Then petitioner raised the denial to the COMELEC on petition for certiorari 5 and mandamus, which also remains unresolved until this date. The Revision Results The revision of the ballots showed the following results: (1) Per physical count of the ballots: (a) protestant Serapio - 76,246 votes. (b) protestee Carlos - 103,551 votes. (2) Per revision, the court invalidated 9,697 votes of the protestant but validated 53 stray votes in his favor. The court invalidated 19,975 votes of the protestee and validated 33 stray votes in his favor. The final tally showed: (a) protestant Serapio - 66,602 votes. (b) protestee Carlos - 83,609 votes, giving the latter a winning margin of 17,007 votes. The Trial Court's Ruling Nevertheless, in its decision, the trial court set aside the final tally of valid votes because of its finding of "significant badges of fraud," namely: 1. The keys turned over by the City Treasurer to the court did not fit into the padlocks of the ballot boxes that had to be forcibly opened; 2. Seven (7) ballot boxes did not contain any ballot and two (2) ballot boxes out of the seven (7) ballot boxes did not conta in any election returns; 3. Some schools where various precincts were located experienced brownouts during the counting of votes causing delay in the counting although there was no undue commotion or violence that occurred; 4. Some of the assigned watchers of protestant were not in their posts during the counting of votes. On the basis of the foregoing badges of fraud, the trial court declared that there was enough pattern of fraud in the conduct of the election for mayor in Valenzuela. The court held that the fraud was attributable to the protestee who had control over the election paraphernalia and the basic services in the community such as the supply of electricity. On April 24, 2000, the trial court rendered a judgment ruling that the perpetuation of fraud had undoubtedly suppressed the true will of the electorate of Valenzuela and substituted it with the will of the protestee. Notwithstanding the plurality of valid votes in favor of the protestee, the trial court set aside the proclamation of protestee Jose Emmanuel Carlos by the Municipal Board of Canvassers and 6 declared protestant Antonio M. Serapio as the duly elected mayor of Valenzuela City. Hearing news that the protestant had won the election protest, the protestee secured a copy of the decision from the trial court on May 4, 2000. On the other hand, notice of the decision was received by the protestant on May 03, 2000. On May 4, 2000, protestant filed with the trial court a motion for execution pending appeal. On May 4, 2000, the trial court gave 8 protestee five (5) days within which to submit his comment or opposition to the motion. Petitioner's Appeal to Comelec Meantime, on May 04, 2000, petitioner filed a notice of appeal from the decision of the trial court to the Commission on Elections. 248 Election Laws Election Process and/or Proceedings
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The Petition at bar On May 8, 2000, petitioner filed the present recourse. Petitioner raised the following legal basis: (1) The Supreme Court has original jurisdiction to entertain special civil actions of certiorari and prohibition; (2) There are important reasons and compelling circumstances which justify petitioner's direct recourse to the Supreme Court; (3) Respondent judge committed grave abuse of discretion when she declared respondent Serapio as the duly elected mayor of Valenzuela despite the fact that she found that petitioner obtained 17,007 valid votes higher than the valid votes of respondent Serapio; (4) The assailed decision is contrary to law, based on speculations and not supported by the evidence as shown in the 11 decision itself. The Issues The issues raised are the following: 1. Whether the Supreme Court has jurisdiction to review, by petition for certiorari as a special civil action, the decision of the regional trial court in an election protest case involving an elective municipal official considering that it has no appellate jurisdiction over such decision. 2. Whether the trial court acted without jurisdiction or with grave abuse of discretion when the court set aside the proclamation of petitioner and declared respondent Serapio as the duly elected mayor of Valenzuela City despite its finding that petitioner garnered 83,609 valid votes while respondent obtained 66,602 valid votes, or a winning margin of 17,007 votes. TRO Issued On May 8, 2000, we issued a temporary restraining order ordering respondent court to cease and desist from further taking cognizance of Election Protest No. 14-V-98 more specifically from taking cognizance of and acting on the Motion for Execution Pending Appeal filed 12 by respondent Serapio on May 4, 2000. Respondent's Position On May 15, 2000, respondent Serapio filed his comment with omnibus motion to lift the temporary restraining order and to declare 13 petitioner in contempt of court for violating the rule against forum shopping. He submitted that Comelec and not the Supreme Court has jurisdiction over the present petition for certiorari assailing the decision dated April 24, 2000 of the regional trial court. Assuming that this Court and Comelec have concurrent jurisdiction and applying the doctrine of primary jurisdiction, the Comelec has jurisdiction since petitioner has perfected his appeal therewith before the filing of the instant petition. Certiorari cannot be a substitute for an appeal; the present petition is violative of Revised Circular No. 28-91 on forum-shopping; issues raised are factual, not correctible by certiorari; and that the temporary restraining order should be lifted, the petition dismissed, and petitioner and counsel should be made to explain why they should not be punished for contempt of court. The Court's Ruling We find the petition impressed with merit.
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I. The Supreme Court is vested with original jurisdiction to issue writs of certiorari, prohibition and mandamus against the decision of the regional trial court in the election protest case before it, regardless of whether it has appellate jurisdiction over such decision. Article VIII, Section 5 (1) of the 1987 Constitution provides that: "Sec. 5. The Supreme Court shall have the following powers: "(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus." 249 Election Laws Election Process and/or Proceedings
xxx xxx xxx Rule 65, Section 1 of the 1997 Rules of Civil Procedure, as amended, provides that: "SECTION 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46." By Constitutional fiat, the Commission on Election (Comelec) has appellate jurisdiction over election protest cases involving elective municipal officials decided by courts of general jurisdiction, as provided for in Article IX (C), Section 2 of the 1987 Constitution: "Sec. 2. The Commission on Elections shall exercise the following powers and functions: "(1) x x x. "(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction." In like manner, the Comelec has original jurisdiction to issue writs of certiorari, prohibition and mandamus involving election cases in aid 15 16 of its appellate jurisdiction. This point has been settled in the case of Relampagos vs. Cumba, where we held: "In the face of the foregoing disquisitions, the court must, as it now does, abandon the ruling in the Garcia and Uy and Veloria cases. We now hold that the last paragraph of Section 50 of B. P. Blg. 697 providing as follows: The Commission is vested with exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases. remains in full force and effect but only in such cases where, under paragraph (2), Section 1, Article IX-C of the Constitution, it has exclusive appellate jurisdiction. Simply put, the COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition, and mandamus only in aid of its appellate jurisdiction." (Emphasis ours). Consequently, both the Supreme Court and Comelec have concurrent jurisdiction to issue writs of certiorari, prohibition, and mandamus over decisions of trial courts of general jurisdiction (regional trial courts) in election cases involving elective municipal officials. The 17 Court that takes jurisdiction first shall exercise exclusive jurisdiction over the case. Ergo, this Court has jurisdiction over the present petition of certiorari as a special civil action expressly conferred on it and provided for in the Constitution. Relative to the appeal that petitioner filed with the COMELEC, the same would not bar the present action as an exception to the rule 18 because under the circumstances, appeal would not be a speedy and adequate remedy in the ordinary course of law. The exception is sparingly allowed in situations where the abuse of discretion is not only grave and whimsical but also palpable and patent, and the invalidity of the assailed act is shown on its face. II. Certiorari lies. The trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction. Its decision is void. The next question that arises is whether certiorari lies because the trial court committed a grave abuse of discretion amounting to lack or excess of jurisdiction in deciding the way it did Election Protest Case No. 14-V-98, declaring respondent Serapio as the duly "elected" mayor of Valenzuela, Metro Manila. In this jurisdiction, an election means "the choice or selection of candidates to public office by popular vote" through the use of the 20 ballot, and the elected officials of which are determined through the will of the electorate. "An election is the embodiment of the 21 popular will, the expression of the sovereign power of the people." "Specifically, the term 'election', in the context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting 250 Election Laws Election Process and/or Proceedings
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of votes." The winner is the candidate who has obtained a majority or plurality of valid votes cast in the election. "Sound policy dictates that public elective offices are filled by those who receive the highest number of votes cast in the election for that office. For, in all republican forms of government the basic idea is that no one can be declared elected and no measure can be declared carried 24 unless he or it receives a majority or plurality of the legal votes cast in the election." In case of protest, a revision or recount of the ballots cast for the candidates decides the election protest case. The candidate receiving the highest number or plurality of votes shall be proclaimed the winner. Even if the candidate receiving the majority votes is ineligible or disqualified, the candidate receiving the next 25 highest number of votes or the second placer, can not be declared elected. "The wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration of election in favor of the person who has obtained a plurality of votes and does not entitle a candidate receiving the next highest number of votes to be declared 26 27 elected." In other words, "a defeated candidate cannot be deemed elected to the office." "Election contests involve public interest, and technicalities and procedural barriers should not be allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. In an election case, the court has an imperative duty to ascertain by all means within its command who is the real candidate elected by the electorate. The Supreme Court frowns upon any interpretation of the law or the rules that would hinder in any way not 28 only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results." In this case, based on the revision of ballots, the trial court found that: First, by canvass of the Municipal Board of Canvassers the results were: Carlos - 102,668 votes Serapio - 77,270 votes, or a winning margin of 25,418 votes Ramon Ignacio - 20 votes. and consequently, the Board of Canvassers proclaimed petitioner Carlos the duly elected mayor of Valenzuela, Metro Manila. Second, by physical count of the ballots, the results were: Carlos - 103,551 votes Serapio - 76,246 votes, or a winning margin of 27,305 votes. Third, by revision of the ballots, the trial court found in a final tally that the "valid" votes obtained by the candidates were as follows: Carlos - 83,609 votes Serapio - 66,602 votes, or a winning margin of 17,007 votes. Consequently, the final tally clearly showed petitioner Carlos as the overwhelming winner in the May 11, 1998 elections. However, the trial court set aside the final tally of votes because of what the trial court perceived to be "significant badges of fraud" 29 attributable to the protestee. These are: First: The failure of the keys turned over by the City Treasurer to the trial court to fit the padlocks on the ballot boxes that compelled the court to forcibly open the padlocks. The trial court concluded that the real keys were lost or the padlocks substituted pointing to possible tampering of the contents of the ballot boxes. Procedurally, the keys to the ballot boxes were turned over by the Board of Election Inspectors from the precinct level to the Municipal Board of Canvassers and finally to the municipal treasurer for safekeeping. The three-level turn-over of the keys will not prevent the possibility of these keys being mixed up. This is an ordinary occurrence during elections. The mere inability of the keys to fit into the padlocks attached to the ballot boxes does not affect the integrity of the ballots. At any rate, the trial court easily forced open the padlocks and found valid votes cast therein; Second: Seven (7) ballot boxes were found empty. Thus, the trial court concluded that there were "missing ballots" and "missing election returns." This is pure speculation without factual basis. "The sea of suspicion has no shore, and the court that embarks upon it 30 is without rudder or compass." On the other hand, the Summary of Votes as revised does not show any unaccounted precinct or 251 Election Laws Election Process and/or Proceedings
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whether there was any precinct without any ballot or election returns. It is a standard procedure of the Commission on Elections (Comelec) to provide extra empty ballot boxes for the use of the Board of Election Inspectors or the Board of Canvassers, in case of necessity. The empty ballot boxes found could be the empty reserve ballot boxes that were not used by the Board of Election Inspectors or the Board of Canvassers since there was neither proof nor even a claim of missing ballots or missing election returns. Third: Some schoolhouses experienced brownout during the counting of votes. There was nothing extraordinary that would invite serious doubts or suspicion that fraud was committed during the brownout that occurred. Indeed, one witness stated that it was the first time that he observed brownout in Dalandanan Elementary School and another stated that the brownout was localized in Coloong Elementary School. Since counting of votes lasted until midnight, the brownouts had caused only slight delay in the canvassing of votes because the election officials availed themselves of candles, flashlights and emergency lights. There were no reports of cheating or tampering of the election returns. In fact, witnesses testified that the counting of votes proceeded smoothly and no commotion or violence occurred. So, the brownouts had no effect on the integrity of the canvass. Fourth: The absence of watchers for candidate Serapio from their posts during the counting of votes. This cannot be taken against candidate Carlos since it is the candidate's own look-out to protect his interest during the counting of votes and canvassing of election returns. As long as notices were duly served to the parties, the counting and canvassing of votes may validly proceed in the absence of watchers. Otherwise, candidates may easily delay the counting of votes or canvassing of returns by simply not sending their watchers. There was no incomplete canvass of returns, contrary to what the trial court declared. The evidence showed complete canvass in 31 Valenzuela, Metro Manila. "We cannot allow an election protest on such flimsy averments to prosper, otherwise, the whole election process will deteriorate into an 32 endless stream of crabs pulling at each other, racing to disembank from the water." Assuming for the nonce that the trial court was correct in holding that the final tally of valid votes as per revision report may be set aside because of the "significant badges of fraud", the same would be tantamount to a ruling that there were no valid votes cast at all for the candidates, and, thus, no winner could be declared in the election protest case. In short, there was failure of election. In such case, the proper remedy is an action before the Commission on Elections en banc to declare a failure of election or to annul the 33 election. However, the case below was an election protest case involving an elective municipal position which, under Section 251 of 34 the Election Code, falls within the exclusive original jurisdiction of the appropriate regional trial court. Nonetheless, the annulment of an election on the ground of fraud, irregularities and violations of election laws may be raised as an incident to an election contest. Such grounds for annulment of an election may be invoked in an election protest case. However, an election must not be nullified and the voters disenfranchised whenever it is possible to determine a winner on the basis of valid votes cast, and discard the illegally cast ballots. In this case, the petitioner admittedly received 17,007 valid votes more than the protestee, and therefore the nullification of the election would not lie. The power to nullify an election must be exercised with the greatest care with 35 a view not to disenfranchise the voters, and only under circumstances that clearly call for such drastic remedial measure. As heretofore stated, in this jurisdiction, elections are won on the basis of a majority or plurality of votes cast and received by the 36 candidates. "The right to hold an elective office is rooted on electoral mandate, not perceived entitlement to the office." More importantly, the trial court has no jurisdiction to declare a failure of election. Section 6 of the Omnibus Election Code provides that: "Sec. 6. Failure of Election.If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody of canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty (30) days after the cessation of the cause of such postponement or suspension of the election or failure to elect." (Emphasis supplied) Likewise, RA 7166 provides that: "Sec. 4. Postponement, Failure of Election and Special Elections".-- The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the 252 Election Laws Election Process and/or Proceedings
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Commission sitting en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election." (Emphasis supplied) It is the Commission (Comelec) sitting en banc that is vested with exclusive jurisdiction to declare a failure of election.
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"In a petition to annul an election under Section 6, Batas Pambansa Blg. 881, two conditions must be averred in order to support a sufficient cause of action. These are: (1) the illegality must affect more than 50% of the votes cast and (2) the good votes can be distinguished from the bad ones. It is only when these two conditions are established that the annulment of the election can be justified 39 because the remaining votes do not constitute a valid constituency." We have held that: "To declare a failure of election, two (2) conditions must occur: first, no voting has taken place in the precincts concerned on the date fixed by law or, even if there were voting, the election nevertheless resulted in a failure to elect; and, second, the 40 votes not cast would affect the result of the election." Neither of these conditions was present in the case at bar. More recently, we clarified that, "Under the pertinent codal provision of the Omnibus Election Code, there are only three (3) instances where a failure of elections may be declared, namely: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous 41 causes." Thus, the trial court in its decision actually pronounced a failure of election by disregarding and setting aside the results of the election. Nonetheless, as herein-above stated, the trial court erred to the extent of ousting itself of jurisdiction because the grounds for failure of election were not significant and even non-existent. More importantly, the commission of fraud can not be attributed to the protestee. There was no evidence on record that protestee had a hand in any of the irregularities that protestant averred. It is wrong for the trial court to state that the protestee had control over the "election paraphernalia" or over electric services. The Commission on Elections 42 has control over election paraphernalia, through its officials and deputies. The Comelec can deputize with the concurrence of the President, law enforcement agencies and instrumentalities of the government, including the Armed Forces of the Philippines, for the 43 exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. On the other hand, electric utility services in Metro Manila, including Valenzuela are under the control of its franchise holder, particularly the Manila Electric Company, a public service company, certainly not owned or controlled by the protestee. In fact, during election period, Comelec has control over such 44 utilities as electric and even telephone service. What is important, however, is that the voters of Valenzuela were able to cast their votes freely and fairly. And in the election protest case, the trial court was able to recount and determine the valid votes cast. Assuming that the trial court has jurisdiction to declare a failure of election, the extent of that power is limited to the annulment of the 45 election and the calling of special elections. The result is a failure of election for that particular office. In such case, the court can not 46 declare a winner. A permanent vacancy is thus created. In such eventuality, the duly elected vice-mayor shall succeed as provided by 47 law. We find that the trial court committed a grave abuse of discretion amounting to lack or excess of jurisdiction in rendering its decision proclaiming respondent Serapio the duly elected mayor of Valenzuela, Metro Manila, on the basis of its perception of the voice of the people of Valenzuela, even without a majority or plurality votes cast in his favor. In fact, without a single vote in his favor as the trial court discarded all the votes. Thus, the decision is not supported by the highest number of valid votes cast in his favor. This violated the right to due process of law of petitioner who was not heard on the issue of failure of election, an issue that was not raised by the 48 protestant. "A decision is void for lack of due process if, as a result, a party is deprived of the opportunity of being heard." The trial court can not decide the election protest case outside the issues raised. If it does, as in this case, the trial court is ousted of its 49 jurisdiction. Likewise, it is a basic principle that a decision with absolutely nothing to support it is void. "A void decision may be assailed or impugned at any time either directly or collaterally, by means of a petition filed in the same case or by means of a separate 50 action, or by resisting such decision in any action or proceeding where it is invoked." Here, the trial court indulged in speculations on 51 its view of the voice of the people, and decided the case disregarding the evidence, but on its own intuition, ipse dixit. How was this voice communicated to the trial court? Certainly not by competent evidence adduced before the court as it should be, but by extrasensory perception. This is invalid in law. Contrary to its own finding that petitioner obtained 83,600 valid votes against 66,602 valid votes for the respondent as second placer, or a plurality of 17,007 votes, the trial court declared the second placer as the winner. This is a blatant abuse of judicial discretion by any account. It is a raw exercise of judicial function in an arbitrary or despotic manner, 52 amounting to evasion of the positive duty to act in accord with law. In a special civil action for certiorari, the burden is on petitioner to prove not merely reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the public respondent Judge. "By grave abuse of discretion is meant capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and 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 53 at all in contemplation of law." We must emphasize that election to office is determined by the highest number of votes obtained by a candidate in the election. 253 Election Laws Election Process and/or Proceedings
The Judgment WHEREFORE, the Court GRANTS the petition. The Court ANNULS and DECLARES VOID the decision dated April 24, 2000 of the trial court in Election Protest Case No. V-14-98. The temporary restraining order we issued on May 8, 2000, is made permanent. Let Election Protest Case No. V-14-98 be remanded to the trial court for decision within a non-extendible period of fifteen (15) days from notice of this decision. The judge shall report to this Court on the decision rendered within five (5) days from rendition submitting a copy thereof to the Office of the Clerk of Court en banc. This decision is immediately executory. No costs. SO ORDERED.
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ABDUL GAFFAR P.M. DIBARATUN, Petitioner, vs. COMMISSION ON ELECTIONS and ABDUL CARIM MALA ABUBAKAR, Respondents. DECISION PERALTA, J.: This is a petition for certiorari of the Resolution of the Commission on Elections (COMELEC) en banc dated October 17, 2005 in SPA No. 02-481, which declared a failure of elections in Precinct No. 6A/7A, Barangay Bagoainguid, Municipality of Tugaya, Lanao del Sur 2 and annulled the proclamation of petitioner Abdul Gaffar P.M. Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections. The facts are as follows: Respondent Abdulcarim Mala Abubakar, a re-electionist candidate for the position of Punong Barangay of Barangay Bagoainguid, 4 Tugaya, Lanao del Sur, filed a petition before the COMELEC to declare a failure of elections in Precinct No. 6A/7A, Barangay Bagoainguid, Tugaya, Lanao del Sur and to annul the proclamation of petitioner Abdul Gaffar P.M. Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections. In his petition, respondent Abubakar alleged: xxxx 3. That on July 15, 2002 at around 10:30 o clock in the morning, the casting of votes in the above named precinct was commenced at its designated Polling Place in Cayagan Elementary School and while only ten (10) voters had actually voted, a certain ALIPECRY ACOP GAFFAR, who is the son of respondent Punong Barangay candidate ABDULGAFFAR DIBARATUN got inside the polling place and was caught in possession of Three (3) filled up ballots where candidate ABDULGAFFAR DIBARATUN were voted which he wanted to place or insert inside the ballot box for official (sic). 4. That when said ALIPECRY GAFFAR was confronted by the petitioners watcher and other watchers confronted him of said official ballots, he got mad and flared up and committed violence which disrupted and stopped the casting of votes and because of the commotion, the chairman left the ballot box which was held by the companions of Alipecry Acop Gaffar and destroyed the said ballot box, took the official ballot contained therein and inserted, placed therein a bundle of substituted ballots. 5. That due to the facts adverted to above, the casting of votes was stopped and it was never resumed nor continued. Only Ten (10) voters had actually voted out of One Hundred Fifty One (151) registered voters. 6. That even candidates for Barangay Chairmen and Barangay Kagawad were unable to cast their votes because the casting of votes was illegally disturbed, disrupted, interrupted and stopped by Alipecry Acop Gaffar despite the presence of numerous registered voters ready to cast their votes. xxxx 9. The Election Officer knowing fully that there was really a failure of election in the said precinct recommended that a special election be called for the said precinct. 10. That unknown to the petitioner, the respondent Board of Election Inspectors, in conspiracy and connivance with respondent Abdulgaffar Dibaratun, surreptitiously and clandestinely canvassed the election returns and then illegally proclaimed the respondent Abdulgaffar Dibaratun and issued Certificate of Canvass of Votes and Proclamation of Winning 5 Candidates dated July 16, 2002 which was ant[e]dated xerox copy of which is hereto attached as Annex "C" hereof. 255 Election Laws Election Process and/or Proceedings
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Respondents therein filed their Answer denying the allegations of herein private respondent. They contended that as 10 voters had actually voted, there was no failure of elections in the aforementioned precinct. They further contended that the petition was filed out of time. In the Resolution dated October 17, 2005, the COMELEC en banc granted the petition, the dispositive portion of which reads: WHEREFORE, premises considered, the Commission (en banc) RESOLVED, as it hereby RESOLVES, to GIVE DUE COURSE to the instant petition. ACCORDINGLY, the proclamation of respondent Abdulgaffar P.M. Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid, Tugaya, Lanao del Sur is hereby ANNULLED and he is thus ORDERED to CEASE AND DESIST from exercising the powers and responsibilities of the said office. Pending the conduct of the special elections yet to be scheduled by this Commission and until no Punong Barangay has been duly elected and qualified, the incumbent Punong Barangay shall continue to exercise the powers and duties of such office in a hold-over capacity in accordance with Section 5 of R.A. No. 9164 (An Act Providing for Synchronized Barangay and Sangguniang Kabataan Elections, Amending Republic Act No. 7160, As Amended, Otherwise Known as The Local Government Code of 1991, and For Other Purposes). Let the Office of the Deputy Executive Director for Operations (ODEDO), this Commission, furnish a copy of this Resolution to the 6 Provincial Election Supervisor of Lanao del Sur for the implementation of the same upon its finality. Dibaratun filed this petition, raising the following issues: 1) The COMELEC en banc gravely abused its discretion amounting to lack or excess of jurisdiction when it unjustly gave due course to the unmeritorious petition of respondent Abubakar for the simple reason that it was filed out of time and the validity of the proclamation of petitioner Dibaratun on July 16, 2002 can no longer be legally assailed after the expiration of ten (10) days. 2) Private respondent Abubakar is estopped to assert whatever rights he has in the election laws/rules of procedure when he desparately failed to make the proper objections during the casting, counting and canvassing of votes, and, therefore, the COMELEC en banc gravely abused its discretion amounting to lack or excess of jurisdiction when it erroneously heard and considered the unmeritorious petition of respondent Abubakar. 3) Public respondent COMELEC en banc gravely abused its discretion amounting to lack or excess of jurisdiction when it erroneously declared failure of elections in Precinct No. 6A/7A of Barangay Bagoainguid, Tugaya, Lanao del Sur and called for 7 special elections in the said precinct. The main issue is whether or not the COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in declaring a failure of elections in Precinct No. 6A/7A of Barangay Bagoainguid, Tugaya, Lanao del Sur and in annulling the proclamation of petitioner as the elected Punong Barangay. The petition is unmeritorious. The 1987 Constitution vests in the COMELEC the broad power to enforce all the laws and regulations relative to the conduct of 8 elections, as well as the plenary authority to decide all questions affecting elections except the question as to the right to vote. Section 6 of the Omnibus Election Code provides for the instances when the COMELEC may declare failure of elections, thus: SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. Sec. 6 of the Omnibus Election Code is reflected in Sec. 2, Rule 26 of the COMELEC Rules of Procedure. In its Resolution, the COMELEC en banc, citing Banaga, Jr. v. Commission on Elections, enumerated the three instances when a failure of elections may be declared by the Commission: 256 Election Laws Election Process and/or Proceedings
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(1) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; (2) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or (3) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes.1avvphi1 Before the COMELEC can act on a verified petition seeking to declare a failure of elections, two conditions must concur: (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and 10 (2) the votes not cast would have affected the result of the elections. The cause of such failure of election could only be any of the 11 following: force majeure, violence, terrorism, fraud or other analogous causes. The COMELEC en banc based its decision to declare a failure of elections in Precinct No. 6A/7A on the second instance stated in Section 6 of the Omnibus Election Code, that is, the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes. The COMELEC en banc held that in this case, it was undisputed that after only 10 registered voters cast their votes, the voting was suspended before the hour fixed by law by reason of violence. This was supported by the affidavits submitted by both petitioner and private respondent, who only disagreed as to the perpetrator of the violence as each party blamed the other party. In its Resolution, the COMELEC en banc averred: The letter of Mayor Abdul Jabbar Mangawan A.P. Balindong, Municipal Mayor of Tugaya, Lanao Del Sur, addressed to Chairman Benjamin Abalos, Sr., the Joint Affidavit of Norhata M. Ansari and Sahara T. Guimba, Poll Clerk and Third Member, respectively, of the Board of Election Inspectors of Precinct No. 6A/7A of Barangay Bagoainguid and the Joint Affidavit of PO1 Yahya M. Dirindigun and PO1 Casary C. Modasir all state that it is the petitioner and his relatives and followers who started the violence that caused the suspension of the voting. Meanwhile, the affidavits submitted by the witnesses of the petitioner all state that it is respondent Dibaratun and his followers and relatives who were the cause of the violence which resulted in the suspension of the election after only ten (10) people managed to 12 vote. The COMELEC en banc ruled that since both parties agreed that the elections were suspended before the hour fixed by law due to 13 violence caused by undetermined persons, there was obviously a failure of elections in the aforementioned precinct. The findings of fact of the COMELEC en banc are binding on this Court. The grounds for failure of election (i.e., force majeure, violence, terrorism, fraud, or other analogous cases) involve questions of fact, which can only be determined by the COMELEC en banc 14 after due notice to and hearing of the parties. An application for certiorari against actions of the COMELEC is confined to instances of 15 grave abuse of discretion, amounting to lack or excess of jurisdiction. The COMELEC, as the administrative agency and specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, has the expertise in its field so that its findings and conclusions are generally respected by 16 and conclusive on the Court. Thus, the Court agrees with the COMELEC that the elections in Precinct No. 6A/7A were suspended before the hour fixed by law for the closing of the voting due to violence. Only 10 voters were able to cast their votes out of 151 registered voters; hence, the votes not cast would have affected the result of the elections. The concurrence of these two conditions caused the COMELEC en banc to declare a failure of elections. When there is failure of elections, the COMELEC is empowered to annul the elections and to call for special 17 elections. Public respondent, therefore, did not commit grave abuse of discretion in its resolution of the case. Moreover, petitioner contends that respondent Abubakars petition for the declaration of failure of elections and to annul the proclamation of petitioner was in the nature of a pre-proclamation controversy under Sec. 241 of the Omnibus Election Code, but respondent failed to comply with the procedures therefor. Petitioner also contends that the petition was filed out of time, and that respondent failed to pay the docket fees on time. Petitioners arguments lack merit. Respondent Abubakars petition for declaration of failure of elections falls under Sec. 6 of the Omnibus Election Code. The allegations in respondents petition constitute one of the instances for the declaration by the COMELEC of failure of elections in Precinct No. 18 6A/7A. Hence, the COMELEC en banc took cognizance of the petition pursuant to Sec. 4 of Republic Act No. 7166, thus: 257 Election Laws Election Process and/or Proceedings
SEC. 4. Postponement, Failure of Elections and Special Elections.The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after the casting of 19 votes or on the day of the election. The Court finds the petition for declaration of failure of elections under Section 6 of the Omnibus Election Code to be in order, and it was properly disposed of by the COMELEC en banc. Hence, petitioner erred in contending that the petition of respondent Abubakar was in the nature of a pre-proclamation controversy under Sec. 241 of the Omnibus Election Code, but failed to comply with the procedures therefor. The issue addressed by the COMELEC en banc was whether the evidence submitted supported the allegations in the petition that violence suspended the elections in Precinct No. 6A/7A, Barangay Bagoainguid, Tugaya, Lanao del Sur, before the hour fixed by law for the closing of the voting on July 15, 2002, which resulted in failure of elections. The issue does not fall under preproclamation controversies. The issues that may be ventilated in a pre-proclamation controversy are enumerated in Sec. 243 of the 20 Omnibus Election Code, thus: 1. Illegal composition or proceedings of the board of canvassers; 2. The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of the Omnibus Election Code; 3. The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and 4. When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected 21 the standing of the aggrieved candidate or candidates. A petition to declare a failure of elections is neither a pre-proclamation controversy as classified under Sec. 5 (h), Rule 1 of the Revised 22 COMELEC Rules of Procedure, nor an election case. Further, petitioners basis for the allegation that private respondents petition was filed out of time is Sec. 252 of the Omnibus Election 23 Code, covering election contests for barangay offices, wherein a petition is filed with the proper municipal or metropolitan trial court within ten days after the proclamation of the results of the election. Granting that the petition filed was for an election contest, it would have been filed on time, since it was filed on July 26, 2002, which was within the ten-day period from the proclamation of petitioner on July 16, 2002. However, the petition filed by private respondent was not for an election contest under Sec. 252 of the Omnibus Election Code, but for the declaration of failure of elections under Section 6 of the same Code. The Court notes that the provisions on failure of elections in 24 Section 6 of the Omnibus Election Code and Sec. 2, Rule 26 of the COMELEC Rules of Procedure do not provide for a prescriptive period for the filing of a petition for declaration of failure of elections. It appears that the COMELEC en banc has the discretion whether or not to take cognizance of such petition. In this case, the petition was filed 11 days after the scheduled election. In its Resolution, the COMELEC en banc declared that petitioners allegation that the petition was filed out of time was rendered moot and academic by the 25 fact that the petition was already heard by the Commission and submitted for resolution. The COMELECs resolution of private respondents petition was in keeping with its function to ensure the holding of free, orderly, honest, peaceful, and credible elections. Lastly, petitioners allegation that private respondent failed to pay the docket fee on time does not appear to have been raised before the COMELEC; hence, it cannot be raised for the first time on appeal. Petitioners allegation of grave abuse of discretion by public respondent COMELEC en banc implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise of the power in an arbitrary manner by reason of passion, prejudice, or personal hostility; and it must be so patent or gross as to amount to an evasion of a positive duty or to a 26 virtual refusal to perform the duty enjoined or to act at all in contemplation of law. It is not present in this case, as public respondent issued the COMELEC Resolution dated October 17, 2005 based on the evidence on record and the law on the matter. WHEREFORE, the instant petition for certiorari is hereby DISMISSED. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 145802 April 4, 2001
DOMINADOR T. BELAC, petitioner, vs. COMMISSION ON ELECTIONS and ROMMEL DIASEN, respondents. SANDOVAL-GUTIERREZ, J.: This is a petition for certiorari and prohibition with prayer for a temporary restraining order and preliminary injunction, assailing the Resolutions dated February 22, 2000 and November 16, 2000 of the Commission on Elections (COMELEC) en banc in SPC No. 98170. The facts as shown by the records are: Rommel Diasen of the LAMMP and Dominador Belac of the LAKAS-NUCD were candidates for governor in the province of Kalinga during the May 11, 1998 national and local elections. On May 14, 1998, the Provincial Board of Canvassers started to canvass the results of the election. On May 15, 1998, when the Certificate of Canvass and Statement of Votes for the municipality of Pinukpuk were scheduled for canvassing, Diasen objected to the inclusion of the election returns of 42 precincts in the said municipality. On May 19, 1998, Diasen also questioned the inclusion of the election returns of 28 precincts of the town of Tinglayan. Within twenty-four (24) hours therefrom, Diasen filed with the Kalinga Provincial Board of Canvassers a petition for exclusion of the Certificates of Canvass and Statements of Votes for Pinukpuk and Tinglayan, alleging in the main that: 1. The Certificates of Canvass and Statements of Votes were not prepared by the Board of Election Inspectors as the same were not signed by the respective watchers for the candidates' political parties. 2. There were discrepancies in the tally of votes. The official LAMMP copies of the official returns have a lesser number of votes than those appearing in the Statements of Votes for the said municipalities. However, the Provincial Board of Canvassers proceeded to include in its canvass the results as stated in the election returns for Pinukpuk. On Diasen's objection to the inclusion of the election returns for Tinglayan, the Board ruled that it will only issue a certificate of correction since the discrepancies were caused by mere error in indicating the entries. On May 19, 1998, the Provincial Board of Canvassers proclaimed Belac as the duly elected governor for the province of Kalinga. On May 21, 1998, Diasen appealed to the COMELEC (First Division) from the rulings of the Provincial Board of Canvassers. On June 4, 1998, the COMELEC (First Division) issued a Resolution dismissing Diasen's appeal for lack of merit, thus: "Wherefore, premises considered, the appeal is hereby dismissed for lack of merit. The rulings of the Provincial Board of Canvassers on the petition for exclusion of Certificate of Canvass and Statement of Votes are hereby affirmed. The Provincial Board of Canvassers for Kalinga is hereby directed to reconvene and continue with the canvassing with reasonable dispatch and proclaim the winning candidate if the votes from the four precincts of Tinglayan, Kalinga where there was failure of elections would not materially affect the results of the election. "Considering that the records of the case show that additions in the COCs and SOVs of Pinukpuk for the votes of gubernatorial candidate Dominador Belac were made, the Law Department is directed to conduct a preliminary investigation for the commission of an election offense against the members of the Municipal Board of Canvassers of Pinukpuk, Kalinga.
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"The Law Department is similarly directed to conduct an immediate investigation on the possible commission of electoral fraud as alluded to in the ultimate paragraph before the herein dispositive portion. The Election Officer of Pinukpuk is directed immediately to cause the transfer of the Book of Voters for the 69 precincts of Pinukpuk to the Comelec Main Office [c/o Law Department] for this purpose." On June 19, 1998, Diasen filed a motion for reconsideration of the above Resolution which was elevated to the COMELEC en banc. While the said motion was pending resolution in the COMELEC en banc, the Chairman of the Provincial Board of Canvassers, Atty. Nicasio Aliping, convened the Board by calling the two other members in order to proclaim Belac as the new governor. But the two members declined, so only Atty. Aliping proceeded with Belac's proclamation. On June 28, 1998, Diasen filed with the COMELEC a separate petition (SPC No. 98-291) to dispute the proclamation of Belac. Meanwhile, on February 22, 2000, or almost two years after the filing of Diasen's motion for reconsideration on June 19, 1998, the COMELEC en banc promulgated the first assailed Resolution modifying the ruling of the First Division, thus: "WHEREFORE, premises considered, the resolution of the Commission (First Division) subject of the instant Motion for Reconsideration is hereby modified as follows: "1) The Provincial Board of Canvassers for Kalinga is hereby directed to proceed with the canvassing of votes for the office of the provincial governor deducting from the Certificates of Canvass of the Municipalities of Tinglayan and Pinukpuk the votes reflected on the election returns from the above-excluded precincts and thereafter proclaim the winning candidate for governor; "2) The directive to the Law Department to conduct appropriate investigations is affirmed with the modification, however, that the Board of Election Inspectors concerned for the municipalities of Pinukpuk and Tinglayan, as well as John Does, be likewise investigated for possible collusion in the commission of the election offense and election anomaly, subject of petitioner's case." The above Resolution was penned by Commissioner Manolo Gorospe, concurred in by Commissioners Japal Guiani and Luzviminda Tancangco. Chairman Harriet Demetriou and Commissioner Julio Desamito joined Commissioner Teresita Dyliacco Flores in her dissent. In short, the voting was 3-3. In view of the results of the voting, Belac filed a motion praying that the COMELEC en banc desist from implementing the February 22, 1 2000 Resolution in favor of Diasen, citing Section 6, Rule 18 of the COMELEC Rules of Procedure. The COMELEC granted the motion in its February 24, 2000 order and set the re-hearing on March 9, 2000. On February 28, 2000, pursuant to the COMELEC en banc's February 22, 2000 Resolution, the Provincial Board of Canvassers proclaimed Diasen as the duly elected governor. On the same date, Diasen took his oath of office as governor of Kalinga Province. On March 9, 2000, after receiving Atty. Aliping's Report on March 3, 2000 on Diasen's proclamation, the COMELEC en banc issued an order: "1. To direct Rommel Diasen to cease and desist from discharging the duties and functions of the Office of the Governor of Kalinga Province until further orders of this Commission during the pendency of this case; "2. To require both parties to comment on the report of Atty. Nicasio M. Aliping, Jr., Regional Election Attorney and Chairman of the Provincial Board of Canvassers of Kalinga, . . ., and to include in said comment why the proceedings of the Provincial Board of Canvassers on February 25, 2000 and the subsequent proclamation of Atty. Rommel Diasen on 28 February 2000 be declared null and void." Thereafter, the COMELEC en banc re-scheduled the re-hearing of Diasen's motion for reconsideration (in view of the 3-3 voting) set on March 9 to March 23, 2000. The parties agreed to file their respective memoranda. Meanwhile, on October 3, 2000, the COMELEC (Second Division) issued a Resolution in SPC Case No. 98-291 declaring null and void the proclamation of Belac as governor, holding that: "The proclamation of respondent Belac by the PBC Chairman alone-against the votes of the other two members of the PBC is illegal because the Omnibus Election Code (Section 255) provides that a majority vote of all the members of the Board of Canvassers shall be necessary to render a decision." 260 Election Laws Election Process and/or Proceedings
On November 16, 2000, Belac filed his "Manifestation with Formal Motion" claiming that the votes of Commissioners Gorospe and Guiani in the assailed Resolution dated February 22, 2000 should not be considered since they retired on February 15, 2000, o r before 2 the promulgation, citing the recently decided case of Ambil vs. Comelec. In this case, the Supreme Court held that "one who is no longer a member of the Commission at the time the final decision or resolution is promulgated cannot validly take part in that resolution or decision." Chairman Demetriou denied Belac's motion. On November 16, 2000, the Commission en banc, now with new members in view of the retirement of Commissioners Manolo Gorospe and Japal Guiani, promulgated the second challenged Resolution, the dispositive portion of which reads: "WHEREFORE, premises considered, the motion for reconsideration is hereby GRANTED. Accordingly, We hereby: "1. AFFIRM the proclamation of Petitioner-Appellant ROMMEL W. DIASEN as the duly elected Governor of Kalinga by Public Respondent Provincial Board of Canvassers of Kalinga; "2. RECALL and LIFT the Order promulgated on March 9, 2000 directing Petitioner-Appellant to cease and desist from performing the duties and functions of the Office of Governor for the province of Kalinga; "3. AFFIRM the directive to the LAW DEPARTMENT to conduct appropriate investigations of the Board of Election Inspectors for the municipalities of Pinukpuk and Tinglayan, as well as John Does, for possible collusion in the commission of election offenses and irregularities, subject in the above-entitled case; and "4. FURNISH a copy of this Resolution to the Office of the President, the Secretary of Interior and Local Government, the Chairman of the Commission on Audit, and the Secretary of the Sangguniang Panlalawigan of Kalinga Province, for their guidance and information." The above Resolution was concurred in by Commissioners Julio Desamito, Luzviminda Tancangco, Ralph Lantion and Rufino Javier. Commissioner Teresita Dy-Liaco-Flores again wrote a dissenting opinion, joined by Chairman Demetriou. Hence, this petition by Dominador Belac on the following grounds: "First Ground "Respondent COMELEC committed grave abuse of discretion amounting to lack and/or excess of jurisdiction and in fact implicitly deprived petitioner of DUE PROCESS, when it manifestly, deliberately and utterly FAILED AND REFUSED to act WITH DISPATCH on private respondent's SUMMARY Petition on Pre-Proclamation Controversy; the Supposed Final Resolution on Mere REHEARING promulgated only on November 16, 2000, AFTER MORE THAN 30 MONTHS from the filing of the Petition, clearly violated petitioners' right to due process, to a speedy disposition of cases and an (sic) clearly an act of grave abuse of discretion. "Second Ground "The November 16 Questioned Resolution (Annex 'A') was absolutely useless and was indeed superfluous (sic) and totally NULL AND VOID, considering that the same was supposed to be a Final Resolution on a supposed REHEARING under Rule 18, Section 6 of the COMELEC Rules, wrongfully premised on a supposed previous EQUALLY DIVIDED VOTE in the February 22, 2000 Resolution of the COMELEC En Banc, However, legally, procedurally and truthfully there was no such prior Equally Divided Resolution/Vote that would have required a Rehearing, as the COMELEC En Banc patently erred in counting and accepting even the null and void VOTES/signatures of two (2) Commissioners who retired on February 15, 2000 prior to the February 22, 2000 promulgation. "Third Ground "RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION WHEN IT EXCLUDED FROM CANVASS FORTY TWO (42) ELECTION RETURNS FOR PINUKPUK AND TWENTY EIGHT (28) ELECTION RETURNS FOR TlNGLAYAN, DESPITE UTTER LACK OF LEGAL AND FACTUAL BASES THEREFOR AND IN GROSS AND WANTON DISREGARD OF LAW AND WELL-SETTLED JURISPRUDENCE." Public respondent COMELEC en banc and private respondent Rommel Diasen filed their respective comments on the petition.
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Respondent COMELEC, in its comment, states that based on evidence on record, there were serious irregularities, tampering and falsification of the questioned election returns in the contested precincts at Pinukpuk and Tinglayan. On this ground, "although an exception," the COMELEC can rule on the exclusion of the questioned election returns. In his comment, respondent Diasen maintains that petitioner Belac can not be considered the duly elected governor of Kalinga because the respondent COMELEC (Second Division) unanimously declared null and void his proclamation in its resolution promulgated on October 3, 2000. Likewise, petitioner was not deprived of due process considering that he was given the opportunity to be heard and that he actively participated in the proceedings before the COMELEC. And by such active participation, he is estopped from questioning the validity of the votes cast by Commissioners Gorospe and Guiani who retired. The basic issue for our resolution is whether or not respondent COMELEC in a pre-proclamation case can go beyond the face of the election returns. It may be recalled that when the Provincial Board of Canvassers commenced the canvassing of the Certificates of Canvass and Statements of Votes for Pinukpuk and Tinglayan, respondent Diasen objected to the inclusion of the election returns of several precincts in both municipalities; and that within twenty-four hours therefrom, he filed a formal petition with the Provincial Board of Canvassers for the exclusion of the Certificates of Canvass and Statements of Votes for the said municipalities. Section 241 of the Omnibus Election Code provides that a pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the Board of Canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the Board or directly with the Commission, on any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. Section 243 of the Code enumerates the specific issues that may be raised in a pre-proclamation controversy as follows: "(a) Illegal composition or proceedings of the board of canvassers; (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates." The above enumeration is restrictive and exclusive. Thus, in Sanchez vs. COMELEC, this Court held: "3. The scope of pre-proclamation controversy is limited to the issues enumerated under sec. 243 of the Omnibus Election Code. The enumeration therein of the issues that may be raised in pre-proclamation controversy, is restrictive and exclusive. In the absence of any clear showing or proof that the election returns canvassed are incomplete or contain material defects (sec. 234), appear to have been tampered with, falsified or prepared under duress (sec. 235) and/or contain discrepancies in the votes credited to any candidate, the difference of which affects the result of the election (sec. 236), which are the only instances where a pre-proclamation recount may be resorted to, granted the preservation of the integrity of the ballot box and its contents, Sanchez' petition must fail. In his petition with the Provincial Board of Canvassers, respondent Diasen raised the following grounds: "1. The Certificate of Canvass of Votes is falsified. 2. The Certificate of Votes were prepared under duress, threats, coercion or intimidation. 3. The certificate of Canvass of votes is obviously manufactured as the Statement of Votes supporting it is likewise manufactured and falsified. 4. There was a deliberate and massive operation DAGDAG-BAWAS in the Certificate of Canvass and Statement of Votes in Pinukpuk, Kalinga. "1. The votes of Candidate for Governor, Dominador Belac, in Precincts 1A, 2A, 3A, . . . were all padded (OPERATION DAGDAG) or increased in the Statement of Votes per precinct as well as in the Election Returns. Election Laws Election Process and/or Proceedings
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"2. The Election Returns in the above-stated precincts cannot be the basis of a proper correction of the votes garnered by Belac because said election returns were likewise tampered with, falsified and manufactured as can be determined from the documents (ELECTION RETURNS) themselves due to the following: "A. The aforesaid election returns were already prepared even before the actual counting of votes as shown by the fact that they were prepared by persons other than the BEIs; (Board of Inspectors) B. The PENCRAFT of the BEIs in the aforesaid precincts differ from the pencraft of those who prepared the election returns; C. In the aforesaid election returns, the votes of Belac were drastically and obviously increased as can be gleaned from the fact that Belac garnered almost 100% of the registered voters in said precincts; D. That in order to determine the true will of the electorate[s], a RECOUNT of the votes must be ordered." Respondent Diasen's petition pertains to a pre-proclamation controversy. Specifically, it alleges that the votes for petitioner Belac were all padded through "Operation Dagdag"; the election returns for him (Diasen) was tampered, falsified and manufactured; and that the election returns were already prepared even before the counting of votes. He thus prays that the votes must be recounted. Diasen did not say that the alleged irregularities appear on the face of the election returns. Obviously, they came from external sources and, therefore, not manifest on the election returns. In fact, even the Certificates of Canvass and Statements of Votes for Pinukpuk and Tinglayan were in order. The Provincial Board of Canvassers explained that it refused to exclude the Certificate of Canvass of Tinglayan because it was regular on its face and the grounds raised by respondent Diasen are not among those in the list enumerated by law. Nothing therein sh ows it was manufactured or prepared under duress, threat or intimidation or that it was tampered or falsified. As to the Statement of Votes for Tinglayan, the reason why some election returns were not canvassed was because of ballot snatching in some areas. The incompleteness of the Statement of Votes, therefore, did not vitiate the Certificate of Canvass. With respect to the Certificate of Canvass and Statement of Votes for Pinukpuk, the Board checked the entries therein of the election returns in the presence of the parties' representatives. Having found there were some "Dagdag" for Belac, the Board required the correction of the Statement of Votes and the Certificate of Canvass basing the correction on the figures in the election returns, pursuant to the General Instructions for Boards of Canvassers. It was only after the proper correction was made that the Board included the Certificate of Canvass in the provincial canvass. In Matalam vs. COMELEC, this Court held that "in a pre-proclamation controversy, the COMELEC, as a rule, is restricted to an examination of the election returns and is without jurisdiction to go beyond or behind them and investigate election irregularities. 5 Indeed, in the case of Loong vs. Comelec, the Court, through Mr. Justice Regino Hermosisima, Jr., declared that "the prevailing doctrine in this jurisdiction ... is that as long as the returns appear to be authentic and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting or the counting of the votes." Loong cited the earlier ruling of the Court in Dipatuan vs. COMELEC and held: "The policy consideration underlying the delimitation both of substantive ground and procedure is the policy to determine as quickly as possible the result of the election on the basis of the canvass. Thus, in the case of Dipatuan vs. Commission on Elections, we categorically ruled that in a pre-proclamation controversy, COMELEC is not to look beyond or behind election returns which are on their face regular and authentic returns. A party seeking to raise issues resolution of which would, compel or necessitate COMELEC to pierce the veil of election returns which appear prima facie regular on their face, has his proper remedy in a regular election protest. By their very nature, and given the obvious public interest in the speedy determination of the results of elections, pre-proclamation controversies are to be resolved in summary proceedings without the need to present evidence aliunde and certainly without having to go through voluminous documents and subjecting them to meticulous technical examinations which take up considerable time." The above ruling was reiterated in the more recent case of June Genevieve R. Sebastian, et al. vs. COMELEC, et al., this Court stressing that it sees "no reason to depart from this rule." In granting respondent Diasen's motion for reconsideration of the Resolution of its First Division, the COMELEC ruled: "Based on evidence on record, there were serious irregularities, tampering, and falsification of the questioned returns in the said contested precincts in the municipalities of Tingalayan and Pinukpuk, Kalinga province. On these factual findings, We find for their exclusion from canvass, albeit in a pre-proclamation proceedings." 263 Election Laws Election Process and/or Proceedings
7 6 4
xxx
xxx
xxx
"Upon a re-examination and comparison of the copies for this Commission and for the LAMMP, We find that the same were prepared by a few select persons, assembled in a particular place, and pressured by circumstances attendant during elections. There is a striking likeness and uniformity of the handwriting found in the questioned election returns from the different precincts in the two aforementioned municipalities. We are in awe on the evident likeness of strokes in the handwriting in the entries in the election returns, despite the geographic distance of the two municipalities. There is no inescapable conclusionary finding that could be made other than to declare that the contested election returns as manufactured, and therefore, could not be a basis for a valid Certificates of Canvass and Statement of Votes." (Emphasis supplied). In concluding that there were serious irregularities, tampering and falsification of the questioned election returns; and that they were manufactured, respondent COMELEC looked beyond the face of the documents, hence, exceeding its authority, contrary to the mandate of Loong, reiterated in Matalam and Sebastian. We thus hold that respondent COMELEC committed grave abuse of discretion when it granted respondent Diasen's motion for reconsideration. At this point, counsel for respondent Diasen must remember that he should have determined carefully the proper legal remedy or recourse for his client, such as an election protest. Needless to state, a procedural flaw, as in this case, causes prejudice to the litigants and impairs the proper administration of justice. We now come on the peripheral issue regarding the votes of Commissioners Gorospe and Guiani in the February 22, 2000 Resolution. They had retired when they participated in the promulgation of the said Resolution. In Jamil vs. Comelec, this Court ruled: "x x x. A decision becomes binding only after it is validly promulgated. Consequently, if at the time of the promulgation of a decision or resolution, a judge or a member of the collegiate court who had earlier signed or registered his vote, has vacated his office, his vote is automatically withdrawn or cancelled. "The reason for the rule, which is logically applicable to decisions of constitutional commissions and administrative bodies or agencies, is cogently expressed in the case of Consolidated Bank and Trust Corporation v. Intermediate Appellate Court: xxx xxx xxx
8
'A decision becomes binding only after it is validly promulgated and not before. As we said only recently in re Emiliano Jurado, 'a decision or resolution of the Court becomes such, for all legal intents and purposes, only from the moment of its promulgation.' According to Chief Justice Moran in the landmark case of Araneta v. Dinglasan: 'Accordingly, one who is no longer a member of this court at the-time a decision is signed and promulgated, cannot validly take part in that decision. As above indicated, the true decision of the Court is the decision signed by the Justices and duly promulgated. Before that decision is so signed and promulgated, there is no decision of the Court to speak of. The vote cast by a member of the Court after the deliberation is always understood to be subject to confirmation at the time he has to sign the decision that is to be promulgated. The vote is of no value if it is not thus confirmed by the Justice casting it. The purpose of this practice is apparent. Members of this Court, even after they have cast their votes, wish to preserve their freedom of action till the last moment when they have to sign the decision, so that they may take full advantage of what they may believe to be the best fruit of their most mature reflection and deliberation. In consonance with this practice, before a decision is signed and promulgated, all opinions and conclusions stated during and after the deliberation of the Court, remain in the breasts of the Justices, binding upon no one, not even upon the Justices themselves. Of course, they may serve for determining what the opinion of the majority provisionally is and for designating a member to prepare the decision of the Court, but in no way is that decision binding unless and until signed and promulgated. We add that at any time before promulgation, the ponencia may be changed by the ponente. Indeed, if any member of the court who may have already signed it so desires, he may still withdraw his concurrence and register a qualification or dissent as long as the decision has not yet been promulgated. A promulgation signifies that on the date it was made the judge or judges who signed the decision continued to support it. If at the time of the promulgation, a judge or a member of a collegiate court has already vacated his office, his vote is automatically withdrawn. . . .' " 264 Election Laws Election Process and/or Proceedings
The rule has not been modified. In fact in the recently decided case of Ruperto A. Ambil, Jr. vs. Comelec, this Court passed upon a resolution written by Commissioner Guiani himself, holding that the said resolution is null and void ab initio because: "A final decision or resolution becomes binding only after it is promulgated and not before. Accordingly, one who is no longer a member of the Commission at the time the final decision or resolution is promulgated cannot validly take part in that resolution or decision. Much more could he be the ponente of the resolution or decision. The resolution or decision [of the Division] must be signed by a majority of its members and duly promulgated." Upon their retirement, Commissioners Gorospe and Guiani had been stripped of all authority to participate in the promulgation of the February 22, 2000 Resolution. Pursuant to Section 6 of the Comelec Rules of Procedure, earlier quoted, the Resolution dated June 4, 1998 of the First Division is therefore deemed affirmed as the votes of Commissioners Gorospe and Guiani are considered cancelled. Indeed, there was initially no evenly divided vote in the February 22, 2000 Resolution that should have merited a rehearing or the issuance of the challenged Resolution dated November 16, 2000 by the new members of respondent Comelec. On petitioner's contention that there was a long and deliberate delay on the part of public respondent Comelec as previously stated, respondent Diasen's motion for reconsideration of the Resolution of the Comelec First Division was filed with respondent Comelec en banc on June 19, 1998. However, it was only on February 22, 2000, or after almost two (2) years, when the motion was resolved. In view of the equally divided voting, a rehearing was ordered. The parties merely submitted memoranda. Yet, it was only on November 16, 2000, or after almost nine (9) months from February 22, 2000, when respondent Comelec finally promulgated the other challenged Resolution dated November 16, 2000. Pre-proclamation controversies are mandated by law to be summarily disposed of.
10
Here, the Comelec failed to comply with this mandate. Let it be reminded that pre-proclamation controversies, by their very nature, are to be resolved in summary proceedings which obviously should be disposed of without any unnecessary delay. WHEREFORE, the petition is hereby given due course and is GRANTED. The challenged Resolutions dated February 22, 2000 and November 16,. 2000 of respondent COMELEC en banc are SET ASIDE, while the Resolution of the COMELEC (First Division) dated June 4, 1998 is AFFIRMED. Respondent COMELEC is directed to forthwith conduct the proclamation of petitioner Dominador Belac in accordance with law. SO ORDERED.
265
G.R. Nos. 139573-75 March 7, 2000 JUNE GENEVIEVE R. SEBASTIAN, and DARIO ROMANO, petitioners, vs. THE COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF STO. TOMAS, DAVAO DEL NORTE (Jandelie B. Espaola, Liza D. Baco, and Valentin Gador), SALVADOR ROYO, and ERIC ESTELA, respondents.
QUISUMBING, J.: Before us is a petition for certiorari seeking the annulment of the Resolution issued by respondent Commission on Elections, in SPC Nos. 98-129, 98-142, and 98-169, on August 24, 1999, allowing the inclusion in the canvass of votes in Sto. Tomas, Davao del Norte, of 25 election returns which petitioners claimed to have been prepared through threats and undue influence. Said resolution reversed an earlier resolution of the COMELEC Second Division excluding the questioned election returns from the canvass of votes. Petitioners likewise seek the issuance of a temporary restraining order to enjoin the Municipal Board of Canvassers of Sto. Tomas from continuing with the canvassing of votes and including therein the contested election returns. The antecedent facts are as follows: Petitioner June Genevieve Sebastian was the mayoralty candidate of the Reporma Party in Sto. Tomas, Davao del Norte, during the May 11, 1998 elections. Petitioner Dario Romano was her running mate. Private respondent Salvador Royo was the mayoralty candidate of the Lakas-NUCD-UMDP, while private respondent Eric Estela was his candidate for vice mayor. On election day, as the Municipal Board of Canvassers was preparing to canvass the election returns, petitioners sought the exclusion from the canvass of several election returns from certain precincts in barangays Kimamon, New Katipunan, Lunga-og, Balagunan, Pantaron, and Tibal-og. 1 Petitioners claimed that the election returns from these areas were prepared under "extreme duress, threat, 2 intimidation and political pressure and influence." Petitioners also manifested that four election returns were missing. The Municipal Board of Canvassers denied the petition, prompting petitioners to file three separate appeals with the COMELEC, docketed as SPC No. 98-129, SPC No. 98-142, and SPC No. 98-169. The COMELEC First Division dismissed the appeal docketed as SPC No. 98-129 on July 15, 1998. No motion for reconsideration was 3 filed by petitioners as appellants therein, thus, the dismissal became final and executory on July 30, 1998. Meanwhile, the COMELEC Second Division, ruling on the remaining consolidated appeals in a decision promulgated on August 14, 1998, ruled in favor of petitioners and ordered the exclusion of 25 election returns from the canvass of votes in Sto. Tomas. On August 18, 1998, private respondent Royo filed a motion for reconsideration of said resolution. The COMELEC en banc, as earlier stated, reversed the ruling of the COMELEC Second Division. Hence, this petition, in which petitioners assign the following errors: THE HONORABLE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DISREGARDED THE DOCTRINE ENUNCIATED BY THE HONORABLE SUPREME COURT IN THE LEADING CASE OF ANTONIO vs. COMELEC, G.R. NO. L-31604, APRIL 17, 1970 IN THE DISPOSITION OF THE INSTANT CASE; THE HONORABLE COMMISSION ON ELECTIONS COMMITTED A GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT UNILATERALLY DISREGARDED THE OVERWHELMING EVIDENCE OF COERCION, UNDUE INFLUENCE, EXTREME PRESSURE, THREAT, INTIMIDATION AS WELL AS ALL THE ENVIRONMENTAL CIRCUMSTANCES THAT ATTENDED THE 266 Election Laws Election Process and/or Proceedings
PREPARATION, TRANSMISSION, RECEIPT, CUSTODY AND APPRECIATION OF THE TWENTY-FIVE 4 CONTESTED RETURNS. Petitioners concede that, when the election returns appear to be regular, authentic, and duly accomplished on their face, the 5 COMELEC need not inquire into allegations of irregularities in the casting or counting of votes. However, petitioners question the COMELEC's alleged failure to consider what they claim to be evidence of undue influence, extreme pressure, threat, and coercion that attended the preparation, transmission, custody and appreciation by the Board of Election Inspectors of the contested election returns. 6 These, according to petitioners, affected the regularity, due execution, and authenticity of the election returns. Petitioners also fault the COMELEC for not taking into account the atmosphere prevailing during the elections at Sto. Tomas, which they claim to be similar to the circumstances obtaining in the case of Antonio v. COMELEC, (32 SCRA 319 [1970]). In that case, returns prepared by election inspectors under threats from armed men were excluded from the canvass of votes in Batanes. For its part, the COMELEC pointed out that it could not justifiably exclude from the canvass of votes, in a pre-proclamation controversy, election returns that on their face appear regular. A pre-proclamation controversy is limited to the examination of incomplete, falsified, or materially defective returns, which appear as such on their face. Where the issues raised would require the COMELEC to look 7 beyond the face of the return, the proper remedy is a regular election protest. It is worth noting that petitioners do not claim that the returns themselves are not regular, genuine or authentic. Petitioners admit that the alleged fraud, deceit, and intimidation came from external sources, and, therefore, not manifest on the face of the returns. The 8 alleged fraudulent scheme was designed, according to petitioners, precisely to avoid detection on the face of the returns. What petitioners assert is that the preparation of the returns had been marred by undue influence and intimidation, thus affecting their regularity, due execution and authenticity. Petitioners argue that this justifies the examination of circumstances beyond the face of the returns. We find this argument untenable. This petition stemmed from a pre-proclamation controversy. In a long line of cases, we have consistently held that a pre-proclamation 9 controversy is limited to an examination of the election returns on their face. The COMELEC as a general rule need not go beyond the face of the returns and investigate alleged election irregularities. 10 We see no reason to depart from this rule in this petition. In our view, there is no exceptional circumstance present in this controversy similar to that proved in the Antonio case, aforecited, where the COMELEC as well as the Court found "precipitate canvassing, terrorism, lack of sufficient notice to the Board, and disregard of manifest irregularities in the face of the questioned returns" 11 to justify the summary annulment of the canvass and the annulment of petitioner Antonios proclamation. Rather, we are guided here by the holding of the Court in the case of Matalam, in Maguindanao, where it is said: . . . Because what [petitioner] is asking for necessarily postulates a full reception of evidence aliunde and the meticulous examination of voluminous election documents, it is clearly anathema to a pre-proclamation controversy which, by its very nature, is to be heard summarily and decided on as promptly as possible. 12 To require the COMELEC to examine the circumstances surrounding the preparation of election returns would run counter to the rule that a pre-proclamation controversy should be summarily decided. 13 In Sison v. COMELEC, 14 we ruled that: . . . The reason underlying the delimination both of substantive ground and procedure is the policy of the election law that pre-proclamation controversies should be summarily decided, consistent with the law's desire that the canvass and proclamation be delayed as little as possible. That is why such questions which require more deliberate and necessarily longer consideration, are left for examination in the corresponding election protest. Where the resolution of the issues raised would require the COMELEC to "pierce the veil" of election returns that appear prima facie regular, the remedy is a regular election protest, 15 . . . wherein the parties may litigate all the legal and factual issues raised by them in as much detail as they may deem necessary or appropriate. 16 Here, we note favorably the position taken by the Office of the Solicitor General. Petitioners have not demonstrated precisely how the preparation and appreciation of election returns were adversely affected by, as alleged by petitioners, "harassments of petitioners' supporters," "midnight convoys of armed men riding in motorcycles," and "raids by the military in different houses" in Sto. Tomas. We are constrained to agree with the OSG's submission that on the basis of our holding in Salih v. COMELEC, 279 SCRA 19, respondent 267 Election Laws Election Process and/or Proceedings
COMELEC herein "could not justifiably exclude said returns on the occasion of a pre-proclamation controversy whose office is limited to incomplete, falsified or materially defective returns which appear as such on their face." 17 Nor could we fault public respondents herein for grave abuse of discretion in refusing petitioners call to exclude election returns they claim as the product of coercion and falsification, even if they appear clean on their face. For respondent COMELEC had conducted hearings on the matter, where petitioners and other parties concerned had submitted affidavits and presented witnesses. The COMELEC found, however, that the evidence presented by petitioners failed to prove convincingly that the assailed returns were tainted by duress. Contrary to petitioners claim, NAMFREL volunteers and the Poll Watchers in the area attested that the election activities therein were generally peaceful. Even the Board of Election Inspectors themselves swore nobody threatened or coerced them in the performance of their duties, and that the elections in their area were peaceful, honest and orderly. Given these factual circumstances, which could not be deemed evidently self-serving on its part, respondent COMELEC could not have prudently and fairly excluded the assailed returns. The better part of discretion in so delicate a matter is to await the filing of the appropriate action, like a regular election protest, if the petitioners were so minded to pursue the proper remedy, rather than delay the determination of the popular will. WHEREFORE, the petition is DISMISSED, and the resolution of the COMELEC en banc in SPC No. 98-129, SPC No. 98-142, and SPC No. 98-169 is hereby AFFIRMED.1wphi1.nt SO ORDERED.
268
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 159369 March 3, 2004
NANCY SORIANO BANDALA, petitioner, vs. COMMISSION ON ELECTIONS, NEW BOARD OF CANVASSERS FOR OROQUIETA CITY and ALEJANDRO G. BERENGUEL, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.: Election cases involve not only the adjudication of the private interests of rival candidates, but also the paramount need of dispelling the uncertainty which beclouds the real choice of the electorate with respect to whom shall discharge the 1 prerogatives of the offices within their gift. Thus, election cases are imbued with public interest. Laws governing election contests must be liberally construed to the end 2 that the will of the people in the choice of public officials may not be defeated by mere technical objections. Before us is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, assailing the Resolution dated August 14, 2003 rendered by the Commission on Elections En Banc in SPC No. 01-277, entitled "Alejandro G. Berenguel, Candidate for City Mayor, Oroquieta City vs. Board of Canvassers, Oroquieta City and Nancy Soriano Bandala, Candidate for City Mayor, Oroquieta City." The antecedents of the present petition are as follows: Nancy Soriano Bandala, herein petitioner, and Alejandro G. Berenguel, herein respondent, were mayoralty candidates in Oroquieta City, Misamis Occidental during the May 14, 2001 national and local elections. During the canvass of the election returns conducted by the City Board of Canvassers of Oroquieta City, respondent objected to the inclusion of eighty (80) election returns on the following grounds: (1) that seventy-one (71) election returns were not secured with inner paper seals; (2) that seven (7) election returns do not indicate the party affiliation of the watchers-signatories; and (3) that two (2) election returns have missing pages which contain the list of the local city candidates. In an Omnibus Ruling dated May 19, 2001, the City Board of Canvassers overturned the objection of respondent and included in its canvass the contested election returns. On June 30, 2001, petitioner was proclaimed the duly elected mayor of Oroquieta City. Upon appeal, the Second Division of the Commission on Elections (COMELEC) issued a Resolution dated September 5, 2002 affirming the Omnibus Ruling of the City Board of Canvassers, holding that: Lack of inner seal of an election return does not necessarily mean that the same is spurious and/or was tampered with. Such tampering, or its being spurious must appear on the face of the election return itself. It is the ministerial function of the board of canvassers to count the results as they appear in the returns which on their face do not reveal any irregularities or falsities. [Cf. Balindong vs. Commission on Elections, 27 SCRA 567] In the canvassing of election returns, the Board of Canvassers, which is an ad hoc body, need not look beyond or behind the returns or do an act which would necessitate the piercing of the returns and the presentation of evidence aliunde. [Cf. Usman vs. Commission on Elections, 42 SCRA 667] 269 Election Laws Election Process and/or Proceedings
3
Significantly, we observe that what the petitioner has presented were just affidavits mostly executed by his supporters, the nature of which has been ruled by the Supreme Court as self-serving. [Casimiro vs. COMELEC, 170 SCRA 627] We cannot just rely on this kind of evidence because what is at stake is the paramount interest of the electorate. Finally, our General Instructions for the Board of Election Inspectors (BEI) [COMELEC Resolution No. 3742] does not require the indication by the poll watchers of their respective political party/candidate being represented. What the rule instructs is this: "SEC. 45. Preparation of election returns and tally board. The boards shall prepare in their own handwriting the election returns and tally board simultaneously with the counting of votes in their respective polling places. The election returns shall be prepared in seven (7) copies. x x x After all the ballots have been read: a) x x x d) The watchers if any, shall affix their signatures and imprint their thumb marks on the right hand portion of the election returns and the tally board; and x x x" Clearly, nothing in the afore-quoted rule requires the poll watcher to indicate the party/candidate he represents. Respondent then filed with the COMELEC en banc a motion for reconsideration. On August 14, 2003, the COMELEC en banc promulgated a Resolution reversing and setting aside the Second Division's Resolution. The dispositive portion of which reads: "ACCORDINGLY, the Commission en banc hereby renders judgment to: 1. EXCLUDE the one hundred one (101) election returns found without the inner paper seals enumerated in the Canvassing Report of the City Board of Canvassers of Oroquieta City dated 24 May 2001, from the canvass; 2. NULLIFY the proclamation of Oppositor Nancy Soriano Bandala made on 30 June 2001; 3. CONSTITUTE a New City Board of Canvassers for Oroquieta City composed of Atty. Nelia Aureus as Chairman; Atty. Allen Francis Abaya as Vice-Chairman; and, Atty. Norina Tangaro as member-Secretary; 4. DIRECT the City Election Officer of Oroquieta City to BRING to the Commission at Manila all the election returns and other election documents subject of and pertaining to the canvass made by the Board and TURN-OVER the same under receipt to the New City Board of Canvassers for Oroquieta City; and, 5. DIRECT the New City Board of Canvassers for Oroquieta City to CONVENE with notice to the parties, upon finality of this Resolution, CANVASS the election returns and, thereafter, PROCLAIM the winning candidate for Mayor of Oroquieta City. 6. The aforenamed BEIs, with the exception of the BEI of Precinct No. 134A of Barangay Dolipos Alto, composed of Catalina J. Bajade as Chairman, Emma J. Aganos as Poll Clerk, and Rosenda P. Baloncio as Third Member and the Chairperson, Margie B. Lamparas of the BEI of Precinct No. 145A1 of Barangay Upper Lamac, are recommended to be charged administratively before the Department of Education. 7. Atty. Francisco G. Pobe is hereby suspended from Office with forfeiture of salary from the promulgation of this resolution until after the lections of 10 May 2004 with stern warning that repetition of the same or similar offense will be dealt with more severely. 8. The Law Department, this Commission, is hereby DIRECTED to file the appertaining information for violation of Section Z (15) and (21), and Section 212, both of the Omnibus Election Code (Batas Pambansa Blg. 881) against these BEIs and Mr. Filoteo C. Alngohuro, Chairman of the City Board of Canvassers of Oroquieta City, there being strong prima facie case against them. SO ORDERED." 270 Election Laws Election Process and/or Proceedings
4
Hence, this petition for certiorari with prayer for issuance of a temporary restraining order and/or writ of preliminary injunction. On August 27, 2003, we issued a status quo ante order. Petitioner contends that the COMELEC en banc acted with grave abuse of discretion (1) in excluding 101 election returns based on a formal defect of lack of inner paper seals in the election returns; and (2) in nullifying her proclamation as the winning candidate for mayor of Oroquieta City. The petition is impressed with merit. I May the ground of lack of inner paper seals in the election returns be considered a proper issue in a pre-proclamation controversy? There is a need to emphasize the definition of a pre-proclamation controversy under Section 241 of the Omnibus Election Code, thus: "SEC. 241. Definition. - A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns." The issues that may be raised in a pre-proclamation controversy are enumerated in Section 243 of the same Code, thus: "SEC. 243. Issues that may be raised in pre-proclamation controversy. - The following shall be proper issues that may be raised in a pre-proclamation controversy: (a) Illegal composition or proceedings of the board of canvassers; (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Section 233, 234, 235 and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates." There being no inner paper seals pasted on 101 election returns coming from numerous polling precincts, the COMELEC en banc then concluded that the election returns in question appear to be obviously falsified and/or manufactured, the results of which certainly affected the standing of respondent. According to the COMELEC en banc, this is an issue (under Sec. 243 (b) in the enumeration) that may be raised in a pre-proclamation controversy. The lack of inner paper seals in the election returns does not justify their exclusion from the canvassing. Indeed, it is not a proper subject of a pre-proclamation controversy. In the Matter of the Petition to Exclude Election Returns contained in Nine (9) Ballot Boxes, Amelita S. Navarro vs. Commission on 5 Election, we held: "While the aforesaid grounds (lack of inner and outer paper seals and lack of signatures of watchers, among others) may, indeed, involve a violation of the rules governing the preparation and delivery of election returns for canvassing, they do not necessarily affect the authenticity and genuineness of the subject election returns as to warrant their exclusion from the canvassing. The grounds for objection to the election returns made by petitioners are clearly defects in form insufficient to support a conclusion that the election returns were tampered with or spurious." Likewise, in Baterina vs. COMELEC, we ruled: "The grounds raised by petitioners for the exclusion of the election returns from the canvassing, as stated in their 'Appeal Memorandum' before the COMELEC x x x refer to the failure to close the entries with the signatures of the election inspectors; 271 Election Laws Election Process and/or Proceedings
6
lack of inner and out papers seals; canvassing by the BOARD of copies not intended for it; lack of time and date of petitioners' watchers; and lack of authority of person receiving the election returns. "While the aforesaid grounds may, indeed, involve a violation of the rules governing the preparation and delivery of election returns for canvassing, they do not necessarily affect the authenticity and genuineness of the subject election returns as to warrant their exclusion from canvassing. The grounds for objection to the election returns made by petitioners are clearly defects in form insufficient to support a conclusion that the election returns were tampered with or spurious. x x x. On the basis of formal defects alone, such palpable irregularity cannot be said to have been established herein." II May the COMELEC look beyond the election returns and receive evidence aliunde in a pre-proclamation controversy? Assuming that the ground of lack of inner paper seals in election returns is a proper issue in a pre-proclamation controversy, the COMELEC cannot investigate and receive evidence to determine why those inner paper seals are missing. A pre-proclamation controversy is limited to an examination of the election returns on their face and the COMELEC as a 7 general rule need not go beyond the face of the returns and investigate the alleged election irregularities. In Matalam vs. Commission on Elections, we stressed that "in a pre-proclamation controversy, the COMELEC, as a rule, is restricted to an examination of the election returns and is without jurisdiction to go beyond or behind them and investigate election irregularities." Thus, the COMELEC acted beyond its jurisdiction when it directed the Provincial Election Supervisor of Misamis Occidental to investigate and receive evidence "to determine once and for all the mystery behind the missing inner paper seal of the subject election returns" or the failure of the Board of Election Inspectors (BEIs) to paste the inner seals of the election returns. III Did the COMELEC commit grave abuse in discretion in nullifying the proclamation of petitioner as mayor of Oroquieta City? In its assailed Resolution, the COMELEC en banc held that the City Board of Canvassers acted without authority when it arbitrarily proclaimed petitioner herein as the duly elected mayor of Oroquieta City, in gross violation of Section 20 (i) of Republic Act 7166 which reads: "Section 20. Procedure in Disposition of Contested Election Returns. xxx (i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election." Suffice it to state that the above provision applies only where the objection deals with a pre-proclamation controversy, not where, as in 9 the present case, it raises or deals with no such controversy. It bears reiterating that the lack of inner paper seals in the election returns is not a proper subject of a pre-proclamation controversy. Respondent's recourse should have been to file an election protest. Where a party raises issues, the resolution of which would compel the COMELEC to pierce the veil of election returns which appear prima facie regular on their face, his proper remedy is an election protest. In this proceeding, the parties may litigate all the legal and 10 factual issues raised by them in as much detail as they may deem necessary or appropriate. WHEREFORE, the petition is GRANTED. The challenged Resolution dated August 14, 2003 of the COMELEC en banc in SPC No. 01277 is REVERSED and SET ASIDE. The Resolution dated September 5, 2002 of the COMELEC Second Division is AFFIRMED. SO ORDERED.
8
272
FRANCISCO D. OCAMPO, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF STA. RITA, PAMPANGA and ARTHUR L. SALALILA, respondents. x-----------------------------x G.R. No. 137470 February 15, 2000
FRANCISCO D. OCAMPO, petitioner, vs. ARTHUR L. SALALILA, respondent. KAPUNAN, J.: The case before us hinges on the question of whether or not to include in the canvass the contested election returns. The facts are as follows: Francisco D. Ocampo and Arthur L. Salalila were candidates for Mayor in the Municipality of Sta. Rita, Province of Pampanga during the May 11, 1998 elections. There were 78 precincts in said municipality. During the canvassing of the election returns which started on May 12, 1998 and ended on May 14, 1998 petitioner moved for the exclusion of the election returns in 8 precincts from Baranga y Basilia considering that the turnout of votes was allegedly lopsided against his favor. The results were as follows: VOTES RECEIVED BY Precinct No. OCAMPO 1. 88-A-1 2. 89-A-1 0 0 SALALILA 165 104 192 152 236 205 155 115
1
3. 90-A & 90-A-1 3 4. 92-A 5. 93-A & 94-A 6. 99-A & 100-A 7. 104-A 8. 105-A 0 7 7 5 3 25 votes
1,324 votes
The grounds for the exclusion of the election returns in the aforementioned precincts were: i.e: (1) that the same were obviously manufactured; (2) they were defective for they contained no data on the number of registered votes in the precinct, actual number of votes cast and the number of valid votes cast; and (3) other alleged discrepancies in the data on votes cast and total number of 2 registered voters and excess ballots. Finding the contested election returns to be genuine and authentic and without merit, the Municipal Board of Canvassers (MBC) ruled 3 to order the inclusion in the canvass of the contested election returns.
273
On May 16, 1998, petitioner went to see the Chairman of the MBC at his office to file his Notice of Appeal. Since the latter was not present, petitioner instead filed said notice with Board Members Nelia Salvador and Diosdado L. Amio who, however, refused to accept the same in line with the Board's earlier ruling not to receive anymore the Notice of Appeal. Upon request, a Certification to that effect 4 was issued by Nelia Salvador and Disodado Amio on the same date. On May 18, 1998, petitioner went to the COMELEC and filed a formal appeal. This was docketed as SPC No. 98-056. On June 29, 1998, the COMELEC Second Division, rendered a Resolution stating the following: xxx xxx xxx
5
Respondent MBC should have at least suspended its canvass in so far as the questioned or contested election returns were concerned, . . . . In precinct 88-A-1 the election return is lacking in material data as there were no entries as to the number of registered voters in the precinct, the actual number of votes cast and the number of valid votes cast. In such a situation it is incumbent upon the MBC to call the members of the Board of Election Inspectors (BEI) to complete the data which failed to do so. In precinct 89-A-1 there was a discrepancy in the figure of the total number of valid votes cast and the number of votes received by private respondent Salalila. Moreover, two (2) member (sic) of the BEI did not affixed (sic) their thumbmark in the questioned election returns rendering their authenticity doubtful. There is material discrepancy in the election return as it is (sic) states therein that there were 197 voters who actually voted. And also it was also stated therein that there were 22 excess ballots and therefore the number of voters who actually voted will be 219 in excess of the 215 total number of registered voters for the precinct. In precincts 92-A the return states that there were 153 voters who actually voted and private respondent Salalila received 152 votes while petitioner got zero (0), one (1) vote therefore is clearly missing. In 93-A and 94-A there were an excess of the number of voters who actually voted. The election returns shows that there were 245 voters who actually voted yet there were 27 excess ballots found in the ballot box, but the number of voters in the precinct is only 272, meaning there was a one hundred per cent (100%) turn-out of voters for those precinct but the election return states that there were only 245 who actually voted. In precinct 99-A, 100-A and 104-A there were also no entries on the data of voters and ballots. Again the MBC should have at least called the members of the BEI to complete the data in the election return and explain why they failed to do the same. In precinct 105-A it is obvious that there were discrepancies in the material data in that the total number of registered voters in the precinct is 141 while the total number accordingly of the voters who actually voted is 121 but found out inside the ballot box were 144 valid ballots which obviously in excess of three (3) from the total number of the registered voters for the precinct. But more than the above findings what is significant is that in Precincts 93-A and 94-A there were erasures in the election return which accordingly was made to reflect the correct votes received by petitioner and private respondent. According to the Chairman of BEI, private respondent received 96 votes while, petitioner received 4 votes instead of 97 yet the election returns states that petitioner received only three votes instead of four as claimed but (sic) the Chairman of the BEI. Such erasures manifest (sic) on the election return puts the authenticity of the same in issue and should have been excluded in the canvass. While it is true that the Board of Canvassers is essentially a ministerial body and has no power to pass upon questions of whether there are illegal voters or other election frauds. (Dizon v. Provincial Board, 52 Phil 47; Sangki v. Comelec, 21 SCRA 1392), it is also true that in case of patent irregularity in the election returns, such as patent erasures and super-impositions in words and figures on the face of the returns submitted to the board, it is imperative for the board to stop the canvass of such returns so as to allow time for verification. A canvass and proclamation made withstanding such patent defects in the returns which may affect the result of the election, without awaiting remedies, is null and void. (Purisima v. Salonga, 15 SCRA 704). WHEREFORE, the Commission (Second Division) resolves to GIVE DUE COURSE to the appeal and the eight (8) contested election returns are hereby ordered excluded from the canvass for the position of the municipal mayor of Sta. Rita, Pampanga. The proclamation made by respondent MBC on May 14, 1998 proclaiming private respondent as duly elected Mayor of Municipality of Sta. Rita, Pampanga is hereby SUSPENDED. Respondent MBC is hereby directed to re-convene and issue a new certificate of canvass of votes excluding the election returns subject of this appeal and on the basis of which proclaim the winning candidate for Mayor of the Municipality of Sta. Rita, Pampanga. 274 Election Laws Election Process and/or Proceedings
SO ORDERED.
On July 3, 1998, private respondent Salalila filed a motion for reconsideration.
On November 19, 1998, the COMELEC en banc promulgated the questioned resolution reversing the findings of the COMELEC Second Division. The decretal portion of which states: WHEREFORE, in view of the foregoing, the Resolution promulgated by this Commission (Second Division) on 29 June 1998 is hereby reversed and set aside. The suspension of the effects of the proclamation of the respondent/appellee ARTHUR L. SALALILA, is hereby lifted. His proclamation as MAYOR of the municipality of Sta. Rita, Pampanga on 14 May 1998 is hereby confirmed. SO ORDERED.
8
Hence, petitioner Ocampo filed the iinstant petition citing the grave abuse of discretion committed by the COMELEC en banc in reversing the findings of the COMELEC Second Division. A temporary restraining order was also prayed for to enjoin the effects of private respondent Salalila's proclamation as municipal mayor. On December 15, 1998, this Court issued a Temporary Restraining Order directing the COMELEC to cease and desist from enforcing its Resolution, dated November 19, 1998 in SPC No. 98-056. Meanwhile, on March 1, 1999, petitioner filed a separate petition before this Court to cite private respondent Salalila for contempt. This was docketed as G.R. No. 137470. In this petition, petitioner claimed that despite the issuance of a Temporary Restraining Order by this Court on December 15, 1998 in G.R. No. 136282, private respondent Salalila continued to act as the Mayor of Sta. Rita, Pampanga. Petitioner would like to impress upon this Court that the returns in the subject precincts (25 votes with zero 0 votes in 3 precincts, as against private respondent Salalila's 1,333 votes) were statistically improbable considering that he was a re-electionist and with assigned watchers therein. Although he admits that the precincts were private respondent Salalila's bailiwick, precedence dictates that every election document coming from a candidate's bailiwick must be carefully scrutinized. Petitioner claims that the election returns did not contain data as required in Section 212 of the Omnibus Election Code which reads: The returns shall also show the date of the election, the polling place, the barangay and the city or municipality in which it was held, the total number of ballots found in the compartment for valid ballots, the total number of valid ballots withdrawn from the compartment for spoiled ballots because they were erroneously placed therein, the total number of excess ballots, the total number of marked or void ballots, and the total number of votes obtained by each candidate, writing out the said number in words and figures and, at the end thereof, the board of election inspectors shall certify that the contents are correct. The returns shall be accomplished in a single sheet of paper, but if this is not possible, additional sheets may be used which shall be prepared in the same manner as the first sheet and likewise certified by the board of election inspectors. xxx xxx xxx
Petitioner further contends that these data on voters and ballots are just as important as the data on votes credited to the candidate on the same election returns. The absence such data without any explanation or correction on the part of the Board of Election Inspectors who prepared those election documents renders them invalid. Violations of Sections 234 and 235 relating to material defects in the election returns and tampered or falsified election returns are considered election offenses under Section 262 of the Omnibus Election 9 Code. The pertinent provisions read as follows: Sec. 234. Material defects in the election returns. If it should clearly appear that some requisites in form or data had been omitted in the election returns, the board of canvassers shall call for all the members of the board of election inspectors concerned by the most expeditious means, for the same board to effect the correction. Provided, That in case of the omission in the election returns of the name of any candidate and/or his corresponding votes, the board of canvassers shall require the board of election inspectors concerned to complete the necessary data in the election returns and affix therein their initials: Provided, further, That if the votes omitted in the returns cannot be ascertained by other means except by recounting the ballots, the Commission, after satisfying itself that the identity and integrity of the ballot box have not been violated, shall order the board of election inspectors to open the ballot box, and, also after satisfying itself that the integrity of the ballots therein has been duly preserved, order the board of election inspectors to count the votes for the candidate whose votes have been omitted with notice thereof to all candidates for the position involved and thereafter complete the returns. 275 Election Laws Election Process and/or Proceedings
The right of a candidate to avail of this provision shall not be lost or affected by the fact that an election protest is subsequently filed by any of the candidates. Sec. 235. When election returns appear to be tampered with or falsified. If the election returns submitted to the board of canvassers appear to be tampered with, altered or falsified after they have left the hands of the board of election inspectors, or otherwise not authentic, or were prepared by the board of election inspectors, the board of canvassers shall use the other copies of said election returns and, if necessary, the copy inside the ballot box which upon previous authority given by the Commission may be retrieved in accordance with Section 220 hereof. If the other copies of the returns are likewise tampered with, altered, falsified, not authentic, prepared under duress, force, intimidation, or prepared by persons other than the members of the board of election inspectors, the board of canvassers or any candidate affected shall bring the matter to the attention of the Commission. The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass. (Sec. 173, 1978 EC). The petition must fail. It must be borne in mind that we are persuaded strongly by the principle that the findings of facts of administrative bodies charged with their specific field of expertise, are afforded great weight by the courts, and in the absence of substantial showing that such findings are made from an erroneous estimation of the evidence presented, they are conclusive, and in the interest of stability of the governmental 10 structure, should not be disturbed. The COMELEC, as an administrative agency and a specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, 11 and recall, has more than enough expertise in its field that its findings or conclusions are generally respected and even given finality. We do not find the instant case an exception to this avowed rule. In order to allay any suspicion of gravely abusing its discretion, the COMELEC made a careful examination of the contested election returns. "To check and double check" if it were true that the contested election returns were tampered with, altered or falsified, the COMELEC en banc examined two separate copies of the election returns: (1) the copy for the Municipal Board of Canvassers and (2) the COMELEC copy. Thus, the following findings were made: In the election returns for precinct 88-A-1, only formal defects are present, there being no entries on the requisite data as to the number of registered voters in the precinct, the actual number of votes cast and the number of valid votes cast. However, the number of votes credited to the petitioner and private respondent and the taras therein do not contain any erasure or alteration as to bring the number of votes obtained by the petitioner and private respondent within the realm of controversy. We, therefore, rule for the inclusion of the election returns for this precinct. The election returns for precinct 89-A-1 was ruled excluded by the Second Division for several reasons. It was alleged (1) that there is a discrepancy in the total number of valid votes cast and number of votes received by private respondent Salalila; (2) that two (2) members of the Board of election Inspectors did not affix their thumb mark in the questioned election returns; and (3) that the election returns states that there were 197 voters who actually voted while there were 22 excess ballots which means that the number of voters who actually voted will be 219 in excess of the 215 total number of registered voters in the precinct. An examination of this election returns shows that all pages of the election returns have been signed and thumb marked by the chairman and members of the board of election inspectors except on page 3 where the members did not thumb mark but the chairman did and on page 4 where the chairman had no thumb mark but the members did have. This is a mere oversight and it did not vitiate the validity of the votes credited to each candidate nor did it destroy the integrity of the election return. A perusal of the election returns for the mayoral candidates shows that Salalila got one hundred four (104) votes while petitioner/appellant Ocampo received zero (0). The fact that private respondent/appellee got almost all the votes cast in this precinct is not necessarily proof of fraud for there is nothing in the returns to show that it was tampered or altered. The election returns itself reflects with clarity the votes obtained by Salalila and Ocampo. It bears no sign whatsoever of tampering or alteration. Moreover, contrary to the findings of the Second Division, the election returns for this precinct did not state that there were 197 voters who actually voted and that there were 22 excess ballots but rather, the number of voters who actually voted is only 105 out of 115 total registered voters in this precinct and the excess ballots is zero. We, therefore, rule for the inclusion in the canvass of the election returns for this precinct. In the election returns for precinct 92-A, it was ruled excluded on the ground that one (1) vote is missing therein, 153 voters having actually voted and private respondent Salalila received 152 votes while petitioner got zero (0). We overrule. The fact that Salalila got one hundred fifty two (152) votes out of 153 voters who actually voted while Ocampo got zero (0), does not necessarily mean that one (1) vote is missing. One (1) voter in this precinct might have desisted from casting his vote for the mayor or may have voted but the vote was not credited because it was stray or just illegible. But the missing vote cannot be a ground for exclusion. Hence, We rule for the inclusion of the election returns in the canvass. In the election returns for clustered precincts 93-A and 94-A, an examination of the returns shows that it is complete with entries of the requisite data and that it had been signed by all the members of the board of election inspectors. It also 276 Election Laws Election Process and/or Proceedings
discloses that it is not true there was one hundred percent (100%) turn-out of voters for this clustered precincts as there were only two hundred forty five (245) voters who actually voted out of the two hundred seventy two (272) registered voters. Hence, there is nothing mysterious about the 27 excess but unused ballots found in the ballot box. Similarly, we saw no erasures or alteration on the face of the election returns, specifically the portion showing the number of votes. If at all, there were superimposition made on the faintly written names of the candidates to make the same easily readable. Such superimposition on the names of candidates did not in any manner render the number of votes garnered by the candidates subject to doubt as to bring the same within the realm of controversy. Moreover, We find intriguing the finding that chairman of the board of election inspectors claimed that private respondent received 96 votes instead of 97 while petitioner received 4 votes yet the election returns states that petitioner received only three votes instead of four. We find nothing in the records to support it. The election returns itself shows that Salalila obtained two hundr4ed thirty six (236) votes while Ocampo got seven (7) votes. We, therefore, rule for the inclusion in the canvass of said election returns. In the election returns for clustered precincts 99-A and 100-A, and precinct 104-A, only formal defects are present, there being no entries of the requisite data as to the number of registered voters in the precincts, the actual number of votes cast, and the number of valid votes cast. However, the number of votes credited to the petitioner/appellant and respondent/appellee as reflected by the taras show correctness of count. There were no erasures or alteration as to put the same into question. We, therefore, likewise rule for the inclusion in the canvass of this election returns. In the election returns for precinct 105-A, it was ruled excluded because of alleged discrepancies in the material data in that the total number of registered voters in the precinct is 141 while the total number of the voters who actually voted is 121 but found out inside the ballot box were 144 valid ballots which is excess of three (3) from the total number of registered voters for the precinct. The three (3) "excess" ballots are in reality not excess ballots. The precinct ratio on ballot distribution adopted by the Commission in the 11 May 1998 elections is one (1) ballot for every registered voter plus four (4) ballots. At any rate, an examination of the questioned election returns shows that the defects are only formal and not material as to warrant the outright exclusion from canvass of the questioned election returns. The number of votes credited to petitioner/appellant who got three (3) votes and private respondent/appellee who received one hundred fifteen (15) votes was undisturbed and does not bear any sign of alteration as to put the result of the election into question. We, therefore, likewise rule for the inclusion in 12 the canvass of the election returns for this precinct. Notably, the COMELEC en banc merely sustained the findings and rulings of the Municipal Board of Canvassers who, at the first instance, found the contested election returns to be genuine and authentic and the objections to be without merit. Moreover, the 13 COMELEC en banc did not meet any opposition or dissent from any of the Commissioners who have rendered the resolution reversing the decision of the MBC. This only goes to show that there was a painstaking review and examination of the returns by the COMELEC en banc which does not warrant a different conclusion from this Court. That the election returns were obviously manufactured must be evident from the face of said documents. In the absence of a strong evidence establishing spuriousness of the returns, the basic rule that the election returns shall be accorded prima facie status as bona 15 fide reports of the results of the count of the votes for canvassing and proclamation purposes must perforce prevail. The COMELEC en banc did not find any signs of alterations or tampering on the election returns nor did the petitioner present any hard evidence of such irregularity. The only thing which we surmise came too close to such a change was the written superimposition made on the family names of the candidates in the election returns of the clustered precincts 93-A and 94-A. This was certainly not an alteration or tampering since the COMELEC en banc found that such superimposition was necessarily done in order to make the names readable. Nonetheless, petitioner failed to deduce evidence to the contrary. The other thing which petitioner considered the returns to be "obviously manufactured" was the fact that petitioner garnered zero (0) votes in three (3) precincts which was allegedly statistically 16 improbable. To this claim, the case of Sanki v. COMELEC is worth reiterating: . . . Indeed, the bare fact that candidates for public office had received zero votes is not enough to make the returns statistically improbable. In the Lagumbay decision itself, Chief Justice Cesar Bengzon, who delivered the majority opinion, did not say that when one candidate receives nothing in an election return, such a circumstance alone will make said return statistically improbable. . . . xxx xxx xxx
14
. . . we can not, with certainty, conclude from the facts before us that the returns questioned were "not true returns of legal votes actually cast, but simply manufactured evidences of an attempt to defeat the popular will. To be sure, it cannot be said here as this Court did intimate in Lagumbay that respondent board of canvassers may legally deny "prima facie recognition to such returns on the ground that they are manifestly fabricated or falsified;" or that "the fraud is so palpable from the return itself (res ipsa loquitur the thing speaks for itself)", such that "there is no reason to accept and give it prima facie value. The factual background of this case suggests that we should not unduly expand the reach of the statistically improbable doctrine carved out of the facts obtaining in Lagumbay. Rather, we should say that respondent board of canvassers 277 Election Laws Election Process and/or Proceedings
sustained by Comelec in refusing to reject canvass of the returns from the disputed precincts, properly performed the functions allocated to it by law. It did well in not overstepping its authority. . . . Anent the objection as to the omitted data in the election returns, a close reading of Section 234 of the Omnibus Election Code shows that nothing in said provision provides for the exclusion of the election returns. Moreover, such omitted data are merely formal defects and not so material as to affect the votes the candidates obtained in the 17 election. We find the case of Baterina vs. Commission on Elections similar to the case at bar, where the Court elucidated that: [T]he grounds raised by petitioners for the exclusion of the election returns from the canvassing, as stated in their "Appeal Memorandum" before the COMELEC (Rollo, p. 92), refer to the failure to close the entries with the signatures of the election inspectors; lack of inner and outer paper seals, canvassing by the BOARD of copies not intended for it; lack of time and date of receipt by the BOARD of election returns; lack of signatures of petitioners' watchers; and lack of authority of the person receiving the election returns. While the aforesaid grounds may, indeed, involve a violation of the rules governing the preparation and delivery of election returns for canvassing, they do not necessarily affect the authenticity and genuineness of the subject election returns as to warrant their exclusion from the canvassing. The grounds for objection to the election returns made by petitioner are clearly defects in form insufficient to support a conclusion that the election returns were tampered with or spurious. "A conclusion that an election return is obviously manufactured or false and consequently should be disregarded in the canvass must be approached with extreme caution and only upon the most convincing proof. . . . For as long as the election returns which on their face appear regular and wanting of any physical signs of tampering, alteration or other similar vice, such election returns cannot just be unjustifiably excluded. To look beyond or behind these returns is not a proper issue in 18 a pre-proclamation controversy as in the case at bar. WHEREFORE, the petition for certiorari in G.R. No. 136282 is hereby DISMISSED for its failure to show grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Commission on Elections (COMELEC) in rendering the assailed Resolution, dated November 19, 1998. G.R. No. 133470 is, likewise, DISMISSED. The Temporary Restraining Order issued on December 15, 1998 is hereby LIFTED.1wphi1.nt SO ORDERED.
278
Republic of the Philipppines SUPREME COURT Manila EN BANC [G.R. Nos. 154442-47. December 10, 2003] SALIPONGAN L. DAGLOC, Petitioner, vs. COMMISSION ON ELECTIONS, BAI SUSAN A. SAMAD and KENNEDY P. DILANGALEN, Respondents. DECISION AZCUNA, J.:chanroblesvirtuallawlibrary This is a petition for certiorari and prohibition with a prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order, under Rule 65 of the Rules of Court, seeking the nullification of the resolution[1] dated July 18, 2002 of the Commission on Elections (COMELEC) en banc. Petitioner primarily contends that the COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in ordering the exclusion from canvass of the election returns from nine precincts in the Municipality of Kabuntalan, Province of Maguindanao, in connection with the May 14, 2001 elections. The Antecedentschanroblesvirtuallawlibrary During the May 14, 2001 elections, Bai Susan A. Samad (Samad), Salipongan I. Dagloc (Dagloc) and Kennedy Dilangalen (Dilangalen) were among the mayoralty candidates in the Municipality of Kabuntalan, Province of Maguindanao.[2]chanroblesvirtuallawlibrary During the canvassing of the election returns for the Municipality of Kabuntalan, Samad, Dagloc and Dilangalen filed their respective objections and oppositions to the inclusion or exclusion from the canvass of certain election returns from several precincts.[3]chanroblesvirtuallawlibrary Samad contested the inclusion of the election returns from Precinct Nos. 31A, 31B, 32A/32B, 33A and 33B, all of Brgy. Bagumbayan, on the grounds that: (a) the returns were tampered and falsified, and (b) the returns were prepared under duress, threats, coercion and intimidation.[4]chanroblesvirtuallawlibrary In its rulings dated May 23 and May 26, 2001, the Municipal Board of Canvassers of Kabuntalan (the Board) dismissed Samads petitions to exclude the said election returns because she failed to submit evidence within twenty-four (24) hours from the time of her objection. On June 1 and 5, 2001, Samad appealed from said rulings of the Board before the COMELEC, and her appeal was docketed as SPC 01-341 and SPC 01-342, respectively. [5]chanroblesvirtuallawlibrary On the other hand, Dagloc questioned the inclusion of the election returns from Precinct Nos. 78A/79A, 80A/81A and 82A on the ground that the returns were manufactured or spurious because the counting of the votes and the preparation of the said election returns were conducted in a privately-owned house which was under the control of a barangay chairman, who was an alleged ally and political supporter of Samad. Dagloc also opposed the exclusion of the election returns from Precinct Nos. 58A/59A, 70A, 71A, 83A and 84A[6] on the ground that said returns appeared regular on their face and the alleged irregularities were done during the voting. Dagloc further stated that the COMELEC authorized the voting in Precinct Nos. 78A/79A, 80A/81A, 82A, 58A/59A, 70A, 71A, 83A and 84A to th be conducted in the gymnasium of the 6 Infantry Division, Philippine Army, Awang, Datu Odin Sinsuat, Maguindanao.[7]chanroblesvirtuallawlibrary The Board, in resolving the objections and oppositions filed by Dagloc, ruled to include in the canvassing the election returns from Precinct Nos. 78A/79A, 80A/81A and 82A, and granted Samads petitions to exclude the returns from Precinct Nos. 58A/59A, 70A, 71A, 83A and 84A. On June 7, 2001, Dagloc appealed from the said rulings of the Board with the COMELEC, and his appeal was docketed as SPC 01-282.[8] chanroblesvirtuallawlibrary Dilangalen also filed several petitions to exclude from the canvassing the election returns from Precinct Nos. 1A, 1B, 2A, 2B/3B, 3A, 5A/6A, 17A, 31A, 31B, 32A/32B, 33A/33B, 34A/35A, 36A/37A, 38A, 45B/46A, 70A, 71A, 78A/79B, 80A/81A and 82A based on any of the following grounds:chanroblesvirtuallawlibrary (a) The returns were prepared under duress, threats and intimidation;chanroblesvirtuallawlibrary (b) The returns were manufactured and falsified and they contained erasures, mistakes, manifest errors and superimpositions in figures and in words;chanroblesvirtuallawlibrary 279 Election Laws Election Process and/or Proceedings
(c) The election returns lacked material data;chanroblesvirtuallawlibrary (d) Terrorism and election irregularities transpired during the casting of votes; andchanroblesvirtuallawlibrary (e) Statistical improbability of the results of the elections.[9]chanroblesvirtuallawlibrary Dilangalen alleged that the Board dismissed his petitions and included the contested returns in the canvassing. Hence, on June 12, 2001, he filed a pre-proclamation case before the COMELEC, docketed as SPC No. 01-285.[10] chanroblesvirtuallawlibrary On June 13, 2001, Dagloc filed a Petition to Annul Falsified Proclamation and to Suspend the Effects of Falsified Proclamation, docketed as SPC 01-291. Dagloc alleged that on June 7, 2001, while the tabulation of the election returns was still in progress, the Board, consisting of Chairman Dionisio Linaban and Member-Secretary Andaman Samud proclaimed Bai Susan A. Samad as mayor, Datu Nasser H. Ali as vice-mayor, and Monambai (sic) Diocalano, Brahim Mokamad, H. Sittie Tula, Lincoln Radzak, Zainadun Kabulan, H. Faisal Pendi, Almada Pidzakal and H. Rouf Adbulrakman as members of the Sangguniang Bayan (Samad, et al.).[11] chanroblesvirtuallawlibrary Further, Dagloc maintained that the Certificate of Canvass and Proclamation of Winning Candidates for Municipal Offices (CEF No. 25) with Serial No. 8692104, used by the Board, was not valid because: (1) the signature of Samud was allegedly obtained by force by two men who blocked his way on June 6, 2001 at around 10:10 p.m.; and (2) Linaban was absent during the purported proclamation. Dagloc thus prayed for the annulment of the proclamation of Samad, et al.[12]chanroblesvirtuallawlibrary On June 18, 2001, Samad, et al. filed a petition before the COMELEC, docketed as SPC 01-310, alleging that on June 8, 2001, members of the Board, namely, Vice-Chairman Usman D. Zailon and Member-Secretary Andaman K. Samud proclaimed Datu Salipongan L. Dagloc as mayor, Datu Mohidin S. Lauban as vice-mayor, and Amnambai Diocolano, H. Sittie Tula, Fhamie Dumaba, H. Brahim Mokamad and Lincoln M. Radzak as members of the Sangguniang Bayan (Dagloc, et al.). Said proclamation was evidenced by CEF No. 25 with Serial No. 8692109. Samad, et al. contended that the second proclamation was a nullity based on the following grounds:chanroblesvirtuallawlibrary (a) The second proclamation was made without notice and hearing;chanroblesvirtuallawlibrary (b) The second proclamation cannot annul the first proclamation;chanroblesvirtuallawlibrary (c) The signature of Andamen K. Samud in the second proclamation was obtained through intimidation by the armed men of Dagloc; andchanroblesvirtuallawlibrary (d) The second proclamation is void proclaimed.[13]chanroblesvirtuallawlibrary aforementioned six for there were only five (5) councilors who were
The COMELEC consolidated the Dilangalen.chanroblesvirtuallawlibrary
cases
filed
by
Dagloc,
Samad,
Samad,
et
al.,
and
In its resolution dated May 29, 2002, the COMELEC, Second Division (Second Division), clarified that the contested returns refer to the election returns from Precinct Nos. 1A, 1B, 2A, 2B/3B, 3A, 5A/6A, 17A, 31A, 31B, 32A/32B, 33A/33B, 34A/35A, 36A/37A, 38A, e45A/46B, 45B/46A, 58A/59A, 70A, 71A, 72A, 78A/79B, 80A/81A, 82A, 83A and 84A.[14]chanroblesvirtuallawlibrary The Second Division found that some of the grounds relied upon by the petitioners, i.e, tampered, falsified, manufactured or spurious returns, returns prepared under duress, threats, coercion, etc., were proper issues for a pre-proclamation controversy under subsections (b) and (c) of Section 243[15] of the Omnibus Election Code. The Second Division, however, stated that objections to the inclusion of the election returns should not be immediately accorded weight absent any showing that on the face thereof, there are patent irregularities. It took into consideration the doctrine that as long as the returns appear to be authentic and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting or counting of votes.[16]chanroblesvirtuallawlibrary The Second Division noted that based on the written rulings of the Linaban Board, the election returns from Precinct Nos. 31A, 31B, 32A/32B and 33A/33B and 45A (should have been Precinct Nos. 70A, 71A, 83A and 84A) were excluded because of alleged election irregularities perpetrated by some members of the Board of Election Inspectors (BEI) and the disqualification of some members thereof as evidenced by purported affidavits executed by Usman.[17]chanroblesvirtuallawlibrary The Second Division, however, resolved to include the returns from Precinct Nos. 31A, 31B, 32A/32B and 33A/33B (should have been Precinct Nos. 70A, 71A, 83A and 84A) in the canvass on the following grounds:chanroblesvirtuallawlibrary 280 Election Laws Election Process and/or Proceedings
a) The contested election returns contained no sign of any tampering or alteration, affecting the standing of the candidates; they are prima facie regular on their face; chanroblesvirtuallawlibrary b) The alleged irregularities occurred in the BEI level. Pre-proclamation controversies are limited to challenges directed against the Board of Canvassers and the proceedings thereof and not challenges with respect to proceedings before the Board of Election Inspectors or its composition.chanroblesvirtuallawlibrary c) The grounds raised compel the COMELEC to pierce the veil of election returns, which, as adverted to, are not proper issues for pre-proclamation controversies. A party seeking to raise issues the resolution of which would necessitate the COMELEC to pierce the veil of election returns that are prima facie regular on their face has his proper remedy in an election protest case.[18]chanroblesvirtuallawlibrary With respect to the other grounds raised to support the exclusion of the contested returns, the Second Division made the following findings:chanroblesvirtuallawlibrary 1. Election returns from Precinct Nos. 31A, 32A/32B, 36A/37A, 45A/46B, 70A, 80A/81A and 82A There is no entry on the space provided for Data on Voters and Ballots. Such omission, however, does not invalidate the election returns. The defect does not, in any way, affect the results of the elections.chanroblesvirtuallawlibrary 2. Election Returns from Precinct Nos. 5A/6A, 38A and 71AThere were erasures in the votes of some candidates in figures and in words. Nevertheless, the said election returns must be included applying the aforecited Section 30 of COMELEC Resolution 3848.chanroblesvirtuallawlibrary 3. Election Returns from Precinct Nos. 2B/3B, 31B, 34A/35A, 45B/46A, 78A/79A and 83A -- There are superimpositions or erasures but they were countersigned and were just obviously made to correct clerical errors.chanroblesvirtuallawlibrary We also resolve to include election returns from Precinct Nos. 1A/1B, 2A, 3A, 17A, 58A/59A, 72A and 84A on the ground that they are perfectly regular on their face.[19]chanroblesvirtuallawlibrary Moreover, the Second Division declared the first proclamation of Samad, et al. and the subsequent proclamation of Dagloc, et al. to be illegal. chanroblesvirtuallawlibrary The COMELEC, Second Division, pronounced judgment, thus:chanroblesvirtuallawlibrary WHEREFORE, in view of the foregoing, the COMMISSION RESOLVE, as it hereby RESOLVES, to INVALIDATE (1) the Certificate of Canvass and Proclamation of Winning Candidates for Local Positions (CEF No. 25) with Serial No. 8692104 certifying to the proclamation of Samad, et al. and (2) the Certificate of Canvass and Proclamation of Winning Candidates for Local Positions (CEF NO. 25) with Serial No. 8692109 certifying to the proclamation of Dagloc, et al.chanroblesvirtuallawlibrary ACCORDINGLY, We:chanroblesvirtuallawlibrary (1) ORDER the CONSTITUTION of a SPECIAL BOARD OF CANVASSERS composed of COMELEC lawyers to be appointed by the Commission;chanroblesvirtuallawlibrary (2) DIRECT THE Municipal Board of Canvassers of Kabuntalan to DELIVER to Election Records and Statistics Department (ERSD), COMELEC, Manila, all the election returns from Precinct Nos. 17A, 45B/46A, 58A/59A, 70A, 71A, 72A, 78A/79A, 80A/81A, 82A, 83A, 84A, 45A/46B, 31A, 31B, 32A/32B and 33A/33B, as well as the election records and documents pertaining to these cases; andchanroblesvirtuallawlibrary (3) ORDER the Special Board of Canvassers to:chanroblesvirtuallawlibrary (i) immediately RECONVENE upon receipt of said election returns and after serving proper notice to all the parties concerned;chanroblesvirtuallawlibrary (ii) COMPLETE the CANVASS by including the results in Precinct Nos. 17A, 45B/46A, 58A/59A, 70A, 71A, 72A, 78A/79A, 80A/81A, 82A, 83A, 84A, 45A/46B, 31A, 31B, 32A/32B and 33A/33B; andchanroblesvirtuallawlibrary (iii) Thereafter, PROCLAIM the winning candidates for the position of MAYOR, VICE-MAYOR and MEMBERS OF THE SANGGUNIANG BAYAN of the Municipality of Kabuntalan, Maguindanao.chanroblesvirtuallawlibrary 281 Election Laws Election Process and/or Proceedings
The Provincial Election Supervisor of Maguindanao and the Election Officer of Kabuntalan are hereby DIRECTED to COORDINATE with the local police or members of the Armed forces of the Philippines to ensure that the integrity of the ballot boxes containing the contested election returns and other election records is not violated.chanroblesvirtuallawlibrary The Urgent Motion for Handwriting Examination filed by petitioner DAGLOC is hereby DENIED.chanroblesvirtuallawlibrary The Law Department is hereby directed to immediately INVESTIGATE EO DIONISIO LINABANs questionable act of leaving the canvassing venue without notice and authority from this Commission during the canvassing on June 7-8, 2001 and to PROSECUTE him upon finding of probable cause.chanroblesvirtuallawlibrary Let a copy of this resolution be furnished to the Department of Interior and Local Government (DILG) for implementation and for appropriate action.chanroblesvirtuallawlibrary SO ORDERED.[20]chanroblesvirtuallawlibrary Presiding Commissioner Ralph C. Lantion dissented[21] from the resolution of the Second Division and voted to exclude from the canvass the election returns from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A and 84A.chanroblesvirtuallawlibrary On June 3, 2002, Samad seasonably filed a motion for reconsideration of the resolution of the COMELEC, Second Division, relying mainly on the dissenting opinion of Commissioner Lantion. It appears that Dilangalen filed, out of time,[22] his motion for reconsideration on July 2, 2002. chanroblesvirtuallawlibrary On July 18, 2002, the COMELEC en banc resolved Samads motion for reconsideration. The COMELEC en banc agreed with the resolution of the Second Division that the consolidated cases were pre-proclamation controversies since some of the grounds (i.e., tampered, falsified, manufactured or spurious returns, returns prepared under duress, threats, coercion, etc.) were proper issues for a pre-proclamation controversy under subsections (b) and (c) of Section 243[23] of the Omnibus Election Code. It ruled that the Second Division correctly annulled the proclamation of Samad and Dagloc as the duly elected mayor of the Municipality of Kabuntalan, Maguindanao pursuant to Section 20 (i)[24] of Republic Act No. 7166.[25]chanroblesvirtuallawlibrary The COMELEC en banc held that the only issue to be resolved was the propriety of the inclusion or exclusion of the contested returns, taking into account the contradicting conclusions of the two members of the Second Division and its Presiding Commissioner. It noted that if all the election returns were canvassed, Dagloc would win by a plurality of votes. But if the election returns from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A and 84A were excluded from the canvass, as ruled in the dissenting opinion, Samad would win.[26] chanroblesvirtuallawlibrary The COMELEC en banc held that after a careful study of the evidence on record, it found that only the election returns from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A and 84A remain to be proper subjects for review as the grounds relied upon to exclude the other contested returns were appropriate in a regular election protest.[27]chanroblesvirtuallawlibrary The COMELEC en banc sustained the findings in the dissenting opinion of the Presiding Commissioner of the Second Division, and excluded from the canvass the election returns from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A and 84A (hereinafter, the nine election returns). The COMELEC en banc anchored the exclusion of the nine election returns on the manner of their preparation, which it found to be sham. The COMELEC en banc held that the votes reported in the nine election returns do not reflect the true will of the electorate. It added that this conclusion was strengthened by the fact that in the supposed affidavit of the BEI members of Kabuntalan, Maguindanao, which was attached by Dagloc in his appeal in SPC 01-282 to prove the regularity of the exercise of the BEIs assigned task, only one member of the BEI from Precinct No. 70A, Sandatu Kamson, signed said affidavit, while no member of the BEI from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 71A, 72A, 83A and 84A signed it.[28] chanroblesvirtuallawlibrary The COMELEC en banc pronounced judgment, thus:chanroblesvirtuallawlibrary WHEREFORE, the proclamation of both Datu Salipongan Dagloc and Bai Susan Samad as municipal mayor of Kabuntalan, Maguindanao is hereby ANNULLED. Furthermore, a New Municipal Board of Canvassers is hereby constituted, to be composed of Comelec lawyers, mandated to canvass the valid election returns in Kabuntalan, Maguindanao, taking into consideration the above observations in Election Returns No. 69090014, 69090021, 69090036, 69090044, 69090045, 69090046, 69090056, 69090061, 69090062, 69090067, and 69090069, from Precinct Nos. 17A, 25A/26A, 45A, 56A/57A, 58A/59A, 60A, 73A/74A, 80A/81A, 82A, 89A, and 91A, respectively, in the proper appreciation of votes of the contending mayoralty candidates, and EXCLUDING therefrom the election returns from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A, and 84A, in accordance with the foregoing disquisition, and on the basis thereof proclaim the winning local candidates in the May 14, 2001 National and Local Elections.chanroblesvirtuallawlibrary
282
Furthermore, the Law Department is hereby directed to investigate, and if necessary, prosecute upon finding of probable cause: (1) the Chairman, Vice-Chairman, and Member-Secretary of the Municipal Board of Canvassers of Kabuntalan, Maguindanao for apparently being partisan by favoring certain local candidates; and (2) the members of the BEIs in Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A, and 84A, namely:chanroblesvirtuallawlibrary xxx xxx xxxchanroblesvirtuallawlibrary SO ORDERED.[29]chanroblesvirtuallawlibrary On August 15, 2002, Dagloc filed this instant petition for certiorari, raising the following issues:chanroblesvirtuallawlibrary 1. The respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the questioned PER CURIAM Resolution ordering the EXCLUSION of the nine (9) election returns based on objections which are not proper for pre-proclamation controversies. chanroblesvirtuallawlibrary 2. The respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the questioned PER CURIAM Resolution ordering the EXCLUSION of the nine (9) election returns without clear and convincing evidence of fraud and other election irregularities.chanroblesvirtuallawlibrary 3. The respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in not dismissing SPC No. 01-342 for failure to comply with the mandatory procedure provided in Section 20 of RA 7166 and Section 38 of Comelec Resolution No. 3848.[30] chanroblesvirtuallawlibrary On August 26, 2002, petitioner filed a Most Urgent Motion and Plea Reiterating the Previous Prayer for the Issuance of a Temporary Restraining Order,[31] which was denied by the Court for lack of merit.[32]chanroblesvirtuallawlibrary On September 3, 2002, the Municipal Board of Canvassers of Kabuntalan proclaimed Bai Susan A. Samad as the duly elected mayor of the Municipality of Kabuntalan,[33] having obtained the highest number of votes. On the same date, Samad took her oath of office,[34] and thereafter assumed office.[35]chanroblesvirtuallawlibrary On September 16, 2002, respondent Dilangalen filed a Motion to Issue a Status Quo Order as of the Filing of the Petition and/or Motion for the Issuance of a Temporary Restraining Order Enjoining the Respondent Samad from Assuming and/or Performing the Functions of Mayor[36], which was also denied by the Court for lack of merit.[37] chanroblesvirtuallawlibrary On September 16, 2002, Mohidin S. Lauban, a party mate of petitioner Dagloc and a candidate for vice-mayor in the May 14, 2001 elections in the Municipality of Kabuntalan, Maguindanao, filed a motion for leave to intervene and a petition-in-intervention. Lauban alleged that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction for: (1) failing to notify him about the proceedings in the consolidated cases including SPC No. 01-310, and thereafter annulling his proclamation in violation of his right to due process; and (2) ordering the exclusion of the nine election returns grounded on objections which were improper for a preproclamation controversy. chanroblesvirtuallawlibrary On October 1, 2002, the Court resolved to grant Laubans motion and required respondents to comment on Laubans petition-inintervention.[38] chanroblesvirtuallawlibrary Finally, in her Comment[39] to Daglocs petition for certiorari, respondent Samad averred that on September 13, 2002, Dagloc filed an Election Protest Ad Cautelam before the Regional Trial Court of Cotabato City, which is still pending with the said court. The Courts Ruling First Issue: The existence of grounds for a pre-proclamation controversychanroblesvirtuallawlibrary Petitioner avers that the COMELEC en banc excluded the election returns from Precinct Nos. 70A, 71A, 83A and 84A for being spurious due to the following reasons (as quoted from the dissenting opinion of Commissioner Lantion): (1) the alleged disqualification of some members of the BEI in said precincts; and (2) the Board found that the same members of the BEI were the ones who committed illegal acts, such that the votes reported in the subject returns do not reflect the true will of the electorate.chanroblesvirtuallawlibrary Petitioner states that the COMELEC also excluded the election returns from Precinct Nos. 31A, 31B, 32A/32B and 33A/33B for the same reasons advanced in excluding the election returns from Precinct Nos. 70A, 71A, 72A, 83A and 84A. According to petitioner, the COMELEC made said conclusion by relying solely on the averments of respondent Samad in SPC No. 01-341 and SPC No. 01-3342, thus:chanroblesvirtuallawlibrary 283 Election Laws Election Process and/or Proceedings
In SPC No. 01-341 and SPC No. 01-342, Bai Susan Samad questions the inclusion of the election returns in Precincts No. 31A, 31B, 32A/32B, 33A/33B. [She] avers that they are tampered or falsified and prepared under duress, threats, coercion and intimidation. An eyewitness and official watcher in Precinct No. 31A, Deduzman Lakim, stated in his affidavit dated May 19, 2001 that on May 14, 2001, Salipongan Dagloc approached him and said that he (Lakim) will be killed after the election. Consequently, Lakim and his co-watchers, namely: Amera Lakim, Asis Abdulla, and Tuansi Sandiale, who were assigned at Precincts No. 31B, 32A/32B, 33A/33B, respectively, failed to report because they were afraid they will be killed by Dagloc. Lakim narrated that the ballots in said contested precincts were openly tampered and falsified by Daglocs supporters. So that the counting of votes were based on tampered and falsified ballots which, in turn, were the bases reflected on the election return.[40] x x x (Emphasis supplied by petitioner Dagloc.)chanroblesvirtuallawlibrary Petitioner contends that the aforementioned reasons advanced by the COMELEC for the exclusion of the nine election returns are not proper issues in a pre-proclamation controversy. Citing Patoray v. Comelec,[41] petitioner contends that under the Omnibus Election Code, pre-proclamation controversies are limited to: (1) challenges directed against the composition or proceedings of the board of canvassers (not the board of election inspectors), or (2) challenges related to election returns to which a party must have made specific objections. (Emphasis supplied by petitioner Dagloc.) chanroblesvirtuallawlibrary Following the arguments of Commissioner Resurreccion Z. Borra in her Concurring and Dissenting Opinion in the Resolution of the COMELEC en banc, petitioner contends that the Second Division in its Resolution found that the contested returns contained no tampering or alteration affecting the standing of the candidates and that they were prima facie regular on their face; hence, the Second Division included said returns in the canvass. Petitioner asserts that this is in accordance with the Courts ruling in Matalam v. COMELEC, [42] that [i]n the absence of a strong evidence establishing spuriousness of the returns, the basic rule that election returns shall be accorded prima facie status as bona fide reports of the results of the counts of votes for canvassing and proclamation purposes must perforce prevail. Petitioner also cited Loong v. COMELEC,[43] where the Court held:chanroblesvirtuallawlibrary The policy consideration underlying the delimitation of both substantive ground and legal procedure is the policy to determine as quickly as possible the result of the election on the basis of the canvass. x x x The prevailing doctrine in this jurisdiction, therefore, is that as long as the returns appear to be authentic, and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting and counting of the votes.chanroblesvirtuallawlibrary Petitioner thus contends that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in excluding the nine election returns because of alleged disqualification of some members of the BEI and alleged irregularities perpetrated by said members, which are not proper issues in a pre-proclamation controversy.chanroblesvirtuallawlibrary Section 243 of the Omnibus Election Code provides: chanroblesvirtuallawlibrary Sec. 243. Issues that may be raised in pre-proclamation controversy.-- the following shall be proper issues that may be raised in a preproclamation controversy: chanroblesvirtuallawlibrary (a) Illegal composition or proceedings of the board of canvassers;chanroblesvirtuallawlibrary (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;chanroblesvirtuallawlibrary (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; andchanroblesvirtuallawlibrary (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. chanroblesvirtuallawlibrary The enumeration is restrictive and exclusive.[44]chanroblesvirtuallawlibrary Admittedly, the COMELEC en banc ordered the exclusion of the nine election returns from the canvass considering partly the reasons aforecited by petitioner. Petitioner, however, omitted to mention the fact that the COMELEC en banc also gave great weight to the affidavit of the BEI members assigned in Kabuntalan, Maguindanao, which was attached by Dagloc in his appeal in SPC 01-282 to prove the supposed regularity of the exercise of the BEIs assigned task. The COMELEC en banc held: chanroblesvirtuallawlibrary We cannot just close our eyes and include in the canvass the subject returns, notwithstanding the undisputed fact that the votes reported in the election returns from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A, and 84A do not reflect the true will of the electorate. This conclusion is strengthened by the fact that in the supposed affidavit of the BEI members, who were assigned in the different precincts in Kabuntalan, Maguindanao, attached by Dagloc in his appeal in SPC 01-282 to prove the supposed regularity of the exercise of the BEIs assigned task, there were no affiants in Precincts Nos. 83A and 84A; whereas only one member of the BEI 284 Election Laws Election Process and/or Proceedings
in Precinct Nos. 71A and 72A was named, to wit: Rosalinda Kimbuan and 1Lt. Juan Gullem, respectively, but both did not sign said affidavit; and only one member of the BEI in Precinct No. 70A, Sandatu Kamson, signed said affidavit. Moreover, no member of the BEIs in Precinct Nos. 31A, 31B, 32A/32B, and 33A/33B signed said affidavit. Neither [were] their [names] even mentioned in it.[45]chanroblesvirtuallawlibrary All the circumstances, taken as a whole, made the COMELEC en banc conclude that the election returns from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A and 84A were spurious.chanroblesvirtuallawlibrary The case of Patoray v. Comelec, as cited by petitioner, is not in point. To reiterate, in said case, the Court stated that under the Omnibus Election Code, pre-proclamation controversies are limited to: (1) challenges directed against the composition or proceedings of the board of canvassers (not the board of election inspectors), or (2) challenges related to election returns to which a party must have made specific objections. The private respondent therein objected to two returns on the ground that the election returns are manufactured, fabricated or not authentic, considering that the election returns includes votes on ballots which are spurious, marked and invalid ballots. In said case, the Court held that the municipal board of canvassers correctly ruled that private respondents objections were not proper in a proclamation controversy since the objection, as worded, did not challenge the returns, but was directed primarily at the ballots reflected in the returns (emphasis supplied). Hence, the Court ruled, [i]t is settled that issues relative to the appreciation of ballots cannot be raised in a proclamation controversy. Appreciation of ballots is the task of the board of election inspectors, not the board of canvassers, and questions related thereto are proper only in election protests.chanroblesvirtuallawlibrary In this case, what Samad contested was the inclusion of the election returns from Precinct Nos. 31A, 31B, 32A/32B, 33A and 33B on the ground that these were tampered or falsified and were prepared under duress, threats, coercion and intimidation, which are proper issues for a pre-proclamation controversy under paragraphs (b) and (c) of Section 243 of the Omnibus Election Code. The Board dismissed Samads petitions; hence, Samad appealed to the COMELEC. The resolution of the Second Division shows that Samad also sought the exclusion of the election returns from Precinct Nos. 70A, 71A, 83A and 84A, but the ground for her objection does not appear on record. The Board granted the petition of Samad to exclude said returns; hence, Dagloc appealed from the Boards ruling before the COMELEC. Evidently, the pre-proclamation cases filed by Samad fall under the second category adverted to in Patoray v. Comelec, that is, (2) challenges related to election returns to which a party must have made specific objections.chanroblesvirtuallawlibrary Moreover, the COMELEC en bancs findings on the nine election returns are anchored on the manner of their preparation, which it found to be a sham. The COMELEC correctly held that said ground is a pre-proclamation issue, citing Sections 241 and 243 of the Omnibus Election Code, in relation to Section 235 of the same Code, thus:chanroblesvirtuallawlibrary Sec. 241. Definition.-- A pre-proclamation controversy refers to any question pertaining to x x x any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. chanroblesvirtuallawlibrary Sec. 243. Issues that may be raised in pre-proclamation controversy. -- The following shall be proper issues that may be raised in a pre-proclamation controversy:chanroblesvirtuallawlibrary xxx xxx xxxchanroblesvirtuallawlibrary (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.chanroblesvirtuallawlibrary Sec. 235. When election returns appear to be tampered with or falsified.If the election returns submitted to the board of canvassers appear to be x x x x prepared by persons other than the member of the board of election inspectors, the board of canvassers shall use the other copies of said election returns and, if necessary, the copy inside the ballot box which upon previous authority given by the Commission may be retrieved in accordance with Section 220 hereof. If the other copies of the returns are likewise x x x x prepared by persons other than the members of the board of election inspectors, the board of canvassers or any candidate affected shall bring the matter to the attention of the Commission. The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass.chanroblesvirtuallawlibrary Although the COMELEC en banc noted that Deduzman Lakim, an eyewitness and official watcher in Precinct No. 31A, stated in his affidavit that the ballots in Precinct Nos. 31A, 31B, 32A/32B, 33A/33B were openly tampered and falsified by Daglocs supporters, it must be clarified that the appreciation of ballots is not the ground raised by Samad for the exclusion of the nine election returns, and it is also not the basis of the COMELEC en banc for excluding said returns.chanroblesvirtuallawlibrary
285
Further, the aforecited doctrine that as long as the returns appear to be authentic, and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting and counting of the votes, is not applicable in this case due to the following reasons: chanroblesvirtuallawlibrary (1) The COMELEC has the authority to review the rulings of the Board of Canvassers in a pre-proclamation controversy under paragraphs (e) to (f) of section 20 (Procedure in Disposition of Contested election Returns) of Republic Act No. 7166;[46]chanroblesvirtuallawlibrary (2) The COMELEC en banc found that the nine election returns are fraudulent in the manner of their preparation which is a preproclamation issue under Sections 241 and 243 of the Omnibus Election Code;chanroblesvirtuallawlibrary (3) The allegations of irregularity is not in the casting and counting of votes, but in the preparation of the election returns (i.e., the election returns from Precinct Nos. 31A, 31B, 32A/32B, 33A and 33B were tampered or falsified and were prepared under duress, threats, coercion and intimidation).chanroblesvirtuallawlibrary Given the factual finding of the COMELEC en banc that the nine election returns are spurious in the manner of their preparation, doubt is cast on the authentic appearance of said returns. Hence, the subject election returns cannot be accorded prima facie status as genuine reports of the results of the counts of votes. Nevertheless, under Section 235 of the Omnibus Election Code, a recount of votes may be resorted to, if the integrity of the affected ballot boxes and their contents has been preserved. Thereafter, new returns shall be prepared which shall be used by the Board of Canvassers as basis of the canvass. This procedure protects the will of the electorate. Second Issue: Sufficiency of evidence in finding that the nine election returns were spuriouschanroblesvirtuallawlibrary Appellant contends that the COMELEC abused its discretion in finding the nine election returns spurious without clear and convincing evidence of fraud and other election irregularities.chanroblesvirtuallawlibrary The Court is not persuaded.chanroblesvirtuallawlibrary The COMELEC en banc, after a judicious evaluation of the documents on record, upheld the findings stated in the dissenting opinion of Presiding Commissioner Ralph C. Lantion in the Resolution of the Second Division. What exactly these documents and evidence are upon which the COMELEC en banc based its resolution, and how they have been appreciated in respect of their sufficiency, are beyond this Courts scrutiny.[47] The rule that factual findings of administrative bodies will not be disturbed by courts of justice except when there is absolutely no evidence or no substantial evidence in support of such findings should be applied with greater force when it concerns the COMELEC, as the framers of the Constitution intended to place the COMELEC--created and explicitly made independent by the Constitution itselfon a level higher than statutory administrative organs.[48] The factual finding of the COMELEC en banc is therefore binding on the Court. Third Issue: The proper remedy in case of spurious election returnschanroblesvirtuallawlibrary Petitioner contends that even assuming that the subject election returns are spurious, the remedy is not exclusion, but that provided in Section 235 of the Omnibus Election Code, thus:chanroblesvirtuallawlibrary Sec. 235. When election returns appear to be tampered with or falsified.If the election returns submitted to the board of canvassers appear to be tampered with, altered or falsified after they have left the hands of the board of election inspectors, or otherwise not authentic, or were prepared by the board of election inspectors under duress, force, intimidation, or prepared by persons other than the member of the board of election inspectors, the board of canvassers shall use the other copies of said election returns and, if necessary, the copy inside the ballot box which upon previous authority given by the Commission may be retrieved in accordance with Section 220 hereof. If the other copies of the returns are likewise tampered with, altered, falsified, not authentic, prepared under duress, force, intimidation, or prepared by persons other than the members of the board of election inspectors, the board of canvassers or any candidate affected shall bring the matter to the attention of the Commission. The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass. chanroblesvirtuallawlibrary According to petitioner, while it may be true that the board of canvassers will not be compelled to canvass election returns which are falsified or spurious, this does not, however, mean that the board should right away disregard and exclude the election returns and ultimately the votes cast in the precinct. Hence, petitioner contends that the exclusion from canvass of the nine election returns by the COMELEC is a clear exercise of grave abuse of discretion. chanroblesvirtuallawlibrary The contention is meritorious.chanroblesvirtuallawlibrary 286 Election Laws Election Process and/or Proceedings
Outright exclusion of election returns on the ground that they were fraudulently prepared by some members or non-members of the BEI disenfranchises the voters. Hence, when election returns are found to be spurious or falsified, Section 235 of the Omnibus Election Code provides the procedure which enables the COMELEC to ascertain the will of the electorate.chanroblesvirtuallawlibrary The COMELEC, therefore, gravely abused its discretion when it excluded outright the subject election returns after finding that they were fraudulent returns. Instead, the COMELEC should have followed the procedure laid down in Section 235 of the Omnibus Election Code: x x x The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass.chanroblesvirtuallawlibrary Nevertheless, if the integrity of the ballots has been violated, the COMELEC need not recount the ballots but should seal the ballot box and order its safekeeping in accordance with Section 237 of the Omnibus Election Code, thus:chanroblesvirtuallawlibrary Sec. 237. When integrity of ballots is violated.-- If upon the opening of the ballot box as ordered by the Commission under Sections 234, 235 and 236, hereof, it should appear that there are evidence or signs of replacement, tampering or violation of the integrity of the ballots, The Commission shall not recount the ballots but shall forthwith seal the ballot box and order its safekeeping.chanroblesvirtuallawlibrary Therefore, subject to the finding of whether or not the integrity of the affected ballot boxes and of their ballots has been preserved, the new returns from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A and 84A shall be included in the canvass. Consequently, not only the votes of the mayoralty candidates, but also those of the candidates for vice-mayor and members of the Sangguniang Bayan will be recounted and reflected in the new returns as basis of the canvass. On the basis of said canvass, the winning local candidates of the Municipality of Kabuntalan in the May 14, 2001 elections shall be proclaimed. Fourth Issue: Whether SPC No. 01-342 should have been dismissed chanroblesvirtuallawlibrary Petitioner contends that the COMELEC should have dismissed SPC No. 01-342 since Samad failed to comply with the mandatory procedure provided in Section 20 of Republic Act (RA) No. 7166 and Section 38 of Comelec Resolution No. 3848.chanroblesvirtuallawlibrary Section 20 of RA No. 7166 provides:chanroblesvirtuallawlibrary Sec. 20. Procedure in Disposition of Contested Election Returns. (a) Any candidate x x x x contesting the inclusion or exclusion in the canvass of any election returns on any of the grounds authorized under Article XX or Sections 234, 235 and 236 of Article XIX of the Omnibus Election Code shall submit their oral objection to the chairman of the board of canvassers at the time the questioned return is presented for inclusion in the canvass. Such objection shall be recorded in the minutes of the canvass.chanroblesvirtuallawlibrary xxx xxx xxxchanroblesvirtuallawlibrary (c) Simultaneous with the oral objection, the objecting party shall also enter his objection in the form for written objections to be prescribed by the Commission. Within twenty-four (24) hours from and after the presentation of such an objection, the objecting party shall submit the evidence in support of the objection x x x (Emphasis supplied by petitioner Dagloc.)chanroblesvirtuallawlibrary Petitioner claims that Samad failed to submit her evidence in support of her objections within 24 hours from the time such objections were made, which is evidenced by the ruling of the Board issued on May 26, 2001.chanroblesvirtuallawlibrary Further, petitioner asserts that Paragraph 8, Section 38 of Comelec Resolution No. 3848 mandates that [a]ny appeal brought before the Comelec on the ruling of the Board, without the accomplished forms and the evidence thereto, shall be summarily dismissed.chanroblesvirtuallawlibrary Petitioner thus contends that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it did not dismiss SPC No. 01-342 for failure to comply with the mandatory procedure under Section 20 of Republic Act No. 7166 and Section 38 of Comelec Resolution No. 3848.chanroblesvirtuallawlibrary The Court disagrees.chanroblesvirtuallawlibrary Petitioner is referring to Samads appeal before the COMELEC of the Boards ruling to include in the canvass the election returns from Precinct Nos. 31A, 31B, 32A/32B, 33A and 33B. It appears that Samad submitted her evidence belatedly. It may be presumed that 287 Election Laws Election Process and/or Proceedings
when Samad appealed from the Boards ruling before the COMELEC, the Board elevated its report and the complete records and evidence submitted in the canvass in accordance with Section 20, paragraphs (g) and (h) of Republic Act No. 7166, thus:chanroblesvirtuallawlibrary (g) Immediately upon receipt of the notice of appeal, the board shall make an appropriate report to the Commission, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report.chanroblesvirtuallawlibrary (h) On the basis of the records and evidence elevated to it by the board, the Commission shall decide summarily the appeal within seven (7) days from receipt of said records and evidence. Any appeal brought before the Commission on the ruling of the board, without the accomplished forms and the evidence appended thereto, shall be summarily dismissed.chanroblesvirtuallawlibrary In the absence of evidence to the contrary, it is presumed that official duty has been regularly performed. Moreover, in their respective resolutions, the COMELEC en banc and the Second Division evidently decided on the pre-proclamation cases filed before them based on the records and evidence elevated to them by the Board. chanroblesvirtuallawlibrary Further, the COMELEC has broad powers to ascertain the true results of the election by means available to it.[49] It is not strictly bound by procedural rules in the attainment of this end. In fact, the COMELEC Rules of Procedure, wherein the aforecited Section 20 of RA No. 7166 is reiterated,[50] provides that said rules shall be liberally construed in order to promote the effective and efficient implementation of the objectives of ensuring the holding of free, orderly, honest, peaceful and credible elections and to achieve just, expeditious and inexpensive determination and disposition of every action and proceeding brought before the Commission. Fifth Issue: Whether intervenor was denied due processchanroblesvirtuallawlibrary In regard to the petition-in-intervention filed by intervenor Mohidin Lauban, a co-respondent in SPC No. 01-310, it is contended that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction for: (1) failing to notify him about the proceedings in the consolidated cases including SPC No. 01-310, and thereafter annulling his proclamation in violation of his right to due process; and (2) ordering the exclusion of the nine election returns grounded on objections which were improper for a preproclamation controversy.chanroblesvirtuallawlibrary The Court has already ruled on the incorrectness of the order of the COMELEC to exclude outright the nine election returns from the canvass; hence, the remaining issue to be resolved is whether or not the intervenor was denied due process by the COMELEC.chanroblesvirtuallawlibrary Lauban contends that the COMELEC deprived him of his right to notice and hearing in all the proceedings conducted in SPC No. 01310, wherein he was a co-respondent, as he was neither notified nor furnished a copy of the petition. Thereafter, Lauban asserts that the two resolutions of the COMELEC annulled and set aside his proclamation as vice-mayor of the Municipality of Kabuntalan, Maguindanao, despite prior knowledge by both the Second Division and the Commission en banc that he was not duly notified and heard. chanroblesvirtuallawlibrary The contention is without merit.chanroblesvirtuallawlibrary The COMELEC, represented by the Solicitor General, countered that Lauban was not denied due process before the COMELEC. It observed that petitioner Dagloc and Lauban were party mates; the former was a candidate for mayor and the latter for vice-mayor during the May 14, 2001 elections. In SPC No. 01-310, Dagloc and Lauban and their candidates for Sangguniang Bayan were impleaded as respondents and their proclamations were sought to be annulled.chanroblesvirtuallawlibrary According to the COMELEC, Dagloc, Lauban and another private respondent in SPC-310, Fhamie Dumaba, were all represented by Abdul & Maningas Law Offices as shown by the pleading, Answer to Petition.[51] A notice of hearing[52] was sent to Atty. Kamid Abdul as counsel of private respondents. In the minutes of the session held at the COMELEC Session Hall on July 24, 2001 at 2:00 p.m., Atty. Kamid Abdul entered his appearance as counsel for Dagloc, et al.[53] The COMELEC, therefore, correctly stated that Lauban, who was represented by a counsel who filed an answer, was notified of the hearing and had attended the hearing, cannot claim to have been denied due process by the COMELEC.chanroblesvirtuallawlibrary WHEREFORE, the petition-in-intervention is denied for lack of merit, insofar as intervenor Mohidin S. Lauban claims that the COMELEC denied him due process. However, said petition-in-intervention and the petition for certiorari of Salipongan L. Dagloc are given due course insofar as they pray for the inclusion of the nine election returns in the canvass. The COMELEC is directed to determine within twenty (20) days from receipt of this Decision whether the integrity of the ballot boxes and the ballots from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A and 84A has been preserved. If the integrity of the affected ballot boxes and of their ballots is found to be intact, the COMELEC is directed to order the Board of Election Inspectors to recount the votes cast in the precinct involved and to prepare a new return as basis of the canvass. The new return shall be included in the canvass, in th e proper 288 Election Laws Election Process and/or Proceedings
appreciation of the votes of the candidates for mayor, vice-mayor and members of the Sangguniang Bayan of the Municipality of Kabuntalan, Province of Maguindanao, and on the basis of said canvass, the winning local candidates in the May 14, 2001 elections shall be proclaimed. However, if the integrity of any ballot box or of its ballots has been violated, the COMELEC shall not recount the affected ballots, but shall seal the affected ballot box and order its safekeeping.chanroblesvirtuallawlibrary No pronouncement as to costs.chanroblesvirtuallawlibrary SO ORDERED.chanroblesvirtuallawlibrary
289
FEDERICO S. SANDOVAL, petitioner, vs. COMMISSION ON ELECTIONS and CANUTO SENEN A. ORETA, respondents. PUNO, J.: The petition at bar assails the order of the Commission on Elections (COMELEC) en banc dated June 2, 1998 nullifying and setting aside the proclamation of petitioner Federico S. Sandoval as congressman-elect for the Malabon-Navotas legislative district. The facts are as follows: Petitioner Federico S. Sandoval and private respondent Canuto Senen Oreta, together with Pedro Domingo, Mariano Santiago, Symaco Benito and Warren Serna, vied for the congressional seat for the Malabon-Navotas legistative district during the election held on May 11, 1998. On election day, after the votes have been cast and counted in the various precincts in the two municipalities, their respective board of canvassers convened to canvass the election returns forwarded by the board of election inspectors. In Malabon, a reception group and several canvassing committees were formed to expedite the canvass. The reception group received, examined and recorded the sealed envelopes containing the election returns, as well as the ballot boxes coming from the precincts. The reception group then distributed the election returns among the canvassing committees. The committees simultaneously canvassed the election returns assigned to them in the presence of the lawyers and watchers of the candidates. On May 16, 1998, counsels for private respondent made a written request upon Malabon Election Officer Armando Mallorca to furnish 1 them with a complete list of the statement of votes so that they could verify whether all statements of votes have been tabulated. They likewise requested for a complete list of precincts in the municipality together with the number of canvassed votes for petitioner and private respondent as of May 16, 1998. They also sought permission to conduct an audit of the tabulation reports made by the 2 municipal board of canvassers. These requests, however, were denied by the municipal board of canvassers on the following grounds: (1) that any counsel for a candidate has neither personality nor right to conduct an audit of the tabulation report as the proceedings of the board are presumed to be regular, and (2) that the granting of the requests would delay the proceedings of the board to the 3 prejudice of the will of the people of Malabon. On May 17, 1998, the Malabon municipal board of canvassers concluded its proceedings. The board issued a certificate of canvass of votes stating that it canvassed 804 out of 805 precincts in the municipality. The certificate of canvass showed that private respondent 4 obtained the highest number of votes in Malabon with 57,760 votes, with petitioner coming in second with 42,892 votes. On the same day, after obtaining copies of the statements of votes, Ma. Rosario O. Lapuz, authorized representative of private 5 respondent wrote then COMELEC Chairman Bernardo Pardo and informed him that several election returns were not included in the canvass conducted by the Malabon municipal board of canvassers. She moved that the certificate of canvass issued by said board be 6 declared "not final." On May 19, 1998, Ms. Lapuz again wrote Chairman Pardo. The letter reiterated the allegations in her letter dated May 17, 1998 and requested that the Malabon municipal board of canvassers be ordered to canvass the election returns which it allegedly failed to include 7 in its canvass. On May 23, 1998, private respondent filed with the COMELEC an Urgent Petition entitled "In re: Petition to Correct Manifest Error in Tabulation of Election Returns by the Municipal Board of Canvassers of Malabon, NCR. Canuto Tito Oreta vs. Municipal Board of Canvassers of Malabon." The petition was docketed as SPC No. 98-143. It alleged that while the certificate of canvass showed that 804 election returns were canvassed and tabulated, only 790 election returns were actually canvassed. Private respondent contended that there was a manifest error in the non-recording or copying of the results in 14 election returns from 14 precincts into the statement of votes. It prayed: (1) that the municipal board of canvassers of Malabon be reconvened to correct said manifest error by entering the results of the elections in the 14 election returns into the statement of votes and that the certificate of canvass be corrected to reflect the complete results in 804 precincts; and (2) that the canvass of the results for the congressional election by the district board of 8 canvassers for Malabon and Navotas be suspended until the alleged manifest error is corrected. 290 Election Laws Election Process and/or Proceedings
Meanwhile, the proceedings of the municipal board of canvassers of Navotas were disrupted by the riotous exchange of accusations by the supporters of the opposing mayoralty candidates. The COMELEC had to move the venue to the Philippine International Convention Center in Manila to finish the canvass. On May 27, 1998, Chairman Pardo issued a memorandum to Atty. Ma. Anne V.G. Lacuesta, Chairman, District Board of Canvassers for Malabon-Navotas, authorizing her to immediately reconvene the district board of canvassers, complete the canvassing of the municipal certificate of canvass and supporting statement of votes per municipality, and 9 proclaim the winning candidate for the congressional seat of the Malabon-Navotas legislative district. On May 28, 1998, private respondent filed with the COMELEC an Urgent Manifestation/Motion in connection with SPC No. 98-143. It prayed that the canvass of the results of the congressional election by the district board of canvassers be suspended until the alleged 10 manifest error in SPC No. 98-143 is corrected. At 4:15 in the afternoon on May 28, 1998, the district board of canvassers convened at the Philippine International Convention Center. It took up private respondent's petition to correct the manifest error arising from the non-inclusion of 19 election returns in the canvass. After examining the statement of votes by precinct and the certificate of canvass signed and thumbmarked by three watchers from different parties, the district board of canvassers found that a total of 804 election returns were canvassed by the Malabon municipal 11 board of canvassers. The district board of canvassers then proceeded to canvass the certificates of canvass from the two municipalities. Counsel for private respondent requested that the canvassing be suspended until the Commission has resolved their petition for correction of manifest error in the certificate of canvass of Malabon. The district board of canvasser, however, denied the request for the following reasons: 1. absence of restraining order from the Commission; 2. order of the Chairman dated May 27, 1998 directing the district board to proceed with the canvass and proclamation of winning candidates for the district of Malabon-Navotas; 3. there is no irregularity in the submitted certificate of canvass from both municipalities and there were no objections raised for both certificates of canvass of the counsels present; 4. no report coming from the municipal board of canvassers from Malabon that there were uncanvassed election return except for one; 5. the municipal board of canvassers of Malabon submitted to the district board of canvassers certificate of canvass which indicated that the number of canvassed returns for District I is 397 and 407 for District II for a total of 804 out of 805 election returns; 6. the board has only the ministerial duty to tally the votes as reflected on the certificate of canvass supplemented by the statement of votes and has no authority to verify allegations of irregularities in the preparation thereof; and 7. there is no pre-proclamation contest for the position of congressman.
12
Private respondent's counsel sought reconsideration of the decision of the district board of canvassers but it was likewise denied by the board. After canvassing the municipal certificates of canvass, the district board of canvassers proclaimed petitioner the duly elected congressman of the legislative district of Malabon-Navotas. The board declared that petitioner obtained a total vote of 82,339 over 13 14 private respondent's 80,319 votes. Petitioner took his oath of office on the same day. The following day, on May 29, 1998, private respondent filed with the COMELEC in connection with SPC No. 98-143 an "Urgent Appeal from the Decision of the Legislative District Board of Canvassers for Malabon and Navotas with Prayer for the Nullification of the Proclamation of Federico S. Sandoval as Congressman." It alleged that there was a verbal order from the COMELEC Chairman to suspend the canvass and proclamation of the winning candidate for congressman of the Malabon-Navotas legislative district; that the district board of canvassers proceeded with the canvass and proclamation despite the verbal order; and that the non-inclusion of the 19 election returns in the canvass would result in an incomplete canvass of the election returns. It prayed that the decision of the district board of canvassers be reversed and that the municipal board of canvassers of Malabon be reconvened to complete its canvass. It also 15 prayed that the proclamation of petitioner as congressman be annulled. On May 30, 1998, private respondent filed with the COMELEC an Urgent Petition docketed as SPC No. 98-206. The petition sought the annulment of petitioner's proclamation as congressman. It alleged that at about 4:00 in the afternoon on May 28, 1998, the COMELEC Chairman directed the district board of canvassers to suspend the canvass and proclamation pending the resolution of the petition for correction of manifest error in the municipal certificate of canvass of Malabon; that the district board of canvassers still proceeded with the canvass in spite of the order; that the proclamation was made despite the non-inclusion of election returns from 19 precincts in 291 Election Laws Election Process and/or Proceedings
Malabon; and that the non-inclusion of these election returns will materially affect the result of the election. Private respondent prayed that the proclamation of petitioner as congressman be annulled and that the municipal board of canvassers of Malabon be ordered to 16 reconvene to include the 19 election returns in the canvass. On June 2, 1998, the COMELEC en banc issued an order setting aside the proclamation of petitioner. The COMELEC ruled that the proclamation by the district board of canvassers was void because: (1) it was made in defiance of the verbal order by the COMELEC Chairman relayed through Executive Director Resurrection Z. Borra to suspend the proclamation of the winner in the congressional election until the Commission has resolved private respondent's petition for correction of manifest error in the certificate of canvass; and (2) it was based on an incomplete canvass. The dispositive portion of the order reads: WHEREFORE, the proclamation made by the District Board of Canvassers of Malabon and Navotas for the position of Congressman being void ab initio is no proclamation at all. Meantime, it is hereby set aside. Atty. Ma. Anne Lacuesta is hereby relieved as Chairman, District Board of Canvassers of Malabon-Navotas, and Atty. Consuelo B. Diola is named Chairman of said Board. Atty. Diola is directed to maintain the status quo prior to the Board's unauthorized proclamation, until further orders. Meantime, let these cases be set for hearing en banc on 09 June 1998 at 10:00 in the morning. SO ORDERED.
17
On June 8, 1998, petitioner filed this petition for certiorari seeking the annulment and reversal of said order. Petitioner contended: 1. Respondent COMELEC's annulment of petitioner Sandoval's proclamation as winner in the election for congressman of Malabon-Navotas, without the benefit of prior hearing, is grossly indecent and violates his right to due process of law. 2. Respondent COMELEC's action on respondent Oreta's petitions violates Republic Act 7166 which bars pre-proclamation cases in the elections of members of the House of Representative. 3. Respondent Oreta's remedy for seeking correction of alleged manifest errors in the certificate of canvass for members of Congress does not lie with respondent COMELEC but, initially with the municipal board of canvassers. 4. At any rate, respondent Oreta's right to raise questions concerning alleged manifest errors in the Malabon certificate of canvass is barred by his failure to raise such questions before petitioner Sandoval's proclamation. 5. Respondent Oreta's recourse lies with the House of Representatives Electoral Tribunal which is not precluded from passing 18 upon the allegedly uncanvassed election returns in Malabon. On June 9, 1998, we required the respondents to comment on the petition. We also issued a temporary restraining order mandating the 19 COMELEC to cease and desist from implementing and enforcing the questioned order. The COMELEC nonetheless conducted a hearing on June 9, 1998 concerning SPC No. 98-143 and SPC No. 98-206. Private respondent filed his comment
20
on June 22, 1998. He argued:
1. Respondent COMELEC committed no jurisdictional error in declaring void ab initio the proclamation of petitioner Sandoval as Congressman-elect for the Malabon-Navotas legislative district. a. The premature and hasty proclamation of respondent Sandoval made by the District Board on the basis of an incomplete canvass is illegal, hence, null and void. b. Respondent COMELEC substantially complied with the requirements of due process in declaring the proclamation of respondent Sandoval an absolute nullity. 2. Respondent COMELEC properly took cognizance of respondent Oreta's petition to correct manifest error in the certificate of canvass issued by the Malabon board. a. While technically a pre-proclamation case, correction of manifest errors for purposes of the congressional elections is within the power and authority of the COMELEC to order, in the exercise of its appellate and original jurisdiction over such subject matter. 292 Election Laws Election Process and/or Proceedings
b. The failure of the Malabon board to tabulate the results of seventeen (17) election returns and to record the votes supporting the certificate of canvass resulted in a manifest error in the certificate of canvass which should be summarily corrected by ordering the Malabon board to reconvene, canvass the 17 election returns, record the votes in the statement of votes and prepare a new certificate of canvass. On June 29, 1998, then Solicitor General Silvestre Bello III filed a Manifestation and Motion in Lieu of Comment. assailed order of the COMELEC null and void for the following reasons:
21
He found the
1. Respondent COMELEC's motu propio and ex parte annulment of petitioner's proclamation as winner in the election for congressman of Malabon-Navotas is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction and violated petitioner's right to due process; and 2. Respondent COMELEC had no jurisdiction over the petitions filed by respondent Oreta, hence its order dated June 2, 1998 annulling petitioner's proclamation is null and void. In view of the Solicitor General's manifestation and motion, we required the COMELEC to file its own comment. The COMELEC filed its comment on August 11, 1998. It invoked its power of direct control and supervision over the board of canvassers, allowing it to review, revise and reverse the board's actions. It said that it rendered the questioned order upon finding that petitioner's proclamation was illegal and therefore void ab initio. It cited two reasons to support its findings: first, it was made in disregard of the Chairman's verbal order to suspend the canvass and proclamation, and second, it was based on an incomplete 22 canvass. On August 27, 1998, the new Solicitor General, Ricardo P. Galvez, filed a Manifestation and Motion withdrawing the Manifestation and Motion filed by former Solicitor General Bello. The Solicitor General, this time, upheld the validity of the assailed order. In essence, he argued that the Malabon municipal board of canvassers failed to include 17 election returns in its canvass; that such omission constitutes manifest error in the certificate of canvass which must be corrected by the district board of canvassers; and that the 23 proclamation of petitioner was void ab initio because it was based on an incomplete canvass. Petitioner and private respondent subsequently filed their respective reply, rejoinder and sur-rejoinder. Considering the arguments raised by the parties, the issues that need to be resolved in this case are: 1. whether the COMELEC has the power to take cognizance of SPC No. 98-143 and SPC No. 98-206, both alleging the existence of manifest error in the certificate of canvass issued by the Malabon municipal board of canvassers and seeking to reconvene said board of canvassers to allow it to correct the alleged error; and 2. whether the COMELEC's order to set aside petitioner's proclamation was valid. On the first issue, we uphold the jurisdiction of the COMELEC over the petitions filed by private respondent. As a general rule, candidates and registered political parties involved in an election are allowed to file pre-proclamation cases before the COMELEC. Preproclamation cases refer to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of election 24 25 returns. The COMELEC has exclusive jurisdiction over all pre-proclamation controversies. As an exception, however, to the general 26 rule, Section 15 of Republic Act (RA) 7166 prohibits candidates in the presidential, vice-presidential, senatorial and congressional 27 elections from filing pre-proclamation cases. It states: Sec. 15. Pre-proclamation Cases Not Allowed in Elections for President, Vice-President, Senator, and Members of the House of Representatives. For purposes of the elections for President, Vice-President, Senator and Member of the House Representatives, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or the certificates of canvass, as the case may be. However, this does not preclude the authority of the appropriate canvassing body motu propio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it. The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might result in a vacuum in these 28 sensitive posts. The law, nonetheless, provides an exception to the exception. The second sentence of Section 15 allows the filing of petitions for correction of manifest errors in the certificate of canvass or election returns even in elections for president, vice-president and members of the House of Representatives for the simple reason that the correction of manifest error will not prolong the process of canvassing nor delay the proclamation of the winner in the election. This rule is consistent with and complements the authority of the 293 Election Laws Election Process and/or Proceedings
COMELEC under the Constitution to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, 29 30 initiative, referendum and recall" and its power to "decide, except those involving the right to vote, all questions affecting elections." Applying the foregoing rule, we hold that the Commission has jurisdiction over SPC No. 98-143 and SPC No. 98-206, both filed by private respondent seeking to correct the alleged manifest error in the certificate of canvass issued by the Malabon municipal board of canvassers. These petitions essentially allege that there exists a manifest error in said certificate of canvass as the board failed to include several election returns in the canvassing. Private respondent prays that the board be reconvened to correct said error. Section 15 of RA 7166 vests the COMELEC with jurisdiction over cases of this nature. We reiterate the long-standing rule that jurisdiction is conferred by law and is determined by the allegations in the petition regardless of whether or not the petitioner is entitled to the relief 31 sought. The authority to rule on petitions for correction of manifest error is vested in the COMELEC en banc. Section 7 of Rule 27 of the 1993 32 COMELEC Rules of Procedure provides that if the error is discovered before proclamation, the board of canvassers may motu proprio, or upon verified petition by any candidate, political party, organization or coalition of political parties, after due notice and hearing, correct the errors committed. The aggrieved party may appeal the decision of the board to the Commission and said appeal shall be heard and decided by the Commission en banc. Section 5, however, of the same rule states that a petition for correction of manifest error may be filed directly with the Commission en banc provided that such errors could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidate had already been made. Thus, we held in 33 Ramirez vs. COMELEC: Although in Ong, Jr. v. COMELEC it was said that "By now it is settled that election cases which include pre-proclamation controversies must first be heard and decided by a division of the Commission" and a petition for correction of manifest error in the Statement of Votes, like SPC 95-198 is a pre-proclamation controversyin none of the cases cited to support this proposition was the issue the correction of a manifest error in the Statement of Votes under Sec. 231 of the Omnibus Election Code (B.P. Blg. 881) or Sec. 15 of R.A. No. 7166. On the other hand, Rule 27, Sec. 5 of the 1993 Rules of the COMELEC expressly provides that proclamation controversies involving, inter alia, manifest errors in the tabulation or tallying of the 34 results may be filed directly with the COMELEC en banc . . . . Petitioner nonetheless contends that SPC No. 98-143 and SPC No. 98-206 must be dismissed because private respondent failed to raise the issue of manifest error before the appropriate board of canvassers in accordance with the second sentence of Section 15 of RA 7166. We disagree. The issue of manifest error in the certificate of canvass for Malabon has been raised before the district board of canvassers before 35 petitioner could be proclaimed and said board has in fact ruled on the issue. We find this as sufficient compliance with the law. The facts show that it was impossible for private respondent to raise the issue before the Malabon municipal board of canvassers as it still did not have a copy of the statement of votes and the precinct list at the time of the canvassing in the municipal level. At that time, private respondent still had no knowledge of the alleged manifest error. He, however, lost no time in notifying the COMELEC Chairman and the district board of the alleged error upon discovery thereof. We find petitioner's argument, therefore, to be devoid of merit. We now go to the second issue. Although the COMELEC is clothed with jurisdiction over the subject matter and issue of SPC No. 98143 and SPC No. 98-206, we find the exercise of its jurisdiction tainted with illegality. We hold that its order to set aside the proclamation of petitioner is invalid for having been rendered without due process of law. Procedural due process demands prior notice 36 and hearing. Then after the hearing, it is also necessary that the tribunal show substantial evidence to support its ruling. In other words, due process requires that a party be given an opportunity to adduce his evidence to support his side of the case and that the 37 evidence should be considered in the adjudication of the case. The facts show that COMELEC set aside the proclamation of petitioner without the benefit of prior notice and hearing and it rendered the questioned order based solely on private respondent's allegations. 38 We held in Bince, Jr. vs. COMELEC: Petitioner cannot be deprived of his office without due process of law. Although public office is not property under Section 1 of the Bill of Rights of the Constitution, and one cannot acquire a vested right to public office, it is, nevertheless, a protected right. Due process in proceedings before the COMELEC, exercising its quasi-judicial functions, requires due notice and hearing, among others. Thus, although the COMELEC possesses, in appropriate cases, the power to annul or suspend the proclamation of any candidate, We had ruled in Farinas vs. Commission on Elections, Reyes vs. Commission on Elections and Gallardo vs. Commission on Elections that the COMELEC is without power to partially or totally annul a proclamation or 39 suspend the effects of a proclamation without notice and hearing. Citing Section 242 of the Omnibus Election Code, private respondent argues that the COMELEC is authorized to annul an illegal proclamation even without notice and hearing because the law states that it may motu proprio order a partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made. We reject the argument. Section 242 of the Omnibus Election Code reads as: Election Laws Election Process and/or Proceedings
294
Sec. 242. Commission's exclusive jurisdiction of all pre-proclamation controversies. The Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu proprio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding sections. The phrase "motu proprio" does not refer to the annulment of proclamation but to the manner of initiating the proceedings to annul a proclamation made by the board of canvassers. The law provides two ways by which annulment proceedings may be initiated. It may be at the own initiative of the COMELEC (motu proprio) or by written petition. In either case; notice and hearing is required. This is clear from the language of the law. We likewise reject private respondent's assertion that the hearing held on June 9, 1998 substantially satisfies the due process requirement. The law requires that the hearing be held before the COMELEC rules on the petition. Here, the public respondent first 40 issued an order annulling the proclamation of petitioner and then set the date of the hearing. We explained in Farinas vs. COMELEC the pernicious effect of such procedure: As aptly pointed out by the Solicitor General, "to sanction the immediate annulment or even the suspension of the effects of a proclamation before the petition seeking such annulment or suspension of its effects shall have been heard would open the floodgates of unsubstantiated petitions after the results are known, considering the propensity of the losing candidates to put up all sorts of obstacles in an open display of unwillingness to accept defeat, or would encourage the filing of baseless petitions not only to the damage and prejudice of winning candidates but also to the frustration of the sovereign will of the electorate." (citations omitted) Public respondent submits that procedural due process need not be observed in this case because it was merely exercising its administrative power to review, revise and reverse the actions of the board of canvassers. It set aside the proclamation made by the district board of canvassers for the position of congressman upon finding that it was tainted with illegality. We cannot accept public respondent's argument. Taking cognizance of private respondent's petitions for annulment of petitioner's proclamation; COMELEC was not merely performing an administrative function. The administrative powers of the COMELEC include the power to determine the number and location of polling places, appoint election officials and inspectors, conduct registration of voters, deputize law enforcement agencies and government instrumentalities to ensure free, orderly, honest, peaceful and credible elections, register political parties, organizations or coalitions, accredit citizens' arms of the Commission, prosecute election offenses, and recommend to the President the removal of or imposition of any other disciplinary action upon any officer or employee it has deputized for violation or disregard of its directive, order or decision. In addition, the Commission also has direct control and supervision over all personnel involved in the conduct of election. However, the resolution of the adverse claims of private respondent and petitioner as regards the existence of a manifest error in the questioned certificate of canvass requires the COMELEC to act as an arbiter. It behooves the Commission to hear both parties to determine the veracity of their allegations and to decide whether the alleged error is a manifest error. Hence, the resolution of this issue calls for the exercise by the COMELEC of its quasi-judicial power. It has been said that where a power rests in judgment or discretion, so that it is of judicial nature or character, but does not involve the exercise of functions of a judge, or is conferred upon an officer other 41 than a judicial officer, it is deemed quasi-judicial. The COMELEC therefore, acting as quasi-judicial tribunal, cannot ignore the requirements of procedural due process in resolving the petitions filed by private respondent. IN VIEW WHEREOF, the COMELEC order dated June 2, 1998 in SPC No. 98-143 and SPC No. 98-206 is ANNULLED. This case is REMANDED to the COMELEC and the Commission is hereby ordered to hold a hearing on the issues presented in SPC No. 98-143 and SPC No. 98-206, and thereafter render a decision based on the evidence adduced and the applicable laws. The incident of whether or not petitioner may continue discharging the functions of the office of the congressman pending resolution of the case on its merit shall be addressed by the COMELEC in the exercise of its reasonable discretion. SO ORDERED.1wphi1.nt
295
Republic of the Philipppines SUPREME COURT Manila EN BANC [G. R. No. 149803. January 31, 2002] DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, SR., IBRAHIM B. BIRUAR, ALONTO B. DAUDIE, MICHAEKL B. DIRANGAREN, ASNAWIS S. LIMBONA, RUSSMAN Q. SINSUAT, ZALNUDIN M. ABUTAZIL, DATUWATA U. ADZIS, BORGIVA T. DATU-MANONG, FREDDIE G. MANGUDADATU and ABBAS A. PENDATUN, JR., petitioners, vs. COMMISSION ON ELECTIONS, DATU ZACARIA A. CANDAO, DATU NORODIN M. MATALAM, KHARIS M. BARAGUIR, PAGRAS D. BIRUAR, CAHAR PENDAT IBAY, PATULA O. TIOLO, MARHOMSAL K. LAUBAN, MENTANG T. KABAGANI, ELIZABETH C. MASUKAT, GAPOR A. RAJAMUDA, SAID S. SALIK and LINTATO G. SANDIGAN, Respondents. DECISION PARDO, J.:chanroblesvirtuallawlibrary The case is a petition for certiorari and prohibition under Rule 64 in relation to Rule 65 of the Revised Rules of Court with preliminary injunction or temporary restraining order[1] to nullify and set aside two (2) orders dated July 26, 2001[2] and August 28, 2001[3] of the Commission on Elections (COMELEC), ordering a random technical examination of pertinent election paraphernalia and other documents in several municipalities in the province of Maguindanao to determine a failure of elections.chanroblesvirtuallawlibrary Petitioners[4] and respondents[5] were candidates for the provincial elective positions in the province of Maguindanao in the May 14, 2001 election. Petitioner Ampatuan and respondent Candao contended for the position of governor. The slate of Ampatuan emerged as winners as per election returns.chanroblesvirtuallawlibrary On May 23, 2001, respondents filed a petition with the Comelec for the annulment of election results and/or declaration of failure of elections[6] in several municipalities[7] in the province of Maguindanao. They claimed that the elections were completely sham and farcical. The ballots were filled-up en masse by a few persons the night before election day, and in some precincts, the ballot boxes, official ballots and other election paraphernalia were not delivered at all.[8]chanroblesvirtuallawlibrary On May 25, 2001, the Comelec issued an order suspending the proclamation of the winning candidates for congressman of the second district, governor, vice-governor and board members of Maguindanao.[9]chanroblesvirtuallawlibrary On May 30, 2001, petitioners filed with the Comelec a motion to lift the suspension of proclamation.[10] On June 14, 2001, the Comelec issued an order lifting the suspension of proclamation of the winning candidates for governor, vice-governor and board members of the first and second districts.[11] Consequently, the Provincial Board of Canvassers proclaimed petitioners winners.[12]chanroblesvirtuallawlibrary On June 16, 2001, respondents filed with the Supreme Court a petition to set aside the Comelec order dated June 14, 2001, and preliminary injunction to suspend the effects of the proclamation of the petitioners.[13] Meantime, petitioners assumed their respective offices on June 30, 2001. On July 17, 2001, the Court resolved to deny respondents petition.[14]chanroblesvirtuallawlibrary Petitioners assumption into office notwithstanding, on July 26, 2001, the Comelec ordered the consolidation of respondents petition for declaration of failure of elections with SPA Nos. 01-244, 01-332, 01-360, 01-388 and 01-390.[15] The COMELEC further ordered a random technical examination on four to seven precincts per municipality on the thumb-marks and signatures of the voters who voted and affixed in their voters registration records, and forthwith directed the production of relevant election documents in these municipalities.[16]chanroblesvirtuallawlibrary On August 28, 2001, the Comelec issued another order[17] directing the continuation of the hearing and disposition of the consolidated SPAs on the failure of elections and other incidents related thereto. It likewise ordered the continuation of the technical examination of election documents as authorized in the July 26, 2001 order. On September 27, 2001, the Comelec issued an order outlining the procedure to be followed in the technical examination.[18]chanroblesvirtuallawlibrary On September 26, 2001, petitioners filed the present petition.[19] They claimed that by virtue of their proclamation pursuant to the June 14, 2001 order issued by the Comelec, the proper remedy available to respondents was not a petition for declaration of failure of elections but an election protest. The former is heard summarily while the latter involves a full-blown trial. Petitioners argued that the manner by which the technical examination is to be conducted[20] would defeat the summary nature of a petition for declaration of failure of elections.chanroblesvirtuallawlibrary 296 Election Laws Election Process and/or Proceedings
On October 5, 2001, petitioners filed a motion[21] reiterating their request for a temporary restraining order to enjoin the implementation of the July 26, 2001 and August 28, 2001 Comelec orders.chanroblesvirtuallawlibrary On October 22, 2001, the Comelec issued an order suspending the implementation of the two (2) assailed orders, the pertinent portion of which reads as follows:chanroblesvirtuallawlibrary The Commission, in view of the pendency of G. R. No. 149803 xxx, requiring it to comment within ten (10) days from notice, hereby suspends implementation of its orders of July 26, 2001 and August 28, 2001 in deference to the resolution of said court.[22]chanroblesvirtuallawlibrary However, on November 13, 2001, the Comelec issued another order lifting the suspension.[23]chanroblesvirtuallawlibrary On November 20, 2001, we issued a temporary restraining order, to wit:chanroblesvirtuallawlibrary xxx the Court Resolved to (a) ISSUE the TEMPORARY RESTRAINING ORDER prayed for, effective immediately and continuing until further orders from this Court, ordering the respondent Commission on Elections to CEASE and DESIST from ordering the lifting of the suspended implementation orders dated 26 July 2001 and 28 August 2001 in SPA No. 01-323 xxx.[24]chanroblesvirtuallawlibrary The main issue to be resolved is whether the Commission on Elections was divested of its jurisdiction to hear and decide respondents petition for declaration of failure of elections after petitioners had been proclaimed.chanroblesvirtuallawlibrary We deny the petition.chanroblesvirtuallawlibrary Petitioners submit that by virtue of their proclamation as winners, the only remedy left for private respondents is to file an election protest, in which case, original jurisdiction lies with the regular courts. Petitioners cited several rulings that an election protest is the proper remedy for a losing candidate after the proclamation of the winning candidate.[25]chanroblesvirtuallawlibrary However, the authorities petitioners relied upon involved pre-proclamation controversies. In Loong v. Commission on Elections,[26] we ruled that a pre-proclamation controversy is not the same as an action for annulment of election results, or failure of elections. These two remedies were more specifically distinguished in this wise:chanroblesvirtuallawlibrary While, however, the Comelec is restricted, in pre-proclamation cases, to an examination of the election returns on their face and is without jurisdiction to go beyond or behind them and investigate election irregularities, the Comelec is duty bound to investigate allegations of fraud, terrorism, violence, and other analogous causes in actions for annulment of election results or for declaration of failure of elections, as the Omnibus Election Code denominates the same. Thus, the Comelec, in the case of actions for annulment of election results or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters signatures and thumbprints in order to determine whether or not the elections had indeed been free, honest and clean.[27]chanroblesvirtuallawlibrary The fact that a candidate proclaimed has assumed office does not deprive the Comelec of its authority to annul any canvass and illegal proclamation.[28] In the case at bar, we cannot assume that petitioners proclamation and assumption into office on June 30, 2001, was legal precisely because the conduct by which the elections were held was put in issue by respondents in their petition for annulment of election results and/or declaration of failure of elections.chanroblesvirtuallawlibrary Respondents allegation of massive fraud and terrorism that attended the May 14, 2001 election in the affected municipalities cannot be taken lightly as to warrant the dismissal of their petition by the Comelec on the simple pretext that petitioners had been proclaimed winners. We are not unmindful of the fact that a pattern of conduct observed in past elections has been the pernicious grab-theproclamation-prolong-the-protest slogan of some candidates or parties such that even if the protestant wins, it becomes a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire or has expired. xxx We have but to reiterate the oft-cited rule that the validity of a proclamation may be challenged even after the irregularly proclaimed candidate has assumed office.[29]chanroblesvirtuallawlibrary Petitioners likewise rely on the case of Typoco, Jr. v. Commission on Elections.[30] This Court held that Comelec committed no grave abuse of discretion in dismissing a petition for declaration of failure of elections. However, we made a pronouncement that the dismissal was proper since the allegations in the petition did not justify a declaration of failure of elections. Typocos relief was for Comelec to order a recount of the votes cast, on account of the falsified election returns, which is properly the subject of an election contest.[31]chanroblesvirtuallawlibrary Respondents petition for declaration of failure of elections, from which the present case arose, exhaustively alleged massive fraud and terrorism that, if proven, could warrant a declaration of failure of elections. Thus:chanroblesvirtuallawlibrary
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4.1. The elections in at least eight (8) other municipalities xxx were completely sham and farcical. There was a total failure of elections in these municipalities, in that in most of these municipalities, no actual voting was done by the real, legitimate voters on election day itself but voting was made only by few persons who prepared in advance, and en masse, the ballots the day or the night before election and, in many precincts, there was completely no voting because of the non-delivery of ballot boxes, official ballots and other election paraphernalia; and in certain municipalities, while some semblance of voting was conducted on election day, there was widespread fraudulent counting and/or counting under very irregular circumstances and/or tampering and manufacture of election returns which completely bastardized the sovereign will of the people. These illegal and fraudulent acts of desecration of the electoral process were perpetrated to favor and benefit respondents. These acts were, by and large, committed with the aid and/or direct participation of military elements who were deployed to harass, intimidate or coerce voters and the supporters or constituents of herein petitioners, principally, of re-electionist Governor Datu Zacaria Candao. Military units and personnel visibly, openly and flagrantly violated election laws and regulations by escorting people or elements engaged in the illegal, advanced preparation of ballots and election returns and, at times, manning the polling places or precincts themselves and/or staying within the prohibited radius. Ballot boxes and other election paraphernalia were brought not to the precincts or voting centers concerned but somewhere else where massive manufacture of ballots and election documents were perpetrated.[32]chanroblesvirtuallawlibrary The Comelec en banc has the authority to annul election results and/or declare a failure of elections.[33] Section 6 of the Omnibus Election Code further provides that:chanroblesvirtuallawlibrary Section 6. Failure of election.- If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election of failure to elect.chanroblesvirtuallawlibrary Elucidating on the concept of failure of election, we held that:chanroblesvirtuallawlibrary xxx before Comelec can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precincts concerned on the date fixed by law or, even if there was voting, the election nevertheless resulted in a failure to elect; and second, the votes cast would affect the result of the election. In Loong vs. Commission on Elections, this Court added that the cause of such failure of election should have been any of the following: force majeure, violence, terrorism, fraud or other analogous cases.[34]chanroblesvirtuallawlibrary In another case, we ruled that while it may be true that election did take place, the irregularities that marred the counting of votes and the canvassing of the election returns resulted in a failure to elect.[35]chanroblesvirtuallawlibrary In the case at bar, the Comelec is duty-bound to conduct an investigation as to the veracity of respondents allegations of massive fraud and terrorism that attended the conduct of the May 14, 2001 election. It is well to stress that the Comelec has started conducting the technical examination on November 16, 2001. However, by an urgent motion for a temporary restraining order filed by petitioners, in virtue of which we issued a temporary restraining order on November 20, 2001, the technical examination was held in abeyance until the present. In order not to frustrate the ends of justice, we lift the temporary restraining order and allow the technical examination to proceed with deliberate dispatch.chanroblesvirtuallawlibrary WHEREFORE, the petition is hereby DISMISSED. The temporary restraining order issued on November 20, 2001 is DISSOLVED. The Commission on Elections is directed to proceed with the hearing of the consolidated petitions and the technical examination as outlined in its September 27, 2001 order with deliberate dispatch. No costs.chanroblesvirtuallawlibrary SO ORDERED.chanroblesvirtuallawlibrary
298
Republic of the Philipppines SUPREME COURT Manila EN BANC [G.R. No. 155560-62. November 11, 2003] ALEEM AMERODDIN SARANGANI, Petitioner, vs. COMMISSION ON ELECTIONS and MAMINTAL ADIONG, respondents. DECISION VITUG, J.:chanroblesvirtuallawlibrary In the aforenumbered special civil action for certiorari pursuant to Rule 64, in relation to Rule 65, of the 1997 Rules on Civil Procedure, petitioner Aleem Ameroddin Sarangani assails the resolution, promulgated on 10 October 2002, of the Commission on Elections (COMELEC) en banc in SPC No. 01-369 as having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.chanroblesvirtuallawlibrary Petitioner Aleem Ameroddin Sarangani, Saidamen B. Pangarungan and private respondent Mamintal M. Adiong were the contenders for the position of governor in the province of Lanao del Sur in the elections of 14th May 2001. During the canvass of votes made by the Provincial Board of Canvassers (PBC), the contending candidates made several objections to the inclusion of Certificates of Canvass (COC) from several municipalities.chanroblesvirtuallawlibrary On 02 July 2001, the PBC issued resolutions, excluding COCs from the municipality of Wao, to wit:chanroblesvirtuallawlibrary In view of the fact that the second page of the subject Certificate of Canvass (COC) is a photocopy (Xerox) where the votes written in figures were likewise appearing to be a result of photo copying although the votes in words were handwritten thereon, and no single signature was affixed on that page of the COC that would least prove its authenticity, the Board resolved to exclude the same from the canvass.[1]chanroblesvirtuallawlibrary The PBC likewise excluded the COCs from the municipality of Bubong, viz:chanroblesvirtuallawlibrary The Board finds that there is an alteration of votes as reflected in the certificate of votes and the corresponding statements of votes where the board, with its limited authority, cannot ascertain, the true and real votes, thus, the board resolved to exclude the same from the canvass.[2] chanroblesvirtuallawlibrary On the same day, Sarangani and Pangarungan received a copy each of the boards ruling. Adiong, in his case, refused to acknowledge receipt of the rulings of the PBC; instead, Adiong filed with the COMELEC a Motion to Resolve Petition to Change Composition of the Provincial Board of Canvassers of Lanao del Sur. The COMELEC granted the motion in its order, dated 02 July 2001, that read:chanroblesvirtuallawlibrary WHEREFORE, the newly constituted Provincial Board of Canvassers of Lanao del Sur is hereby directed to resolve with dispatch all pending incidents left unresolved by the old board, by completing the canvass and proclaiming the winning candidates of the Province of Lanao del Sur in accordance with law.[3] chanroblesvirtuallawlibrary On 09 July 2001, the newly constituted PBC overturned the rulings of the old board on the COCs in the municipalities of Bubong and Wao. The new PBC observed that the rulings were signed by two members of the old board but not dated and merely submitted to the Office of the Secretary of the COMELEC for promulgation. The new PBC thus decided to include the COCs from the municipalities of Wao and Bubong in the canvass which, upon completion, resulted in the proclamation of Adiong as being the duly elected governor of Lanao del Sur.chanroblesvirtuallawlibrary Feeling aggrieved by the new ruling, Sarangani and Pangarungan filed, on 14 July 2001, separate appeals to the COMELEC. The appeals, docketed SPC No. 369 and SPC No. 370, were eventually consolidated in the Second Division of the COMELEC together with the Urgent Petition to Annul the Proclamation of Respondent Mamintal Adiong for the Elective Position of Governor of Lanao del Sur filed by petitioner and docketed SPC No. 373. Sarangani and Pangarungan claimed that the COCs from Wao and Bubong were manufactured and falsified that should accordingly be excluded from the canvass.chanroblesvirtuallawlibrary On 09 November 2001, the COMELEC Second Division rendered a resolution setting aside the 09th July 2001 order of the new PBC and reinstating the 02nd July 2001 ruling of the previous PBC which excluded the COCs from Wao and Bubong.chanroblesvirtuallawlibrary 299 Election Laws Election Process and/or Proceedings
On 15 November 2001, Adiong filed a motion for reconsideration before the COMELEC en banc contending that the resolution, dated 09 November 2001, of the Second Division was not supported by evidence, as well as contrary to law and existing jurisprudence, and arrived at without actual examination of the COCs from Wao and Bubong.chanroblesvirtuallawlibrary On 10 October 2002, the COMELEC en banc rendered a resolution that, in turn, annulled and set aside the questioned resolution of the Second Division; the resolution concluded:chanroblesvirtuallawlibrary WHEREFORE, this Commission (en banc) Resolved, as it hereby Resolves to Grant the instant motion for reconsideration of movant Mamintal M. Adiong and Deny the Motion for Reconsideration filed by movant Saidamen B. Pangarungan. The 09 November 2001 Resolution of the Second Division (this Commission) is hereby Annulled and Set Aside and the 09 July 2001 Rulings of the New Provincial Board of Canvassers of Lanao del Sur, including the certificates of canvass from the municipalities of Wao and Bubong, Lanao del Sur in the canvass of the 14 May 2001 election results for the position of governor of Lanao del Sur, are hereby Revived and Reinstated. Accordingly, the proclamation of herein movant Mamintal M. Adiong as the duly elected governor of the province of Lanao del Sur in the concluded 14 May 2001 elections is hereby Affirmed.chanroblesvirtuallawlibrary This Commission (en banc), likewise, hereby Directs the Law Department of this Commission to conduct an investigation for any culpable violation of the Omnibus Election Code and other pertinent election laws that the two (2) members of the old Provincial Board of Canvassers of Lanao del Sur namely, Atty. Ray Sumalipao, PES of Lanao del Sur, as Chairman and Dagaranao Saripada as Member-Secretary, might have committed by their following acts, to wit: (1) their failure to appear on the scheduled hearings/meetings in the instant cases after the suspension of the canvass on 29 June 2001 despite their assurances and legal duty to do so; (2) their having issued the alleged written rulings excluding the COCs from Wao and Bubong, Lanao. Del Sur, without giving the Vice-Chairman, Atty. Jubil Surmieda, the opportunity to participate and take part in the deliberations; and (3) their unprecedented act of deliberating and/or issuing the written rulings by themselves and of clandestinely submitting or turning over the said rulings to the Office of the COMELEC Secretary for promulgation on 02 July 2001, without setting any hearing or giving notice to the Vice-Chairman and/or to the herein parties.[4] chanroblesvirtuallawlibrary Aleem Ameroddin Sarangani now assails in the instant petition before the Court COMELECs en banc resolution. The submissions of the parties and their argument boil down .to the basic issue, largely predicated on factual considerations, of whether the certificates of canvass from the municipalities of Wao and Bubong should be excluded or included in the canvass of votes. The COMELEC en banc has made a careful examination of the original copies of the COCs from Wao and Bubong used by the PBC in the canvass, along with the statement of votes, which accompanied the COCs. The results have been found to be virtually the same.[5] The COMELEC explains:chanroblesvirtuallawlibrary Further perusal of the said COC likewise revealed that the entries written in the photocopied form used as second page are actually mere continuation of the entries written on page one thereof. As we have observed, the number of candidates who ran for the positions of Congressman and Vice-Governor during the said elections cannot be accommodated in the spaces provided in the first page of the COC. It appears therefore that the MBC of Wao deemed it wise to photocopy the first page of the COC and used it to reflect the other candidates for the said positions which cannot be accommodated anymore in the limited spaces provided for in the first page. Also, it must be noted that although the form used as second page of the COC is not an original page, the said page however is authenticated by the signatures and thumb marks of the watchers of NAMFREL and of the different parties during the said elections.chanroblesvirtuallawlibrary Thus, while it is conceded that the form used as second page of the COC is only a Xeroxed copy of page one and not an original page, we nonetheless hold that the entries made or written therein are all authentic and original, as correctly observed and ruled by the new board.chanroblesvirtuallawlibrary Second, we in the Commission (en banc) went out of our way and conducted our own investigation as to what really transpired during the canvassing of the 14 May 2001 election results in Wao, Lanao del Sur. From the inquiries made, it was deduced that during the canvass of election results in Wao, Lanao del Sur, the MBC found that the limited spaces provided for in the first page of the COC cannot accommodate the number of candidates who ran in the said elections, particularly for the positions of Congressman and ViceGovernor of Lanao del Sur. The MBC of Wao, in order not to jeopardize the canvass of election results and for it to clearly reflect the actual number of votes obtained by each candidate, decided to improvise a second page by photocopying the first page of the COC. The MBC then used the improvised photocopy of the first page, as the second page of the COC, in the canvass of the results of the elections in said municipality.chanroblesvirtuallawlibrary It is worth emphasizing that the result of our investigation is borne by the records of the instant consolidated cases. In fact, it is in full accord with the testimony given by the Chairman of the MBC of Wao when she was summoned by no less than the old PBC and made to explain before this Commission about the said matter. As testified by the Chairman, the MBC of Wao used the improvised photocopied form as page 2 of the COC because they ran out of original forms during the said elections. She however justified the action as being authorized by a COMELEC Resolution and further added that during the canvass, no candidate or political party ever questioned the use of such improvised second page. The Chairman likewise confirmed and affirmed all the contents of the questioned COC from Wao including the votes obtained by the parties, as reflected therein.chanroblesvirtuallawlibrary
300
Third, the petitioners contention that the COC from Wao is not an actual repository of the results of the elections as the second page thereof is a mere Xeroxed copy, finds no basis in fact and in law.chanroblesvirtuallawlibrary We have already held that only the form used as second page of the COC is Xeroxed but not the entries appearing or written therein by the MBC of Wao which are all authentic and original. But aside from this uncontroverted fact, there is another substantial reason why the subject certificate should really not be excluded in the canvass. It must be emphasized that the position being contested here is that of the governor. The entries for the position of governor are written, not on the alleged manufactured and photocopied form used as second page but on the first page of the said COC. The first page of the questioned COC, where the names and number of votes garnered by all the candidates for governor in the province of Lanao del Sur in the 14 May 2001 elections are written, is an original page which is duly authenticated by the signatures and thumb marks of all the members of the MBC of Wao and of the watchers of NAMFREL and the different political parties in the said elections. A close perusal of the first page of the COC from Wao (and even of the rest of the pages) also shows that the same is clean, regular and authentic on its face without any sign of tampering or alteration. Thus, the first page of the subject COC with all the entries written therein being authentic and original, it cannot be gainsaid that the said certificate certainly reflects the actual number of votes garnered by the parties in the contested elections, as ruled also by the new board.chanroblesvirtuallawlibrary xxx xxx xxx.chanroblesvirtuallawlibrary With the original copy of the COC from Bubong in view, we in the Commission (en banc) find no factual and legal basis whatsoever to exclude the said certificate in the canvass. We made a close scrutiny of the subject COC and found the same clean and regular on its face without even any sign of tampering or alterations made therein, similar to the findings of the new board. While it contains some erasures, such are nevertheless insignificant and truly insufficient to warrant the exclusion of the said COC in the canvass.chanroblesvirtuallawlibrary In examining the said COC, prudence will dictate that the erasures appearing therein are actually mere corrections made by the MBC of Bubong to reflect the true and actual number of votes garnered by the candidates during the elections. We in the Commission (en banc) are aware of the rigors attending the canvass of election results and that the board of canvassers normally commit errors in writing entries in the COCs, returns, etc. Naturally also, the board has to effect the necessary corrections by erasing the wrong entries and replacing it with the right ones. This is a normal occurrence during canvass proceedings and we have to make allowances. Indeed, certain errors and corrections are expected to appear in the election documents.chanroblesvirtuallawlibrary Thus, we hold that the ruling of the old board excluding in the canvass the COC from Bubong, which is affirmed by the Second Division (this Commission), really has no leg to stand on. A simple finding that the subject COC contains erasures is barely enough of a ground to support a ruling to immediately exclude the same in the canvass. It would be the height of exaggeration and unjustness if we in the Commission (en banc), upon examining the COC from Bubong which is clean and regular on its face, are to rule for its exclusion in the canvass upon a mere finding that it contains erasures. Furthermore, it is well-settled that in the absence of palpable errors and/or material defects which are clearly discernible on the face of an election return or a certificate of canvass, the same should be included in the canvassing by the board of canvassers. Extreme caution should likewise be exercised in excluding from the canvass a ce rtificate of canvass as it will result in the disenfranchisement of the entire voters of a particular municipality. Finding no defects whatsoever in the subject COC, we rule for its inclusion in the canvass of the 14 May 2001 elections results for the position of governor in the province of Lanao del Sur.chanroblesvirtuallawlibrary It is worth to add that we also requested from the ERSD of this Commission the original copies of the Statement of Votes (SOV) by Precinct accompanying the COC from Bubong. Having made the computations, we have compared the figures or the number of votes of the herein parties appearing in the COC with the aggregate number of votes obtained by them from the SOVs and found the results to be practically the same. Verily, the COC from Bubong must truly be included in the canvass so as not to disenfranchise the electorate of the province of Lanao del Sur.[6]chanroblesvirtuallawlibrary The Supreme Courts function is merely to check or to ascertain where COMELEC might have gone far astray from parameters laid down by law but not to supplant its factual findings. So long as its findings are not arbitrary and unfounded, the Court is not at liberty to discard and ignore such findings.chanroblesvirtuallawlibrary In a pre-proclamation controversy, the board of canvassers and the COMELEC are not required to look beyond or behind the election returns which are on their face regular and authentic. Where a party seeks to raise issues the resolution on which would necessitate the COMELEC to pierce the veil of election returns which are prima facie regular, the proper remedy would be a regular election protest and not a pre-proclamation controversy.[7] chanroblesvirtuallawlibrary Relative to the dubious circumstances surrounding the issuance of the original boards ruling of 02 July 2001 (wherein the COCs from the municipalities of Wao and Bubong were excluded from the canvass of votes) the COMELEC en banc held:chanroblesvirtuallawlibrary We in the Commission (en banc) likewise very much affirm the findings of the new PBC in its questioned ruling of 9 July 2001. There is really something incredulous in the manner and the circumstances surrounding the issuance by the old board of its written rulings on 2 301 Election Laws Election Process and/or Proceedings
July 2001. As can be gleaned from the records, after the canvass proceedings were suspended on 29 June 2001, the members of the old board, more particularly the Chairman and the Member-Secretary, assured the parties that they will thereafter immediately convene and issue written rulings to the inclusion or exclusion of the questioned COCs in the canvass. The said two (2) members however reneged on their promises for only the Vice-Chairman appeared on the scheduled hearings with the Chairman and the MemberSecretary always absent or nowhere to be found. This uncontroverted fact, it is worth reiterating, is exactly what impelled us to immediately grant Adiongs motion to resolve his petition to change the composition of the old board on the very same day that it was filed, or on 2 July 2001 to be exact. To this Commission (en banc), the failure of the old board to still convene and issue written rulings on 2 July 2001 is already causing disenfranchisement to the electorate of Lanao del Sur.chanroblesvirtuallawlibrary Thus, it is truly a wonder that the two members of the old PBC, who always absented themselves on all the scheduled meetings after the suspension of the canvass on 29 June 2001 despite their assurances to appear, suddenly came up on 2 July 2001 with the alleged written rulings. It must be stressed that the records are bereft of any showing that the old board, particularly the Chairman and the Member-Secretary who deliberated with and signed the written rulings by themselves, set a hearing or notified the herein parties or even the Vice-Chairman of the date, time and place for the deliberation and issuance of the said rulings, much less, the manner of its promulgation. As to when, where and how the said rulings would be deliberated, issued and promulgated, only the said two (2) members of the old board knew.chanroblesvirtuallawlibrary What we also find extraordinary in the instant consolidated cases is the manner by which the promulgation of the written rulings was effected by the two (2) members of the old PBC. Contrary to the provisions of law, procedures and established practice in this Commission, the herein parties including the Vice-Chairman were not notified by the two (2) members of the old board of the scheduled time and place for the issuance and/or promulgation of the written rulings, which is commonly made in open court or session. Likewise, it must be noted, and this may be the first time that we heard of this in the Commission, that the two (2) members of the old board submitted their written rulings to the Office of the Secretary of the Commission, for promulgation.[8] chanroblesvirtuallawlibrary The fact that private respondent has failed to file the appropriate appeal from the 02nd July 2001 ruling of the original PBC pursuant to Section 20 of Republic Act 7166, in relation to Section 38 of COMELEC Resolution 3848, cannot be taken as a blatant violation of the procedural rules considering the circumstances found by the COMELEC in the promulgation of the ruling. The procedure laid down in Section 20 (d & e) of Republic Act 7166, as well as in Section 38 (4 & 5) of COMELEC Resolution 3848, is to the following effect; viz:chanroblesvirtuallawlibrary (d) Upon receipt of the evidence, the board shall take up the contested returns, consider the written objections thereto and opposition, if any, and summarily and immediately rule thereon. The board shall enter its ruling on the prescribed form and authenticate the same by the signatures of its members.chanroblesvirtuallawlibrary (e) Any party adversely affected by the ruling of the board shall immediately inform the board if he intends to appeal said ruling. The board shall enter said information in the minutes of the canvass, set aside the returns and proceed to consider the other returns.chanroblesvirtuallawlibrary The records, as well as the findings of the COMELEC en banc, would disclose that the old PBC did not convene on its scheduled hearing on 30 June 2001 where it was supposed to promulgate its ruling; instead, it merely submitted the same to the Office of the Secretary of the COMELEC on 02 July 2001. On said date (of 02 July 2001), the COMELEC, without being aware that the original PBC submitted its rulings to the Office of the Secretary of COMELEC, issued an order changing the composition of the Board of Canvassers. It was then before the new Board of Canvassers that petitioner could raise his objections to the ruling of the original board.chanroblesvirtuallawlibrary In sum, the COMELEC en banc has not committed grave abuse of discretion in annulling and setting aside the ruling of its Second Division and in ordering the inclusion of the COCs from the municipalities of Wao and Bubong, Lanao del Sur, in the canvass of the 14th May 2001 election results for the position of governor of Lanao del Sur. The Court reiterates the rule that, unless the COMELEC is shown to have committed grave abuse of discretion, its decision will not be interfered with by this Court.[9] chanroblesvirtuallawlibrary WHEREFORE, the instant petition is DISMISSED, public respondent not having been shown to have committed grave abuse of discretion. Its challenged resolution, dated 10 October 2002, is AFFIRMED. No costs.chanroblesvirtuallawlibrary SO ORDERED.chanroblesvirtuallawlibrary
302
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 166229 June 29, 2005
MS. BAIRANSALAM LAUT LUCMAN, petitioner, vs. COMMISSION ON ELECTIONS and MOSAMA M. PANDI, respondents. DECISION AUSTRIA-MARTINEZ, J.: Petitioner Bairansalam Laut Lucman and private respondent Mosama M. Pandi were mayoralty candidates in Poona-Bayabao, Lanao del Sur, during the May 10, 2004 elections. During the canvassing of votes, private respondent objected to the inclusion of ten election returns, although only six of these are 1 subjects of the present controversy, to wit:
Precinct Number 1A
Election Number 01201094
Returns
Objection/s 1) The election returns is obviously manufactured and/or falsified 2) It is not authentic 3) It contains alterations 1) Obviously manufactured 1) 2) Incomplete 1) Obviously 2) Incomplete Obviously manufactured manufactured and/or falsified
1B/C 3A 8A 8B/8C 14A/14B
01201091 01201095 01201093 01201106 01201096
1) The election returns is obviously 2) It is incomplete, it lacks statistical data 1) Obviously manufactured
manufactured
The Municipal Board of Canvassers (Board) overruled private respondents objections on the disputed returns, and proclaimed petitioner as the winning candidate, as shown in the Certificate of Canvass of Votes and Proclamation of the Winning Candidates for 3 Municipal Offices, signed on May 19, 2004. Petitioner won over private respondent by a margin of 16 votes. Private respondent filed with Commission on Elections (COMELEC) an appeal from the ruling of the Board, docketed as SPC 04-184, alleging massive fraud and irregularities in the conduct of the elections, e.g., force, threat and intimidation were employed on the voters, 4 double voting, substitution of voters, snatching of ballots, padding of ballots and existence of flying voters. Private respondent also contended that the contested election returns should have been excluded from the canvass, and that the Board was precipitate in proclaiming petitioner as the winning candidate, as private respondent has manifested on record that he is intending to appeal the 5 Boards ruling. Private respondent admits that the exclusion of the contested returns is a ground for election protest, but he also argues that the COMELEC may go beyond the face of the returns to determine whether the elections in the precincts involved are a sham. Private respondent also filed a motion to annul proclamation and/or to suspend the effects of proclamation pendente lite.
6
Petitioner filed his Comment and/or Answer to the appeal, arguing that the grounds relied upon by private respondent are not proper in a pre-proclamation controversy but in an election protest. Petitioner also argues that her proclamation is valid; the petition is defective 303 Election Laws Election Process and/or Proceedings
for failure to include indispensable parties; and that private respondent failed to inform the Board that he is appealing its ruling, as 7 required by Section 20 of Republic Act No. 7166, or The Electoral Reforms Law of 1991. On June 16, 2004, a hearing on the appeal was held, wherein counsel for petitioner and private respondent, and several Board of Election Inspectors of Poona-Bayabao appeared, and Ms. Monera P. Macadato, Poll Clerk of Precinct 3A was called to the witness 8 stand. Presiding Commissioner Resurreccion Z. Borra, for the First Division, then issued an order on the same date, requiring the 9 parties to submit their simultaneous memoranda. On September 30, 2004, the COMELECs First Division issued the assailed order, with the following dispositive portion: In order therefore to resolve the issues raised in this Appeal the Commission (FIRST DIVISION) hereby ORDERS the document examiners of the Commission on Elections to conduct an examination of the List of Voters with Voting Record of the precincts involved in this case as well as the VRRs pertaining to the contested precincts in the Municipality of Poonabayabao to determine whether or not actual voting by the duly registered voters of said precincts were conducted during the elections of May 10, 2004; Considering that we have annulled the proclamation of BAIRAMSALAM (sic) LAUT LUCMAN as duly elected mayor of Poonabayabao, Lanao del Sur, it is hereby ordered that the Vice-Mayor of said Municipality assumed (sic) the position pursuant to the provisions of the Local Government Code, until the final resolution of this petition. SO ORDERED.
10
Commissioner Virgilio O. Garcillano dissented to the majority opinion on the ground that the petition involves issues proper to an 11 election protest and not a pre-proclamation controversy. Petitioner moved to reconsider the assailed Order, and in an Order dated October 13, 2004, Commissioner Borra ordered and certified 12 the motion for reconsideration to the Commission en banc. Thereafter, the Commission en banc, in an Order dated October 14, 2004, issued a temporary restraining order and a status quo ante order, directing the parties to maintain the status prevailing before the issuance of the September 30, 2004 Resolution. On December 14, 2004, the COMELEC en banc issued the assailed Resolution denying petitioners motion for lack of merit. dispositive portion of said Resolution reads:
13
The
WHEREFORE, in view of the foregoing, the Commission (en banc) RESOLVED, as it hereby RESOLVES to DENY the Motion for Reconsideration for lack of merit. The Order of the Commission (First Division) dated 30 September 2004 is hereby AFFIRMED. Accordingly, in implementation of the directive therein, the document examiners of the Commission on Elections are hereby ordered to conduct an examination of the List of Voters with Voting Record of the precincts involved in this case as well as the VRRs pertaining to the contested precincts in the Municipality of Poonabayabao to determine whether or not actual voting by the duly registered voters of said precincts were conducted during the elections of May 10, 2004, and thereafter submit a report thereon. The Temporary Restraining Order/Status Quo Ante Order dated 14 October 2004 is hereby lifted. SO ORDERED.
14
On December 17, 2004, Commissioner Mehol Sadain issued a Constancia protesting his lack of participation in the En Banc Resolution. Commissioner Sadain stated that although he was out on official business at the time the Resolution was routed to his office, he should have been allowed to vote thereon, or at least, informed of the urgency of its promulgation so that he may cast his vote 15 or allow its promulgation without his signature. Petitioner then filed the present special civil action for certiorari and prohibition with prayer for the issuance of temporary restraining order/preliminary injunction, based on the following grounds: PUBLIC RESPONDENT ACTED WITHOUT, IN EXCESS OR WITH GRAVE ABUSE OF DISCRETION IN ANNULLING THE PROCLAMATION OF THE PETITIONER. PUBLIC RESPONDENT ACTED IN EXCESS OR WITH GRAVE ABUSE OF DISCRETION IN ORDERING THE DOCUMENT EXAMINERS TO EXAMINE THE LIST OF VOTERS WITH VOTING RECORDS AND THE VRRs. PUBLIC RESPONDENT ACTED WITHOUT, IN EXCESS OR WITH GRAVE OF DISCRETION (sic) IN TAKING COGNIZANCE OF THE APPEAL WITHOUT THE INDISPENSABLE PARTIES IMPLEADED AND WITHOUT THE MANDATORY REQUIREMENTS OF SECTION 20, RA 7166 COMPLIED. 304 Election Laws Election Process and/or Proceedings
PUBLIC RESPONDENT ACTED WITHOUT JURISDICTION IN TAKING COGNIZANCE OF THE MOTION TO RECONSIDER THE 16 CHALLENGED INTERLOCUTORY ORDER OF SEPTEMBER 30, 2004. The pivotal issue in this case is whether the appeal from the Board of Canvassers to the COMELEC (First Division) interjected by private respondent makes a case for a pre-proclamation controversy. Section 241 of the Omnibus Election Code defines a pre-proclamation controversy as "any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns." Under Section 243 of the same Code, the issues that may be raised in a pre-proclamation controversy, are as follows: SEC. 243. Issues that may be raised in pre-proclamation controversy. - The following shall be proper issues that may be raised in a pre-proclamation controversy: (a) Illegal composition or proceedings of the board of canvassers; (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. The foregoing enumeration is restrictive and exclusive.
17
In the present case, the objections initially raised by private respondent before the Municipal Board of Canvassers were proper in a preproclamation controversy, i.e., the election returns is obviously manufactured and/or falsified, it is not authentic, it contains alterations. However, in his appeal to the COMELEC, he further alleged that the elections held in the precincts clustered in the Pooni Lomabao Central Elementary were tainted with massive election irregularities. According to private respondent, there were "massive substitution of voters, snatching of ballots from the voters by people identified with the Lucman who filled them up against the will of the voters, force or coercion, threats, intimidation, casting of votes by double registrants in the same precincts (double entry), and flying voters 18 " Private respondent also alleged that the counting of votes on May 11, 2004, were not prepared simultaneously with the appreciation of the ballots/counting of votes, in violation of Section 44 of COMELEC Resolution No. 6667 (March 16, 2004). Also, private respondents watchers were threatened by petitioners watchers, forcing them to leave the counting room, and that the Board of Election Inspectors merely copied the entries on the tally boards and records of votes made by petitioners watchers. Finally, private respondent alleged that the denial to his objections to the contested election returns were not made by the Municipal Board of Canvassers in the prescribed form, and that despite his manifestation that he will appeal the Boards ruling on the returns, it proceeded 19 with petitioners proclamation. Obviously, the foregoing allegations pertain not only to the preparation, transmission, receipt, custody and appreciation of the election returns, but to the conduct of the elections as well. Pre-proclamation controversies are limited to challenges directed against the Board of Canvassers and proceedings before said Board relating to particular election returns to which private respondent should have made specific verbal objections subsequently reduced to writing. A pre-proclamation controversy is limited to an examination of the election returns on their face. As a rule, the COMELEC is 20 limited to an examination of the election returns on their face. It is beyond the COMELECs jurisdiction to go beyond the face of the 21 returns or investigate election irregularities. The proceedings in a pre-proclamation controversy are summary in nature. Reception of evidence aliunde, such as the List of Voters 23 with Voting Record and the VRRs, is proscribed. Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a pre-proclamation controversy. Such issues should be posed and resolved in a regular election protest, which is 24 within the original jurisdiction of the Regional Trial Court (RTC). In a regular election protest, the parties may litigate all the legal and 25 factual issues raised by them inasmuch detail as they may deem necessary or appropriate. In Macabago vs. COMELEC, 305
26 22
the Court reiterated:
That the padding of the List of Voters may constitute fraud, or that the Board of Election Inspectors may have fraudulently conspired in its preparation, would not be a valid basis for a pre-proclamation controversy either. For, whenever irregularities, such as fraud, are asserted, the proper course of action is an election protest. Such irregularities as fraud, vote-buying and terrorism are proper grounds in an election contest but may not as a rule be invoked to declare a failure of election and to disenfranchise the greater number of the electorate through the misdeeds, precisely, of only a relative few. Otherwise, elections will never be carried out with the resultant disenfranchisement of the innocent voters, for the losers will always cry fraud and terrorism (GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665). Hence, as correctly argued by petitioner, private respondents cause of action before the COMELEC is proper for an election protest and not a pre-proclamation controversy, and the COMELEC committed grave abuse of discretion in entertaining private respondents petition/appeal. Consequently, all subsequent actions by the COMELEC in relation to private respondents appeal are null and void, and correctible by the present special civil action for certiorari. Following the disposition of the Court in Macabago vs. COMELEC, the dismissal of private respondents petition/appeal before the COMELEC is without prejudice to the filing of a regular election protest before the proper RTC, the period for the filing of which is deemed suspended by the filing of private respondents petition/appeal. In light of the foregoing ruling, the Court need not delve on the other issues posed by petitioner as these necessarily have been 28 rendered moot and academic thereby. WHEREFORE, the petition is GRANTED. The assailed Order dated September 30, 2004 of the First Division and Resolution En Banc dated December 14, 2004 are SET ASIDE on ground of lack of jurisdiction. Private respondents appeal to the First Division and the appeal to the COMELEC En Banc are DISMISSED, without prejudice to the filing of a regular election protest, the period for the filing of which is deemed suspended by the filing of the petition before the COMELEC until the finality of herein decision. The proclamation of petitioner by the Municipal Board of Canvassers is maintained and petitioner should be allowed to assume her office as mayor of Poona-Bayabao, Lanao del Sur. SO ORDERED.
27
306
G.R. No. 134657 December 15, 1999 WENCESLAO P. TRINIDAD, petitioner, vs. THE COMMISISION ON ELECTIONS, THE PASAY CITY BOARD OF ELECTION CANVASSERS and JOVITO CLAUDIO, respondents.
BUENA, J.: This is a petition for certiorari, prohibition and mandamus with prayer for temporary restraining order and/or preliminary injunction seeking to set aside the resolution of the Commission on Elections En Banc dated July 29, 1998 dismissing the petition for annulment of proclamation of Jovito O. Claudio and the supplemental petition for correction of the statement of votes as well as affirming the proclamation of Claudio in SPC No. 98-144 entitled "Wenceslao Trinidad, et al. vs. Pasay City Board of Canvassers, et al." The undisputed facts of the case are as follows: Petitioner Wenceslao Trinidad and private respondent Jovito Claudio both ran for the position of mayor of Pasay City in the May 11, 1998 elections. On May 18, 1998 private respondent Claudio was proclaimed by the Pasay City Board of Canvassers as the elected mayor with 55,325 1 votes over petitioner Trinidad's 55,097 votes. On May 23, 1998, petitioner filed a petition for correction of manifest errors and annulment of proclamation. Alleged as grounds, among others, were the double canvassing of five election returns and the inclusion of a bogus election return in the canvass. Petitioner claimed that, after the questioned errors have been corrected, he would obtain a plurality of 54,916 votes as against private respondent's 54,857. On June 8, 1998, petitioner filed a supplemental petition averring an error in the Summary of Statement of Votes for District II of Pasay City (No. 094338). It was alleged that in the said summary of statement of votes Trinidad gathered 1009 votes per Statement of Vote 3 (SOV) No. 094284. But in SOV No. 094284 it was reflected therein that he obtained 1099 votes. On June 9, 1998, an order was issued by the COMELEC requiring the parties to file their simultaneous memoranda within five days 4 after which the case will be deemed submitted for resolution with or without memoranda. The Pasay City Board of Canvassers filed its Answer on even date.
5 2
Thereafter, or on June 15, 1998, private respondent Claudio filed his answer/memorandum (with counter-petition for correction).
In the counter-petition it was stated that some statements of votes contained errors which, if corrected, would entitle Claudio to an additional forty (40) votes but would result in petitioner's being deducted thirteen (13) votes. Petitioner contested the filing of private respondent's answer/memorandum (with counter-petition for correction) in his Manifestation and 7 Comments dated July 18, 1998. In the said pleading, petitioner, reiterated his plea for the addition of 90 votes to his total and manifested two (2) new errors, namely: (1) the election returns from five precincts were not canvassed and (2) there were some discrepancies in the election returns of nine precincts. These errors as well as the uncanvassed returns, if corrected and accounted for in the total number of votes, would allegedly give petitioner an edge of eighteen (18) votes over private respondent: 55,229 votes to Claudio's 55,211 votes. The COMELEC rendered its decision on July 29, 1998, the dispositive portion of which reads as follows: 307 Election Laws Election Process and/or Proceedings
WHEREFORE, the Commission authorizes the Pasay City Board of Canvassers to re-convene and re-canvass the Election Returns correcting the manifest clerical errors therein and also correcting the discrepancy between SOV 094284 and SOV 094338, as above indicated. ACCORDINGLY, the Commission hereby DISMISSES the petition for annulment of proclamation of respondents Jovito O. Claudio and Reynaldo Mateo and the Supplemental Petition for correction of the Summary of the Statement of Votes. We AFFIRM the proclamation of respondents Claudio and Mateo with the margin of votes indicated above. SO ORDERED. Hence this petition. The sole issue: WHETHER OR NOT RESPONDENT COMMISSION ON ELECTION EN BANC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN AFFIRMING THE PROCLAMATION OF RESPONDENT JOVITO CLAUDIO AS ELECTED MAYOR OF PASAY CITY. The petition must fail. In support of the ground raised above, petitioner contends that there was an incomplete canvassing of votes because five (5) precincts of Pasay City were never canvassed. These precincts were 448-A/448-A-2, 688-A-5, 725-A-4, 95-A/96-A, and 351-A. Canvassing of these precincts was overlooked when five precincts were doubly canvassed. The issue on incomplete canvassing was raised for the first time in the Manifestation and Comments filed by petitioner. We take pains to emphasize that the same was filed only on July 18, 1998, thirty-four (34) days after the case had been submitted for 9 resolution on June 14, 1998. When a case is already deemed submitted for decision or resolution, the court can only consider the evidence presented prior to this period. It can not and must not take into account evidence presented thereafter without obtaining prior 10 leave of court. For as held in the case of Arroyo vs. House of Representatives Electoral Tribunal, (t)he rule in an election protest is that the protestant or counter protestant must stand or fall upon the issues he had raised in his original or amended pleading filed prior to the lapse of the statutory period for filing of protest or counter protest. A pre-proclamation controversy praying for the correction of manifest errors must be filed not later than five (5) days following the date of 11 12 proclamation while an election protest must be filed within ten (10) days after the proclamation of the results of the election. At this juncture, we have to point out that the said Manifestation and Comments, whether it be considered a pre-proclamation controversy or an election protest, was filed beyond the reglementary period to do so. The COMELEC has not ruled on the matter of the five uncanvassed election returns. It was alleged in the memorandum filed by the Solicitor General that the "eight (8) precincts [for the five uncanvassed election returns and the three erroneous statements of votes] were not raised before the Commission en 13 banc." The Commission on Elections may suspend its rules of procedure so as not to defeat the will of the electorate. Petitioner contends that there was no need to suspend the COMELEC rules of procedure in order to resolve the issues raised in the Supplemental Petition. We find that there was a need to do so. Contrary to what the COMELEC perceived, the Supplemental Petition is a petition for correction of manifest errors, not a petition for 14 declaration of nullity. It squarely falls within the definition provided in the case of Mentang vs. Commission on Elections. (c)orrection of manifest errors has reference to errors in the election returns, in the entries of the statement of votes by precinct/per municipality, or in the certificate of canvass. 308 Election Laws Election Process and/or Proceedings
8
Sec. 5 (2), Rule 27 of the 1993 COMELEC Rules of Procedure likewise provides: Sec. 5. Pre-proclamation Controversies Which May Be Filed Directly with the Commission. (a) The following preproclamation controversies may be filed directly with the Commission: xxx xxx xxx 2) When the issue involves the correction of manifest errors in the tabulation or tallying of the results during the canvassing as where . . . (3) there had been a mistake in the copying of the figures into the statement of votes or into the certificate of canvass. . . The Supplemental Petition prayed for the correction of the erroneous copying of figures into the summary statement of votes from the statement of votes thus it is a petition for correction of manifest errors. Some of the definitions given for the word "manifest" are that it is evident to the eye and understanding; visible to the eye; that which is 15 open, palpable, uncontrovertible; needing no evidence to make it more clear; not obscure or hidden. (citations omitted) A manifest clerical error is . . . one that is visible to the eye or obvious to the understanding, and is apparent from the papers to the eye of the appraiser and collector, and does not include an error which may, by evidence dehors the record be shown to have 16 been committed. (citations omitted) Sec. 5 (b) of the same Rules also enunciates that: If the petition is for correction, it must be filed not later than five (5) days following the date of proclamation . . . Note should be made that the Supplemental Petition was filed on June 8, 1998 or exactly 21 days from the date of proclamation on May 18, 1998. It was therefore filed beyond the reglementary period to do so. The Supplemental Petition which was meant to be suppletory to the original petition involving a pre-proclamation controversy, is a prohibited pleading. Rule 13 of the 1993 COMELEC Rules of Procedure states: Sec. 1. What Pleadings are not Allowed: xxx xxx xxx (g) supplemental pleadings in special actions and in special cases. A pre-proclamation controversy is a special case in accordance with Section 5 (h), Rule 1, 1993 COMELEC Rules of Procedure, thus: Sec. 5. Meaning of Words. Whenever used in these Rules, the following words or terms shall mean: xxx xxx xxx (h) Special Cases shall refer to Pre-proclamation cases Finally, Section 3, Rule 9 of the same Rules provides thus: Sec. 3. Matters Subject of Supplemental Pleadings. Upon motion of a party the Commission or a Division, as the case may be, may, upon notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. . . . The subject of the supplemental pleading filed by petitioner was not in accordance with the prescribed rule. As the name connotes, a supplemental petition merely supplies deficiencies in aid of the original petition. It cannot be used to introduce a new matter or a new cause of action or defense which is precisely what the petitioner had done in the instant case. 309 Election Laws Election Process and/or Proceedings
A supplemental pleading is not like an amended pleading a substitute for the original one. It does not supersede the original, but assumes that the original pleading is to stand, and the issues joined under the original pleading 17 remain as issues to be tried in the action. The issue raised in the Supplemental Petition is a new one, not even advanced in the original Petition. It sought the correction of Summary Statement of Votes No. 094338 which credited petitioner with only 1009 votes when Statement of Votes No. 094284 upon which the former was based listed 1099 votes for him. The original petition only asked for the correction of the double canvassing of five election returns and the exclusion of an election return of an inexistent precinct. It did not raise the issue of the incorrect total of the summary statement of votes and its correction. We quote some portions of the questioned resolution of the COMELEC, thus: However, this Commission cannot countenance an injustice that will be done to petitioner if his allegation of error if proven would result into a loser becoming a winner. The Commission in order to fulfill its mandate in faithfully determining the will of the electorate may brush aside its rules if it stands in the way of finding the truth. The Supreme Court recognized the Commission's paramount role when it pronounced that, "While election controversies should be speedily settled, so as not to frustrate the expression of the people's will, this laudable objective does not free the Commission from compliance with established principles of fairness and justice and the adjudication of cases not on technicality but on their substantive merits" (Rodriguez versus Comelec, 119 SCRA 465). If the rules are obstacles in the way of doing justice, then it can be said that it is a mere technicality that should not stand in the way of 18 determining as to who between the contending parties have the mandate of the electorate. xxx xxx xxx . . . (T)he Commission in order to do justice and truly determine the rightful winner in the elections may suspend its 19 rules provided the right of the parties are equally protected and act thereon pro hac vice. . . . From the above, we could glean why there was a need to suspend the 1993 COMELEC Rules of Procedure. Without its suspension, the Supplemental Petition would have been dismissed. The allegation that it was Republic Act 7166 that was suspended and not the 1993 COMELEC Rules of Procedure is not correct. Both R.A. 7166 and the COMELEC Rules of Procedure cover the same subject on which the suspension was made, to wit: Sections 17 and 20 of R.A. 7166 (now found under Section 243 of the Omnibus Election Code of the Philippines) and Sections 2 and 9, Rule 27 of the 1993 COMELEC Rules of Procedure. Petitioner alleges that the suspension of the rules should have been applied equally. We hold that the COMELEC did so. In his petition, Trinidad alleges that there is no provision or concept in the Omnibus Election Code or the COMELEC Rules of Procedure that mentions a "counter-petition" in pre-proclamation cases because a petition is an original action, a separate formal petition, or one that can stand alone. He further contends that there are some antecedents or jurisdictional requirements that must be met, such as payment of filing fees, mandatory compliance with the period within which to appeal or file action, the service of summons, setting of the case for hearing, the reception of evidence for both parties, etc. The Answer/Memorandum (with Counter-Petition for Correction) filed by private respondent is akin to a counterprotest. A counterprotest is not a prohibited pleading under Rule 13 of the 1993 COMELEC Rules of Procedure. Such pleading is provided for under Ordinary Actions (Section 3, Rule 20, 1993 COMELEC Rules of Procedure) and is equivalent to an answer with a counterclaim 20 under the 1997 Rules of Civil Procedure, which applies suppletorily to the COMELEC Rules of Procedure. It is the contention of the petitioner that there was no need for the COMELEC to suspend its rules of procedure because even without the Supplemental Petition the COMELEC would have basis to order the correction of errors since the petition itself clearly states the number of votes garnered by petitioner and private respondent based on a summation of the statement of votes by precinct. The COMELEC, in its resolution of July 29, 1998,
21
raised the following points:
1. The Supplemental Petition is an entirely separate petition as it raised a new issue distinct and different in substance to the original petition. 310 Election Laws Election Process and/or Proceedings
2. It was filed on June 8, 1998 or exactly 21 days from date of proclamation on May 18, 1998 and clearly filed out of time and is a prohibited pleading in the instant case. Despite these infirmities, the Supplemental Petition was considered and the allegations therein given due consideration. The 22 COMELEC, in fact, credited petitioner with the additional ninety (90) votes claimed in his Supplemental Petition. Petitioner thus benefited from the suspension of the rules of procedure when his Supplemental Petition was resolved in his favor. He should not be heard to say that the COMELEC did not give him the same treatment accorded the private respondent. In the instant case, however, we do not find the COMELEC to have exceeded nor abused its jurisdiction. Unless it is shown that there is patent and gross abuse of discretion, we will not interfere with its decisions and rulings. WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED. SO ORDERED.
311
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 151216 July 18, 2003
MANUEL MILLA, petitioner, vs. REGINA BALMORES-LAXA, respondent. CARPIO MORALES, J.: The petition at bar involves the power of the Commission on Elections (COMELEC) to annul the proclamation, due to an alleged error in the tabulation of the Statement of Votes, of a winning candidate for municipal councilor who had taken his oath and assumed office as such. Petitioner Manuel Milla and respondent Regina Balmores-Laxa were candidates for councilor of Gerona, Tarlac in the May 14, 2001 1 elections. On May 18, 2001, petitioner was proclaimed as the eighth winning candidate by the Municipal Board of Canvassers (BOC) based on 2 the Statement of Votes and the Certificate of Canvass showing the votes obtained by each candidate as follows: Daisy Mamba Edwin Yamoyam Antonio Perez, Jr. Orlando Ines Raul Cruz Francisco de Leon Ricardo Parazo Manuel Milla Regina Balmores-Laxa Pastora M. Cucuin 14,558 12,424 11,607 9,764 9,724 9,390 8,781 8,052 8,006 7,669
3
One month after petitioner's proclamation or on June 18, 2001, respondent filed a petition with the COMELEC against petitioner and 5 the BOC for "correction of entries in [the] Statement of Votes . . . based on fraud and irregularities in [the] canvassing of votes." The petition, which was docketed as SPC No. 01-311, alleged that the entries for four precincts in the Statement of Votes did not correspond to the election returns for the respective precincts, to wit: [Manuel Milla and the Municipal Board of Canvassers], by confederating, aiding and helping one another violating Sections 223, 230 and 231 of the Omnibus Election Code of the Philippines (B.P. 881) and Section 27(b) of R.A. 6646 (Electoral Reforms Law of 1987[)], padded respondent Manuel Milla's votes by THREE HUNDRED FIFTY (350) VOTES by inserting the number "1" figure before the actual votes in three precincts and converting "1" into "6" in one precinct illustrated as follows: Precinct No. 71A 30[A] 21A2 41A Actual votes (ER) Padded 7 (SOV) 32 132 29 14 31 129 64 131
8 6
votes
Attached to respondent's petition were photocopies of the election returns from precincts 71A, 30A 12 certified true copies of the Statement of Votes. 312 Election Laws Election Process and/or Proceedings
10
and 21A
11
and photocopies of
Respondent likewise alleged that the said entries for the four precincts were statistically improbable because petitioner "garnered so 13 much higher votes than the other candidates." As, by the Certificate of Canvass, petitioner led respondent by 46 votes whereas the "discrepancy" between the Statement of Votes and the election returns was 350, respondent prayed before the COMELEC for the correction of errors in the Statement of Votes and Certificate of Canvass, the declaration as null and void of the proclamation of petitioner, and her proclamation as one of the duly 14 elected municipal councilors. Petitioner, who in the meantime took his oath of office on June 29, 2001 and thereafter assumed the position of municipal councilor, prayed in his Answer to respondent's petition before the COMELEC for the dismissal of the petition on the following grounds: (1) the 16 petition was filed beyond the reglementary period of five (5) days from date of proclamation, (2) pre-proclamation cases should be 17 terminated after proclamation and assumption of office, and (3) padding of statement of votes is not a proper subject of a pre18 proclamation case. The BOC, on the other hand, in its Answer with motion for the reconvening of the BOC to effect the correction of entries in the Statement of Votes, proffered unawareness of, and disclaimed any hand in, any irregularity in the copying of the number of votes from the election returns to the Statement of Votes, as its role during the canvassing was limited to appreciating election returns, the 20 canvassing having been done by two sub-canvassing committees. In its Resolution
21 19 15
of December 18, 2001, the COMELEC En Banc, found as follows:
. . . Milla, on the other hand, does not deny . . . the padding of his votes by three hundred fifty 350 votes; but instead moved for the dismissal of the petition on the petty ground of a technicality that the petition was filed beyond the five (5) day reglementary period for filing petitions of its sort. xxx Given the attendant evidence at hand, specifically the unexplained mismatched inscriptions in the entries for the questioned precincts in the Statement of Votes, we conclude that the padding of three hundred fifty (350) votes committed by respondent Board in order to favor respondent Milla is beyond the realm of an honest mistake. As to the correct number of votes, it is without question that what appears in the election returns is the actual number of votes garnered by private respondent. xxx In addition, not a single item in the material averments of the Petition was specifically denied by either respondent, thus lending credence to the complete truthfulness of petitioner's account of the "dagdag-bawas" scheme which she has already proven by clear and convincing evidence. As such, we cannot leave the "correction" of the "error" in canvassing to the same body [which] perpetrated such 22 "error," as they so pray for in their answer. (Emphasis supplied), and denied the BOC's motion to reconvene, declared herein petitioner's proclamation null and void, and proclaimed respondent as the eighth winning candidate. Hence, the present recourse anchored on the following grounds: I THE COMMISSION ON ELECTION[S] HAS NO JURISDICTION TO PROCLAIM RESPONDENT AS THE EIGHT[H] WINNING 23 CANDIDATE FOR COUNCILOR AND TO DECLARE PETITIONER'S PROCLAMATION NULL AND VOID. II THE RESOLUTION IN QUESTION IS NOT SUPPORTED BY THE EVIDENCE.
24
Petitioner maintains that the COMELEC has no jurisdiction over the petition as it was filed beyond the reglementary period. For, so petitioner contends, since the proclamation was made on May 18, 2001, the petition to correct the Statement of Votes should have 25 been filed within 5 days thereafter conformably with Section 5, Rule 27 of the COMELEC Rules of Procedure which reads:
313
Sec. 5. Pre-proclamation Controversies Which May Be Filed Directly With the Commission. (a) The following preproclamation controversies may be filed directly with the Commission: xxx 1) x x x 2) When the issue involves the correction of manifest errors in the tabulation or tallying of the results during the canvassing as where (1) a copy of the election returns or certificate of canvass was tabulated more than once, (2) two or more copies of the election returns of one precinct, or two or more copies of certificate of canvass were tabulated separately, (3) there has been a mistake in the copying of the figures into the statement of votes or into the certificate of canvass, or (4) so-called returns from non-existent precincts were included in the canvass, and such errors could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidates had already been made. b) x x x If the petition is for correction, it must be filed not later than five (5) days following the date of proclamation and must implead all candidates who may be adversely affected thereby. xxx (italics supplied) In holding that it validly assumed jurisdiction over the petition, the COMELEC asserts that "[a] proclamation that is based on a clerical or mathematical mistake (or a blatant padding of votes) is not a valid proclamation [h]ence, the same can be challenged even after the 26 proclaimed candidate has assumed office." The Statement of Votes forms the basis of the Certificate of Canvass and of the proclamation. Any error in the statement ultimately 27 affects the validity of the proclamation. If a candidate's proclamation is based on a Statement of Votes which contains erroneous entries, it is null and void. It is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to annul the 28 proclamation. In the case at bar, as the Statement of Votes contained erroneous entries, the COMELEC rightfully assumed jurisdiction over respondent's petition for the correction thereof and declaration of nullity of petitioner's proclamation. While our election laws are silent 29 when such and similar petitions may be filed directly with the COMELEC, the above-quoted Section 5, Rule 27 of the Rules of Procedure sets a prescriptive period of five (5) days following the date of proclamation. The COMELEC, however, could suspend its 30 own Rules of Procedure so as not to defeat the will of the electorate. For adherence to technicality that would put a stamp on a 31 palpably void proclamation, with the inevitable result of frustrating the people's will, cannot be countenanced. Petitioner nevertheless posits that even assuming that the COMELEC may suspend the application of Section 5, Rule 27 of its Rules of 32 Procedure, it can no longer exercise jurisdiction after his proclamation, oath and assumption of office in view of Section 16 of Republic 33 Act 7166 which states: Sec. 16. Pre-Proclamation Cases Involving Provincial, City and Municipal. Offices. Pre-proclamation cases involving provincial, city and municipal offices shall be allowed and shall be governed by Sections 17, 18, 19, 20, 21 and 22 hereof. All pre-proclamation cases pending before the Commission shall be deemed terminated at the beginning of the term of the office involved and the rulings of the boards of canvassers concerned shall be deemed affirmed, without prejudice to the filing of a regular election protest by the aggrieved party. However, proceedings may continue when on the basis of evidence thus far presented, the Commission determined that the petition appears meritorious and accordingly issues an order for the proceeding to continue or when an appropriate order has been issued by the Supreme Court in a petition for certiorari. (Emphasis supplied) By petitioner's claim, there is no showing that respondent's petition falls under the exception in the above-quoted provision as "the 34 petition has not been determined by the COMELEC to be meritorious" and "no order has been issued for the proceeding to continue." The claim does not lie. The COMELEC issued Resolution No. 4493 on June 29, 2001 declaring the termination of all pre-proclamation cases except those included in the list annexed thereto which list included SPC No. 01-311, respondent's petition before the COMELEC subject of the present petition. Petitioner additionally claims that the COMELEC, in assuming original jurisdiction over a case involving municipal officials, acted beyond the limits of its power under the Constitution, particularly Section 2, paragraph 2 of Article IX-C 35 which provides:
314
Sec. 2. The Commission on Elections shall exercise the following powers and functions: (1) . . . (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory and not appealable. (3) . . . (Emphasis supplied) Petitioner's above-claim does not likewise lie. By his admission, the petition filed by respondent before the COMELEC involves a preproclamation controversy, not an election contest and indeed it is not, for while the petition alleged fraud and statistical improbability, the remedy sought was merely for correction of erroneous entries in the Statement of Votes which were based on the election returns. As the petition then of respondent involves a pre-proclamation controversy, following Sec. 3 of Art. IX-C of the 1987 Constitution which provides: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (Emphasis supplied) it should have first been heard and decided by a division of the COMELEC, the decision of the division were filed.
36
and then by the En Banc if a motion for reconsideration of
Since, as reflected above, the COMELEC sitting en banc acted on respondent's petition which was not first passed upon by a division, 37 it acted without jurisdiction, or with grave abuse of discretion. The assailed Resolution of the COMELEC dated December 18, 2001 is thus null and void and it is in this light that the present petition is GRANTED. This leaves it unnecessary to pass on petitioner's second assigned error. WHEREFORE, the instant petition is GRANTED. The Resolution of the COMELEC En Banc dated December 18, 2001 in SPC No. 01311 is hereby SET ASIDE, and the COMELEC is ordered to assign the SPC No. 01-311 to a division, which is hereby directed to resolve the same with reasonable dispatch. No pronouncement as to costs. SO ORDERED.
315
ROBERT Z. BARBERS, petitioner, vs. COMMISSION ON ELECTIONS, NATIONAL BOARD OF CANVASSERS FOR SENATORS AND PARTY-LIST REPRESENTATIVES, and RODOLFO G. BIAZON, respondents. DECISION CARPIO, J.: The Case This is a petition for certiorari and prohibition with prayer for temporary restraining order and preliminary injunction to nullify the 2 Resolution dated 6 July 2004 of the Special Division of the Commission on Elections ("COMELEC"), as well as the Resolution dated 3 25 October 2004 of the COMELEC en banc. The Resolutions affirmed the proclamation of the COMELEC sitting en banc as the National Board of Canvassers ("NBC") declaring Rodolfo G. Biazon ("Biazon") as the duly elected 12th Senator in the 10 May 2004 National and Local Elections. The Facts Robert Z. Barbers ("Barbers") and Biazon were candidates for re-election to the Senate of the Philippines in the 10 May 2004 Synchronized National and Local Elections ("elections"). On 24 May 2004, the COMELEC sitting en banc as the NBC for the election of Senators promulgated Resolution No. NBC 04-002 proclaiming the first 11 duly elected Senators in the elections. The COMELEC as the NBC promulgated the Resolution based on the Certificates of Canvass ("COCs") submitted by the following: (a) 78 Provincial Boards of Canvassers; (b) 7 City Boards of Canvassers of cities comprising one or more legislative districts; (c) 13 City Board of Canvassers from the National Capital Region; (d) 2 District Boards of Canvassers from Metro Manila; (e) 74 Special Boards of Canvassers for Overseas Absentee Voting; and (f) 1 Board of Canvassers for Local Absentee Voting. The COMELEC declared that it would proclaim the remaining 12th winning candidate for 4 Senator after canvassing the remaining unsubmitted COCs. On 2 June 2004, the COMELEC promulgated Resolution No. NBC 04-005 proclaiming Biazon as "the 12th ranking duly elected 12th Senator of the Republic of the Philippines in the May 10, 2004 national and local elections, to serve for a term of 6 years, beginning on June 30, 2004 in accordance with Article VI, Section IV of the Constitution of the Philippines." The COMELEC stated that after the canvass of the supplemental Provincial COCs from Maguindanao (Cotabato City), Lanao del Sur and one barangay in Nueva Vizcaya, Biazon obtained 10,635,270 votes nationwide. On the other hand, Barbers obtained 10,624,585 votes. Thus, Biazon obtained 10,685 more votes than Barbers. The COMELEC stated that this "difference will not materially be affected by the votes in certain precincts 5 where there was failure of elections." Claiming that Biazons proclamation was void, Barbers filed a petition to annul the proclamation of Biazon as Senator of the Republic of the Philippines with the COMELEC on 7 June 2004. The petition, docketed as SPC Case No. 04-258, was assigned to a Special 6 Division of the COMELEC. In his petition, Barbers asserted that the proclamation of Biazon was "illegal and premature being based on an incomplete canvass." Barbers asserted that the remaining uncanvassed COCs and votes and the results of the special elections, which were still to be 7 conducted, would undoubtedly affect the results of the elections. In his Comment/Answer, Biazon asserted that: (1) the First Division of the COMELEC has no jurisdiction to review, modify, or set aside what the COMELEC sitting en banc as the NBC for Senators has officially performed, which is the promulgation of Resolution No. NBC 04-005; (2) since the COMELEC has proclaimed Biazon on 2 June 2004 in Resolution No. NBC 04-005 as the duly elected 12th Senator and Biazon has taken his oath of office on 30 June 2004, the Senate Electoral Tribunal, not the COMELEC, has jurisdiction to entertain the present petition; (3) with Biazons admitted and established margin of 10,685 votes, the votes from the alleged uncanvassed COCs and the votes still to be cast in the special elections which were still to be conducted would not substantially affect the results of the election for the 12th and last slot for Senator; and (4) the NBC committed a manifest error in crediting to Barbers a 316 Election Laws Election Process and/or Proceedings
1
total of 34,711 votes from the province of Lanao del Sur while crediting to Biazon only 1,428 votes from the supplemental Provincial 8 COCs for Lanao del Sur despite the existence and availability of the Municipal COCs for Balabagan and Tagoloan, Lanao del Sur. On 9 June 2004, Barbers filed an Omnibus Motion for Immediate Service of Summons, for Suspension of the Effects of Proclamation, and to Set Case for Hearing. Barbers asserted that an immediate resolution of the present case was necessary because the term of office of Senators would commence on 30 June 2004. Barbers further claimed that there were Municipal COCs still to be included in the senatorial canvass and special elections still to be held in certain municipalities involving a total of 29,219 votes. Thus, Barbers insisted that "suspension of the effects of the proclamation" of Biazon was necessary. Barbers stressed that there could be no valid 9 proclamation based on an incomplete canvass. On 6 July 2004, the COMELEC issued the first assailed Resolution, disposing as follows: WHEREFORE, premises considered, the Commission (Special Division) hereby DENIES the petition to annul the proclamation of respondent RODOLFO G. BIAZON for LACK OF MERIT. ACCORDINGLY, the Special Division RESTATES the proclamation of the Commission on Elections sitting en banc as the National Board of Canvassers declaring RODOLFO G. BIAZON as the duly elected 12th Senator of the Republic of Philippines in the May 10, 2004 National and Local Elections. SO ORDERED.
10
Barbers filed a motion for reconsideration The COMELECs Ruling
11
which the COMELEC en banc denied in the second assailed 25 October 2004 Resolution.
In its 6 July 2004 Resolution, the COMELEC (Special Division) denied Barbers petition, thus: The instant petition is not a pre-proclamation case as the issues raised herein clearly are not among those enumerated under Section 34 of COMELEC Resolution No. 6669. Neither is it a protest case because the ground cited in the petition is not proper for protest although a proclamation has already been made. It is a petition, as entitled, to annul proclamation based on alleged incomplete canvass. The power to annul proclamation is an exclusive power of the Commission vested upon it by the Constitution, which states that the Commission shall exercise the power to "Decide except those involving the right to vote, all questions affecting elections xxx" (Article IX-C, Section 2 (3). As held in the Case of Aguam vs. COMELEC, the COMELEC shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. The Constitution enjoins the COMELEC to decide, saving those involving the right to vote, all administrative questions, affecting elections. Corollary thereto, the court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation illegally made. Records reveal that on June 2, 2004, the National Board of Canvassers (NBC), on the basis of the Certificates of Canvass submitted by seventy-eight (78) Provincial Board of Canvassers; seven (7) City Boards of Canvassers of cities comprising one or more legislative districts; thirteen (13) from the National Capital Region (NCR); two (2) from the District Boards of Canvassers of Metro Manila; seventyfour (74) from the Special Board of Canvassers for Overseas Absentee Voting; and one (1) from the Board of Canvassers for Local Absentee Voting, including the supplemental Provincial Certificates of Canvass from Maguindanao (Cotabato City), Lanao del Sur and Nueva Vizcaya (one barangay), declared that private respondent obtained ten million six hundred thirty-five thousand two hundred seventy (10,635,270) votes as against the ten million six hundred twenty-four thousand five hundred eighty-five (10,624,585) votes garnered by petitioner. On the basis of the number of votes garnered by private respondent, he was proclaimed on June 2, 2004 as the duly elected Senator in the recently concluded May 10, 2004 National and Local Elections. However, after his proclamation, the Commission received Certificates of Canvass from the aforementioned provinces. The results of the votes for petitioner and private respondent, showed the following figures, to wit: VOTES OBTAINED BARBERS BIAZON
PROVINCE
NO. OF PRECINCTS
317
1.
Maguindanao a. South Upi b. Talitay 35 32 4,068 116 997 138
2.
Sultan Kudarat a. Columbio 21 831 656
3.
Northern Samar a. Silvino Lobos 31 62 372
4.
Albay a. Ligao City 12 Total 1,259 6,736 100 2,263
Although special elections in Tinglayan, Kalinga were conducted on June 7, 2004, no voters voted, thus, there was no COC to canvass. On the other hand, special elections for the remaining places are yet to be conducted, namely:
1.
Lanao del Sur a. Bayang b. Balabagan c. Madalum d. Kapai Maguindanao 259 votes 375 votes 537 votes 197 votes (3 precincts) (2 precincts) (4 precincts) (1 precinct)
2. a. Kabuntalan Northern Samar 3. a. Silvino Lobos Total 1,300 votes 2,931 votes (8 precincts) 263 votes (1 precinct)
From the foregoing data, petitioner and private respondent should be credited with the following number of votes, to wit: As canvassed by the NBC Not included in Total the PCOC where special elections were conducted 2,263 6,736 10,637,533 10,631,321
BIAZON BARBERS
10,635,270 10,624,585
From the above summation, the lead of private respondent over petitioner undoubtedly was reduced to six thousand two hundred twelve (6,212). Assuming that the remaining uncanvassed votes of two thousand nine hundred thirty-one (2,931) in places where special elections are yet to be held were all votes in favor of petitioner Barbers, nevertheless, this will not materially affect the results of the election. To say the least, even if private respondents lead was decreased to three thousand two hundred ninety-nine (3,299) 12 votes, he remains to be the winner and therefore the lawful occupant of the 12th slot for the senatorial position. 1awphi1.zw+ 318 Election Laws Election Process and/or Proceedings
In its 25 October 2004 Resolution, the COMELEC en banc denied Barbers motion for reconsideration, thus: We maintain Our declaration and findings as established by the Special Division. After a judicious and thorough scrutiny of the records, We are more than convinced that respondents proclamation was indeed, valid and operative. In the questioned resolution issued by the Special Division, We based our ruling on the official Comelec records, revealing that respondents lead over petitioner was insurmountable regardless of the results from the delayed certificates of canvass and from the uncanvassed votes for the special elections. This ratiocination was very well explained in the assailed resolution and need not be reiterated herein. Unfortunately for petitioner, he failed in this motion to adduce evidence sufficient to overturn Our ruling and justify the prayer for reliefs. It must be noted that, in a pleading, petitioner has raised the Report/Recommendation of the Supervisory Committee to buttress his claim that, indeed, there was incomplete canvass. Petitioner is invited to examine the said report closer, for the same shows the extent of irregularities that transpired in the subject towns and provinces such as Columbio, Sultan Kudarat, and Talitay, Maguindanao, rendering the supplemental provincial certificates of canvass dubious at the very least. For the town of Columbio, the Committee reported that: Records with the ERSD show that the MCOC and corresponding SOV dated June 18 and 17, 2004, respectively, for the twenty-one (21) precincts used as basis for the supplemental PCOC are unsigned by the chairman of the municipal board of canvassers, but signed by the two other members. Please note that the two other members of the MBC who signed the SOV and MCOC used as basis of the supplemental PCOC are the members of the Pangamadun board all of whom were replaced by the Radam board as early as May 20, 2004. (emphasis supplied) On the other hand, the Committee noted that for the town of Talitay, thus: Atty. Wyne Asdala, Chairman of the Provincial Board of Canvassers for the Province of Maguindanao then submitted a supplemental provincial certificate of canvass dated June 16, 2004 containing the results from the municipalities of South Upi and Talitay. Per SOV attached to the supplemental PCOC, Barbers obtained 4,472 votes and Biazon, 455 votes for the municipality of Talitay. Records do not show which MCOC was used as basis by the Asdala board for the preparation of the supplemental PCOC. (emphasis supplied) And by exercising its prerogative and discretion, the Commission duly noted the said Committees recommendation to "use only the MCOCs prepared by the duly constituted municipal boards of canvassers as basis for the provincial canvass in Sultan Kudarat and Maguindanao." At any rate, We likewise confirm the opinion of Commissioner Florentino A. Tuason, Jr., on the nature and ramifications of herein SPC Case for Annulment of Proclamation. Citing the case of Rasul vs. Comelec, the Honorable Supreme Court declared that In Pangilinan vs. Commission on Elections, this Court has ruled that where the candidate has already been proclaimed winner in the congressional elections, the remedy of petitioner is to file an electoral protest with the Electoral Tribunal of the House of Representatives. In like manner, where as in this case, petitioner assails the Commissions resolution proclaiming the twelfth (12th) winning senatorial candidate, petitioners proper recourse was to file a regular election protest which under the Constitution and the Omnibus Election Code exclusively pertains to the Senate Electoral Tribunal. Under the Omnibus Election Code (OEC), following the clear enunciation of Section 242 and the immediately succeeding sections, it is clear that annulment of proclamation, be it partial or total, arises from the Commissions jurisdiction over pre-proclamation controversies. Republic Act (RA) No. 7166, qualifies such power of the Commission by so stating that a pre-proclamation contest may only apply in cases where there are "manifest errors" in the election returns or certificates of canvass, with respect to national elective positions such as herein case. To prove that the same is manifest, the errors must appear on the certificates of canvass or election returns sought to be corrected and/or objections thereto must have been made before the board of canvassers and specifically noted in the minutes of their administrative proceedings. (Chavez vs. Comelec, GR No. 150799, 03 February 2004) Parties, therefore, ought to be careful in availing themselves of remedies lest they fall into a trap of their own making one that they cannot escape from. Nevertheless, granting arguendo that the present case is not a pre-proclamation case, as so painstakingly pointed out by petitioner, but one that is due to an incomplete canvass, and the relief sought emanates from the plenary power of the Commission, herein petitioner, 13 sadly, failed to present convincing and legitimate evidence in support of his petition (including this motion for reconsideration). Hence, this petition. 319 Election Laws Election Process and/or Proceedings
The Issues Barbers raises the following issues for resolution: Whether or not public respondent COMELEC gravely abused its discretion, amounting to lack or excess of jurisdiction when it deliberately insisted in resorting to and in using and considering, for purposes of tallying/tabulation of the still uncanvassed election results, MERE improvised Municipal COCs, which are NON-CANVASSED election documents, unauthentic, unreliable and dubious on their faces which documents were submitted, not to the NBC, but to a mere Comelec Department [ERSD]; instead of availing and relying on official CANVASS documents PROVINCIAL COCs submitted to COMELEC, as the National Board of Canvassers for Senators. Whether or not the public respondent COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction when it first correctly recognized the undisputed fact that there was an INCOMPLETE CANVASS at the time that respondent Biazon was initially "proclaimed" PREMATURELY on June 2, 2004, but adamantly refused to rectify its VOID premature proclamation when it opted to reinstate the said sham proclamation of respondent Biazon, by anomalously resorting to and relying on, unauthentic, dubious and non14 canvassed documents [Municipal COCs], rather than on the legal and lawful canvassed documents [PROVINCIAL COCs]. The Courts Ruling The petition must fail. To our mind, the basic issue for resolution is whether this Court can take cognizance of this petition. Certiorari as a special civil action is available only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction, and (b) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law to 15 annul or modify the proceeding. There must be capricious, arbitrary and whimsical exercise of power for certiorari to prosper. On the other hand, prohibition as a special civil action is available only if the following essential requisites concur: (a) the proceedings of the tribunal, corporation, board, officer or person exercising judicial, quasi-judicial or ministerial functions are without or in excess of its or his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, and (b) there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law to compel the respondent to desist from further proceedings in the 16 action. Article VI, Section 17 of the 1987 Constitution provides: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organization registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. (Emphasis and underscoring supplied) Rule 12 of the Revised Rules of the Senate Electoral Tribunal provides: RULE 12. Jurisdiction. The Senate Electoral Tribunal is the sole judge of all contests relating to the election, returns, and qualifications of the Members of the Senate. (Emphasis and underscoring supplied) In Pangilinan v. Commission on Elections,
17
we ruled that:
The Senate and the House of Representatives now have their respective Electoral Tribunals which are the "sole judge of all contests relating to the election, returns, and qualifications of their respective Members," thereby divesting the Commission on Elections of its jurisdiction under the 1973 Constitution over election cases pertaining to the election of the Members of the Batasang Pambansa (Congress). In Javier v. COMELEC,
18
we interpreted the phrase "election, returns and qualifications" as follows:
The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestees title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the 320 Election Laws Election Process and/or Proceedings
authenticity of the election returns; and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of his certificate of candidacy. (Emphasis supplied) The word "sole" in Section 17, Article VI of the 1987 Constitution and Rule 12 of the Revised Rules of the Senate Electoral Tribunal ("SET") underscores the exclusivity of the SETs jurisdiction over election contests relating to members of the Senate. The authority conferred upon the SET is categorical and complete. It is therefore clear that this Court has no jurisdiction to entertain the instant 19 petition. Since Barbers contests Biazons proclamation as the 12th winning senatorial candidate, it is the SET which has exclusive 20 jurisdiction to act on Barbers complaint. In Pangilinan, we ruled that "where the candidate has already been proclaimed winner in the congressional elections, the remedy of 22 petitioner is to file an electoral protest with the Electoral Tribunal of the House of Representatives." In like manner, where as in the present case, Barbers assails Biazons proclamation as the 12th duly elected Senator, Barbers proper recourse is to file a regular 23 election protest with the SET. Certiorari and prohibition will not lie in this case considering that there is an available and adequate remedy in the ordinary course of law to annul the COMELECs assailed proceedings. We take pains to emphasize that after the proclamation, Barbers should have filed an electoral protest before the SET. While the resolution of the issues presented in this petition falls within the sole jurisdiction of the SET, still we opt to discuss them to show the absence of grave abuse of discretion on the part of COMELEC. Barbers claims that Biazons 2 June 2004 proclamation as the 12th winning senatorial candidate is a nullity because it was based on an incomplete canvass. Barbers asserts that the COMELECs act of making such premature proclamation constituted grave abuse of discretion amounting to lack or excess of jurisdiction. Barbers also claims that the COMELEC gravely abused its discretion when, after having used Provincial Certificates of Canvass ("PCOCs") in the canvass of election results for Senators up to 2 June 2004, the COMELEC used the Municipal Certificates of Canvass ("MCOCs") in the "final tabulation of the uncanvassed results and that of the 24 special elections yet to be held in certain parts of the country." Barbers arguments are specious. An incomplete canvass of votes is illegal and cannot be the basis of a subsequent proclamation. A canvass is not reflective of the true vote of the electorate unless the board of canvassers considers all returns and omits none. However, this is true only where the election 25 returns missing or not counted will affect the results of the election. 1avvphi1.zw+ The COMELEC, in promulgating its 2 June 2004 Resolution No. NBC 04-005 proclaiming Biazon as the 12th duly elected Senator, observed the following provisions of the Omnibus Election Code: SEC. 233. When the election returns are delayed, lost or destroyed. In case its copy of the election returns is missing, the board of canvassers shall, by messenger or otherwise, obtain such missing election returns from the board of election inspectors concerned, or if said returns have been lost or destroyed, the board of canvassers, upon prior authority of the Commission, may use any of the authentic copies of said election returns or certified copy of said election returns issued by the Commission, and forthwith direct its representative to investigate the case and immediately report the matter to the Commission. The board of canvassers, notwithstanding the fact that not all the election returns have been received by it, may terminate the canvass and proclaim the candidates elected on the basis of the available election returns if the missing election returns will not affect the results of the election. (Emphasis and underscoring supplied) On 5 May 2004, the COMELEC promulgated Resolution No. 6749, i.e., "General Instructions for the Canvass of Votes and Proclamation of the Results for Senators and Party List in the May 10, 2004 National and Local Elections." Section 9 of the Resolution provides: SEC. 9. Proclamation of results. Upon completion of the canvass, the Supervisory Committee and the watchers if available shall certify the final printout of results as canvassed. On the basis of the certified final printout, the NBC shall cause the preparation of, sign and approve the Certificate of Canvass and Proclamation, and proclaim the winning candidates for senators, certify the results of the election of the party-list system and proclaim the nominees of the parties which obtained the required percentage of votes. Notwithstanding the fact that not all of the COCs have been received or canvassed, the NBC may terminate the canvass if the missing COCs would no longer affect the results of the elections. (Emphasis and underscoring supplied) In the present case, the report which the COMELEC Supervisory Committee submitted on 29 June 2004 shows that Barbers obtained 26 6,736 votes in areas where results were not included in the national canvass. As for Biazon, he garnered 2,263 votes. Also, the 321 Election Laws Election Process and/or Proceedings
21
Supervisory Committees report shows that the total number of registered voters in areas where special elections were still to be 27 conducted was only 2,931, covering only 19 precincts in three municipalities. As correctly stated by the COMELEC: From the above summation, the lead of private respondent over petitioner undoubtedly was reduced to six thousand two hundred twelve (6,212). Assuming that the remaining uncanvassed votes of two thousand nine hundred thirty-one (2,931) in places where special elections are yet to be held were all votes in favor of petitioner Barbers, nevertheless, this will not materially affect the results of the election. To say the least, even if private respondents lead was decreased to three thousand two hundred ninety-nine (3,299) 28 votes, he remains to be the winner and therefore the lawful occupant of the 12th slot for the senatorial position. It suffices to say that the COMELEC based its ruling in the assailed Resolutions on official COMELEC records. The COMELEC enjoys 29 the presumption of good faith and regularity in the performance of official duty. Since the election returns not included in the national canvass as well as the results of the special elections to be held would not materially affect the results of the elections, it is immaterial whether the COMELEC used PCOCs or MCOCs in the subsequent canvass. The alleged invalidity of Biazons proclamation involves a dispute or contest relating to the election returns of members of the Senate. Indisputably, the resolution of such dispute falls within the sole jurisdiction of the SET. For this Court to take cognizance of the electoral protest against Biazon would usurp the constitutional functions of the SET. In addition, the COMELEC did not commit any grave abuse of discretion in issuing the assailed Resolutions affirming Biazons proclamation since the uncanvassed returns and the results of the special elections to be held would not materially affect the results of the elections. WHEREFORE, we DISMISS the instant petition. No pronouncement as to costs. SO ORDERED.
322
G.R. No. 95336 July 12, 1991 JUAN GARCIA RIVERA, petitioner, vs. COMMISSION ON ELECTIONS and JUAN MITRE GARCIA II, respondents. A. Florentino Dumlao, Jr. for petitioner. Mariano V. Baranda, Jr. for private respondent.
RESOLUTION
PADILLA, J.:p Petitioner Juan Garcia Rivera and private respondent Juan Mitre Garcia II were candidates for the position of Mayor of Guinobatan, Albay, during the local elections in January 1988. The Municipal Board of Canvassers proclaimed Rivera as the duly elected Mayor by a majority of ten (10) votes. On 26 January 1988, Garcia filed an election protest with the Regional Trial Court, Legazpi City, docketed as Case No. 01-88. After due hearing, and upon considering the report of a Revision Committee it had earlier created, the trial court rendered its verdict on 9 September 1989, finding Garcia to have obtained 6,376 votes as against Rivera's 6,222. Rivera appealed to the COMELEC. Through its First Division, the COMELEC sustained with modification the appealed judgment of the Regional Trial Court, as follows: 1. Affirming the Trial court's annulment of the Board of Canvasser's proclamation of Protestee-Appellant Juan G. Rivera as the duly elected Municipal Mayor; 2. Declaring Protestant-Appellee Juan Mitre Garcia II as the duly elected Municipal Mayor of Guinobatan, Albay, by a majority of ONE HUNDRED FIFTY THREE (153) votes over Protestee-Appellant Juan G. Rivera instead of a plurality of ONE HUNDRED FIFTY FOUR (154) votes; and 3. Protestee-Appellant Juan Garcia Rivera is hereby directed to turn over the Office of the Municipal Mayor to Protestant-Appellee Juan Mitre Garcia II. xxx xxx xxx Rivera's motion for reconsideration was acted upon by the COMELEC en banc. In its per curiam decision, dated 6 September 1990, the COMELEC denied the motion and re-affirmed the decision of its First Division declaring Garcia as the duly elected Mayor of Guinobatan, Albay but with a winning margin of one hundred twenty-three (123) votes over Rivera. Garcia commenced to discharge the duties and functions of Mayor of Guinobatan on 10 October 1990, by virtue of a writ of execution implementing the COMELEC decision of 6 September 1990. He continued as mayor until 10 November 1990 when he was served notice of this Court's temporary restraining order, issued upon Rivera's motion. Rivera filed the present petition on 5 October 1990 seeking annulment of the COMELEC en banc decision rendered in favor of respondent Garcia. He also prayed for the issuance of an order restraining the implementation of the said judgment, arguing that the same had not yet become final and executory as of the time this petition was filed. He cites Article IX-C, Section 2, Par. (2) of the 1987 323 Election Laws Election Process and/or Proceedings
Constitution, in relation to Part VII, Rule 39, Section 1 of the COMELEC Rules of Procedure. He also contends that since the COMELEC decision of 6 September 1990 has not yet become final and executory, the COMELEC has no authority to issue the assailed order and writ of execution. Petitioner maintains further that he has a period of thirty (30) days from 6 September 1990 or until 6 October 1990 within which to elevate the COMELEC decision, on certiorari, to this Court, pursuant to Section 1, Rule 39 of the COMELEC Rules of Procedure. He submits that the questioned COMELEC decision is not one that became final and executory unless restrained by this Court as provided under Section 3, Rule 39 of the COMELEC Rules, as said rule applies only to "decisions in preproclamation cases and petitions to deny due course or to disqualify a candidate, and postpone or suspend elections." Lastly, according to petitioner, Section 13(a) of Rule 18 (finality of Comelec decisions or resolutions) and Section 1 of Rule 39 (review by the Supreme Court of Comelec decisions, orders and rulings) of the COMELEC Rules of Procedure, should be read in the context of Section 7, Article IX-A of the Constitution (Supreme Court authority to review on certiorari a Comelec decision, order or ruling). Upon the other hand, respondent Garcia contends that: 1. The Constitution declares the decisions of the COMELEC on election contests involving elective municipal and barangay officials to be final, executory and not appealable (Article IX-C, Sec. 2, par. (2), second sentence, 1987 Constitution). 2. In an earlier petition for certiorari filed by Rivera with this Court, docketed as G.R. No. 87046, charging the Regional Trial Court of grave abuse of discretion in Case No. 01-88, wherein the same issue now raised in this petition was raised by Rivera, this Court dismissed the petition for lack of merit on 7 March 1989. 3. The supplemental ground raised by petitioner Rivera that the COMELEC committed grave abuse of discretion "by not excluding from the total votes of Garcia at least ten (10) votes which were misappreciated in Garcia's favor, outside of those objected votes already ruled upon by the COMELEC" does not deserve any consideration. If true, it is an error in judgment, correctible by appeal, not by a petition for certiorari pursuant to Rule 65, Section 1, of the Rules of Court. The environmental facts of this petition are similar to those in the Galido case (G.R. No. 95346, decided 18 January 1991). The issue of whether the decisions of the COMELEC in election contests involving elective municipal and barangay officials, being final and executory and not appealable, preclude the filing of a special civil action of certiorari, was decided in the said Galido case. The Court held: Under Article IX (A), Section 7 of the Constitution, which petitioner cites in support of this petition, it is stated: "(U)nless otherwise provided by the Constitution or by law, any decision, order, or ruling of each (Constitutional) Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." On the other hand, private respondent relies on Article IX, (C), Section 2 (2), paragraph 2 of the Constitution which provides that decisions, final orders, or rulings of the Commission on Elections in contests involving elective municipal and barangay offices shall be final, executory and not appealable. (Emphasis supplied) We resolve this issue in favor of the petitioner. The fact that decisions, final orders or rulings of the Commission on Elections in contests involving elective municipal and barangay offices are final, executory and not appealable, does not preclude a recourse to this Court by way of a special civil action of certiorari. The proceedings in the Constitutional Commission on this matter are enlightening. Thus MR. FOZ. So, the amendment is to delete the word "inappealable". MR. REGALADO. Before that, on page 26, line 26, we should have a transposition because decisions are always orders. So, it should read: "However, decisions, final orders or rulings," to distinguish them from interlocutory orders. ". . . of the Commission on Elections on municipal and barangay officials shall be final and IMMEDIATELY executory." That would be my proposed amendment. MR. FOZ. Accepted, Mr. Presiding Officer. MR. REGALADO. It is understood, however, that while these decisions with respect to barangay and municipal officials are final and immediately executory and, therefore, not appealable, that does not rule out the possibility of an original special civil action for certiorari, prohibition, or mandamus, as the case may be, under Rule 65 of the Rules of Court.
324
MR. FOZ. That is understood, Mr. Presiding Officer. MR. REGALADO. At least it is on record. Thank you, Mr. Presiding Officer. Earlier, the Court had occasion to resolve the same issue in the case of Flores vs. COMELEC (G.R. No. 89604, 20 April 1990) where the Court stated: Obviously, the provision of Article IX-C, Section 2(2) of the Constitution that "decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable" applies only to questions of fact and not of law. That provision was not intended to divest the Supreme Court of its authority to resolve questions of law as inherent in the judicial power conferred upon it by the Constitution. We eschew a literal reading of that provision that would contradict such authority. Actually, the main thrust of the present petition for certiorari is that the respondent COMELEC en banc committed grave abuse of discretion when it affirmed the decision of its First Division, promulgated on 2 May 1990, annulling the proclamation of the petitioner as the duly elected Mayor of Guinobatan, Albay and when it did not exclude from the total votes of Garcia at least ten (10) votes which were allegedly misappreciated in Garcia's favor. We have closely scrutinized the challenged COMELEC decision and find that the said decision was not arrived at capriciously or whimsically by respondent COMELEC. A painstaking re-evaluation of the questioned 67 ballots was made by the COMELEC en banc. In fact, fourteen (14) ballots originally adjudicated in Garcia's favor were overruled by the Commission en banc, thus reducing the number of votes in his favor to 894 votes out of the 2,445 contested ballots. On the other hand, 16 ballots were added in Rivera's favor, thus increasing the votes in his favor to 1,087 votes. Moreover, the appreciation and re-evaluation of ballots are factual determinations. It is settled that in a petition for certiorari, findings of fact of administrative bodies are final unless grave abuse of discretion has marred such factual determinations. We find none in this case. ACCORDINGLY, the Court resolved to DISMISS the petition. The temporary restraining order issued on 20 November 1990 is hereby LIFTED. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-57574 April 20, 1983 ANTONIO S. MIRO, petitioner, vs. COMMISSION ON ELECTIONS and CAYETANO B. CAUAN, respondents. Melanio T. Singson for petitioner. Hilario L. Aquino for respondents.
DE CASTRO, J.: Petitioner seeks the reversal of the decision of the Commission on Elections which affirmed the order dated May 27, 1980 of the Court of First Instance of Isabela, Branch III, dismissing the petition of protest filed by him in Election Case No. III-320 for lack of jurisdiction. The records show that on February 9, 1980, petitioner Miro filed the election protest before the Court of First Instance, alleging, inter alia: 3. That on ________, 1980, the Municipal Board of Canvassers of San Pablo, Isabela, declared the herein contestee Cayetano B. Cauan (who) obtained 3,304 votes as against 2,133 votes adjudicated unto herein contestant Antonio S. Miro and therefore proclaimed said Cayetano B. Cauan as the Municipal Mayor-elect of San Pablo, Isabela; xxx xxx xxx 7. That the petition was presented within the period fixed by law,
1
On March 11, 1980, private respondent as protestee filed his answer with counter protest and motion to dismiss, admitting that he was proclaimed as the duly elected candidate for Mayor of San Pablo, Isabela, submitting therein, as annex of said answer, a copy of the Certificate of Canvass and Proclamation issued by the Municipal Board of Canvassers, and praying that the case be dismissed on the ground that the jurisdictional allegations that contestant has filed a certificate of candidacy and of the date of proclamation have not 2 been alleged in the petition of protest. On May 27, 1980, the Court of First Instance issued an order dismissing the election protest on the sole ground that the failure of the protestants to allege the date of proclamation of the protestee renders the court without jurisdiction to try and decide the protest, citing 4 the case of Yumul vs. Palma. From the aforesaid order of dismissal, petitioners appealed to the COMELEC, which as adverted to above, affirmed the order of dismissal, stating that the "omission is a fatal defect as it is jurisdictional; in other words, it (the CFI) did not acquire jurisdiction to hear 5 and decide the case from the very start and the only mandatory course of action for it to take is to dismiss, as it did, the said protest." The law applicable is Section 190 of P.D. No. 1296, otherwise known as the Election Code of 1978, which provides that: Sec. 190. Election contests for municipala and municipal district offices.A sworn petition contesting the election of a municipal or municipal district officer shall be filed with the proper Court of First Instance by any candidate for the same office who has duly filed a certificate of candidacy, within ten (10) days after the proclamation of the election. This provision is amplified by Section 2, Rule 11 of Resolution No. 1451, promulgated by COMELEC on February 26, 1980 under the authority of the 1978 Election Code in relation to Section 18 of Batas Pambansa Blg. 52, thus: Sec. 2. Filing of election contests. A sworn petition contesting the election of any municipal or municipal district officer-elect shall be filed with the proper Court of First Instance, or mailed at the post office as registered matter addressed to said Court, together with twelve (12) legible copies thereof, by any candidate for the same office who 326 Election Laws Election Process and/or Proceedings
3
had duly filed a certificate of candidacy and who was voted upon in the election. Each contest shall refer exclusively to one office but contests for offices of the Sangguniang Bayan may be consolidated in one case. We can readily see from the foregoing that in order that the Court of First Instance may be able to exercise special or limited jurisdiction in election cases, the following special or jurisdictional facts must be alleged in the election protest, to wit: a. that the protestant was a candidate who has duly filed a certificate of candidacy and was voted upon in the election; b. that the protestee has been proclaimed in the said election; and c. that the petition was filed within ten (10) days after the proclamation. There is no question that the petition of protest contains averments that sufficiently comply with the first two (2) requisites of jurisdiction. The only question hinges on the third requisite. Paragraph 7 of petitioner's petition of protest claims that the same "was presented within the period fixed by law". Generally, such averment is not sufficient assurance that the petition was indeed filed on time, absent a showing of the date to reckon the timeliness of the filing of the petition. Thus, in the Yumul case, cited by respondent court, the latter dismissed the case for lack of jurisdiction, it appearing that the motion of protest merely shows that the general elections were held on April 5, 1928 and the motion of protest was filed on April 24, 1928, or twenty (20) days after the election day, such that the court was unable to determine whether it was filed within two (2) weeks following the proclamation. Where, however, even without a statement of the date of the proclamation, the timeliness of the filing of the position of protest could be 6 determined in some way, the court must not close its eyes to the facts and dismiss the case by mere technicality. Thus, even in the Yumul case, the court said that the protestant's compliance with the mandatory provision of law requiring that an election protest must be filed within two (2) weeks following the date of the elected candidate's proclamation must appear either expressly or by implication. In other words, where the court, on the basis of the records of the case, can infer that the case was filed on time, the court is with jurisdiction to try and decide the case. In this case, We hold that the absence of averment as regards the date of the proclamation, is not fatal so as to prevent the court from acquiring jurisdiction over petitioner's petition of protest. The mere fact that the petition of protest was filed with the Court of First Instance on February 9, 1980 as the records will show, is presumptive of the fact that the petition of protest was filed within the ten (10) day period, considering that the elections were held on January 30, 1980. Respondent-protestee's admission in his answer with counterprotest and motion to dismiss of his proclamation, attaching thereto the certificate of canvass and proclamation showing that he was proclaimed on January 31, 1980 erases all doubts as to the timeliness of the filing of the protest. By these facts, therefore, it becomes undisputable that the petition of protest was filed on time and respondent court should not have dismissed the case. This is an opportune time to recall the recognized principle that laws governing election protests must be liberally interpreted to the end 7 that the popular will express in the election of public officers will not, by reason of purely technical objections, be defeated. WHEREFORE, the questioned decision of the Commission on Elections is hereby set aside, and the Court of First Instance of Isabela, Branch III, hereby ordered to give due course to the petition. No costs. SO ORDERED.
327
G.R. No. 125249 February 7, 1997 JIMMY S. DE CASTRO, Petitioner, vs. THE COMMISSION ON ELECTIONS and AMANDO A. MEDRANO, respondent
HERMOSISIMA, JR., J.: Before us is a petition for certiorari raising twin issues as regards the effect of the contestant's death in an election protest: Is said contest a personal action extinguished upon the death of the real party in interest? If not, what is the mandatory period within which to effectuate the substitution of parties? The following antecedent facts have been culled from the pleadings and are not in dispute: Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during the May 8, 1995 elections. In the same elections, private respondent was proclaimed Vice-Mayor of the same municipality. On May 19, 1995, petitioner's rival candidate, the late Nicolas M. Jamilla, filed an election protest before the Regional Trial Court of 2 Pinamalayan, Oriental Mindoro. During the pendency of said contest, Jamilla died. Four days after such death or on December 19, 1995, the trial court dismissed the election protest ruling as it did that "[a]s this case is personal, the death of the protestant extinguishes the case itself. The issue or 4 issues brought out in this protest have become moot and academic". On January 9, 1995, private respondent learned about the dismissal of the protest from one Atty. Gaudencio S. Sadicon, who, as the late Jamilla's counsel, was the one who informed the trial court of his client's demise. On January 15, 1996, private respondent filed his Omnibus Petition/Motion (For Intervention and/or Substitution with Motion for 5 6 Reconsideration). Opposition thereto was filed by petitioner on January 30, 1996. In an Order dated February 14, 1996, the trial court denied private respondent's Omnibus Petition/Motion and stubbornly held that an election protest being personal to the protestant, is ipso facto terminated by the latter's death. Unable to agree with the trial court's dismissal of the election protest., private respondent filed a petition for certiorari and mandamus before the Commission on Elections (COMELEC); private respondent mainly assailed the trial court orders as having been issued with grave abuse of discretion. COMELEC granted the petition for certiorari and mandamus. It ruled that an election contest involves both the private interests of the rival candidates and the public interest in the final determination of the real choice of the electorate, and for this reason, an election contest necessarily survives the death of the protestant or the protestee. We agree. It is true that a public office is personal to the public officer and is not a property transmissible to his heirs upon death. Thus, applying the doctrine of actio personalis moritur cum persona, upon the death of the incumbent, no heir of his may be allowed to continue holding his office in his place. But while the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the protestant or to the protestee such that the death of either would oust the court of all authority to continue the protest proceedings. 328 Election Laws Election Process and/or Proceedings
9 8 7 3 1
An election contest, after all, involves not merely conflicting private aspirations but is imbued with paramount public interests. As we 10 have held in the case of Vda. de De Mesa v. Mencias: . . . It is axiomatic that an election contest, involving as it does not only the adjudication and settlement of the private interests of the rival candidates but also the paramount need of dispelling once and for all the uncertainty that beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the offices within their gift, is a proceeding imbued with public interest which raises it onto a plane over and above ordinary civil actions. For this reason, broad perspectives of public policy impose upon courts the imperative duty to ascertain by all means within their command who is the real candidate elected in as expeditious a manner as possible, without being fettered by technicalities and procedural barriers to the end that the will of the people may not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So inextricably intertwined are the interests of the contestants and those of the public that there can be no gainsaying the logic of the proposition that even the voluntary cessation in office of the protestee not only does not ipso facto divest him of the character of an adversary in the contest inasmuch as he retains a party interest to keep his political opponent out of the office and maintain therein his successor, but also does not in any manner impair or detract from the jurisdiction of the court to pursue the proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba, G.R. L-13206). Upon the same principle, the death of the protestee De Mesa did not abate the proceedings in the election protest filed against him, and it may stated as a rule that an election contest survives and must be prosecuted to final 11 judgment despite the death of the protestee. The death of the protestant, as in this case, neither constitutes a ground for the dismissal of the contest nor ousts the trial court of its 12 jurisdiction to decide the election contest. Apropos is the following pronouncement of this court in the case of Lomugdang v. Javier: Determination of what candidate has been in fact elected is a matter clothed with public interest, wherefore, public policy demands that an election contest, duly commenced, be not abated by the death of the contestant. We have squarely so rule in Sibulo Vda. de Mesa vs. Judge Mencias, G.R. No. L-24583, October 29, 1966, in the same spirit that led this Court to hold that the ineligibility of the protestant is not a defense (Caesar vs. Garrido, 53 Phil. 57), and that the protestee's cessation in office is not a ground for the dismissal of the contest nor detract the Courts 13 jurisdiction to decide the case (Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez, 62 Phil. 584). The asseveration of petitioner that private respondent is not a real party in interest entitled to be substituted in the election protest in place of the late Jamilla, is utterly without legal basis. Categorical was our ruling in Vda. de Mesa and Lomugdang that: . . . the Vice Mayor elect has the status of a real party in interest in the continuation of the proceedings and is entitled to intervene therein. For if the protest succeeds and the Frotestee is unseated, the Vice-Mayor succeeds to the office 14 of Mayor that becomes vacant if the one duly elected can not assume the post. To finally dispose of this case, we rule that the filing by private respondent of his Omnibus Petition/Motion on January 15, 1996, well within a period of thirty days from December 19, 1995 when Jamilla's counsel informed the trial court of Jamilla's death, was in compliance with Section 17, Rule 3 of the Revised Rules of Court. Since the Rules of Court, though not generally applicable to election 15 cases, may however be applied by analogy or in a suppletory character, private respondent was correct to rely thereon. The above jurisprudence is not ancient; in fact these legal moorings have been recently reiterated in the 1991 case of De la Victoria vs. 16 COMELEC. If only petitioner's diligence in updating himself with case law is as spirited as his persistence in pursuing his legal asseverations up to the highest court of the land, no doubt further derailment of the election protest proceedings could have been avoided. WHEREFORE, premises considered, the instant petition for certiorari is hereby DISMISSED Costs against petitioner. SO ORDERED.
329
Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 100113 September 3, 1991 RENATO CAYETANO, Petitioner, vs. CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, Respondents.
PARAS, J.: We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in this case would indubitably have a profound effect on the political aspect of our national existence.chanroblesvirtualawlibrary chanrobles virtual law library The 1987 Constitution provides in Section 1 (1), Article IX-C: There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be naturalborn citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied) The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides: chanrobles virtual law library There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college degree. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.' (Emphasis supplied) chanrobles virtual law library Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive office.chanroblesvirtualawlibrary chanrobles virtual law library Black defines "practice of law" as: The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. An attorney engages in the practice of law by maintaining an office where he is held out to be-an attorney, using a letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.) The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when he: ... for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs 330 Election Laws COMELEC
any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852) This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated: The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied) Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours) The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and public service. One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312) Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledg e or skill." (111 ALR 23) chanrobles virtual law library The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law." MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement? chanrobles virtual law library THE PRESIDING OFFICER (Mr. Jamir).chanroblesvirtualawlibrary chanrobles virtual law library The Commissioner will please proceed.chanroblesvirtualawlibrary chanrobles virtual law library MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications provided for by Section I is that "They must be Members of the Philippine Bar" - I am quoting from the provision - "who have been engaged in the practice of law for at least ten years". To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret 331 Election Laws COMELEC
this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective work within COA, then they are qualified to be considered for appointment as members or commissioners, even chairman, of the Commission on Audit.chanroblesvirtualawlibrary chanrobles virtual law library This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on the floor so that this interpretation may be made available whenever this provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken up. MR. OPLE. Will Commissioner Foz yield to just one question.chanroblesvirtualawlibrary chanrobles virtual law library MR. FOZ. Yes, Mr. Presiding Officer.chanroblesvirtualawlibrary chanrobles virtual law library MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set forth in the Article on the Commission on Audit? MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have the necessary qualifications in accordance with the Provision on qualifications under our provisions on the Commission on Audit. And, therefore, the answer is yes. MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.chanroblesvirtualawlibrary chanrobles virtual law library MR. FOZ. Yes, Mr. Presiding Officer.chanroblesvirtualawlibrary chanrobles virtual law library MR. OPLE. Thank you.chanroblesvirtualawlibrary chanrobles virtual law library ... ( Emphasis supplied) Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis supplied) chanrobles virtual law library Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, alth ough many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).chanroblesvirtualawlibrary chanrobles virtual law library At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be org anized as professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys. In most firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.).chanroblesvirtualawlibrary chanrobles virtual law library The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable.(Wolfram, op. cit.).chanroblesvirtualawlibrary chanrobles virtual law library The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception of the legal profession. (Ibid.).chanroblesvirtualawlibrary chanrobles virtual law library In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise: "Even today, 332 Election Laws COMELEC
there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work also know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in trying cases. The business lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).chanroblesvirtualawlibrary chanrobles virtual law library In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as representing a client before an administrative agency. (Wolfram, supra, p. 687).chanroblesvirtualawlibrary chanrobles virtual law library By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types - a litigator who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a source of employment. (Ibid.).chanroblesvirtualawlibrary chanrobles virtual law library Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers' work the constraints are imposed both by the nature of the client and by the way in which the lawyer is organized into a social unit to perform that work. The most common of these roles are those of corporate practice and government legal service. (Ibid.).chanroblesvirtualawlibrary chanrobles virtual law library In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice, a departure from the traditional concept of practice of law. We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and other professional groups, in particular those members participating in various legal-policy decisional contexts, are finding that understanding the major emerging trends in corporation law is indispensable to intelligent decisionmaking.chanroblesvirtualawlibrary chanrobles virtual law library Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications of the corporate law research function accompanied by an accelerating rate of information accumulation. The recognition of the need for such improved corporate legal policy formulation, particularly "model-making" and "contingency planning," has impressed upon us the inadequacy of traditional procedures in many decisional contexts.chanroblesvirtualawlibrary chanrobles virtual law library In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional factors, the appraisal of major trends, the necessity of estimating the consequences of given courses of action, and the need for fast decision and response in situations of acute danger have prompted the use of sophisticated concepts of information flow theory, operational analysis, automatic data processing, and electronic computing equipment. Understandably, an improved decisional structure must stress the predictive component of the policy-making process, wherein a "model", of the decisional context or a segment thereof is developed to test projected alternative courses of action in terms of futuristic effects flowing therefrom.chanroblesvirtualawlibrary chanrobles virtual law library Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the subject of corporate finance law has received relatively little organized and formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity.chanroblesvirtualawlibrary chanrobles virtual law library Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved through an early introduction to multi-variable decisional context and the various approaches for handling such problems. Lawyers, particularly with either a master's or doctorate degree in business administration or management, functioning at the legal policy level of decision-making now have some appreciation for the concepts and analytical techniques of other professions which are currently engaged in similar types of complex decisionmaking.chanroblesvirtualawlibrary chanrobles virtual law library Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney because of the complex legal implications that arise from each and every necessary step in securing and maintaining 333 Election Laws COMELEC
the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).chanroblesvirtualawlibrary chanrobles virtual law library In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the tycoons and magnates of business and industry.chanroblesvirtualawlibrary chanrobles virtual law library Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does. For one, the number of attorneys employed by a single corporation will vary with the size and type of the corporation. Many smaller and some large corporations farm out all their legal problems to private law firms. Many others have in-house counsel only for certain matters. Other corporation have a staff large enough to handle most legal problems in-house.chanroblesvirtualawlibrary chanrobles virtual law library A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research, tax laws research, acting out as corporate secretary (in board meetings), appearances in both courts and other adjudicatory agencies (including the Securities and Exchange Commission), and in other capacities which require an ability to deal with the law.chanroblesvirtualawlibrary chanrobles virtual law library At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the corporation he is representing. These include such matters as determining policy and becoming involved in management. ( Emphasis supplied.) chanrobles virtual law library In a big company, for example, one may have a feeling of being isolated from the action, or not understanding how one's work actually fits into the work of the orgarnization. This can be frustrating to someone who needs to see the results of his work first hand. In short, a corporate lawyer is sometimes offered this fortune to be more closely involved in the running of the business.chanroblesvirtualawlibrary chanrobles virtual law library Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). Some large MNCs provide one of the few opportunities available to corporate lawyers to enter the international law field. After all, international law is practiced in a relatively small number of companies and law firms. Because working in a foreign country is perceived by many as glamorous, tills is an area coveted by corporate lawyers. In most cases, however, the overseas jobs go to experienced attorneys while the younger attorneys do their "international practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p. 4).chanroblesvirtualawlibrary chanrobles virtual law library This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of Harvardeducated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).chanroblesvirtualawlibrary chanrobles virtual law library Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking of the traditional law teaching method of confining the subject study to the Corporation Code and the Securities Code but an incursion as well into the intertwining modern management issues.chanroblesvirtualawlibrary chanrobles virtual law library Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into current advances which are of particular significance to the corporate counsel; (2) an introduction to usable disciplinary skins applicable to a corporate counsel's management responsibilities; and (3) a devotion to the organization and management of the legal function itself.chanroblesvirtualawlibrary chanrobles virtual law library These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for the corporate counsel's total learning.chanroblesvirtualawlibrary chanrobles virtual law library Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the corporate lawyer reviews the globalization process, including the resulting strategic repositioning that the firms he provides counsel for are required to make, and the need to think about a corporation's; strategy at multiple levels. The salience of the nation-state is being reduced as firms deal both with global multinational entities and simultaneously with subnational governmental units. Firms increasingly collaborate not only with public entities but with each other - often with those who are competitors in other arenas.
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Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The modem corporate lawyer has gained a new role as a stakeholder - in some cases participating in the organization and operations of governance through participation on boards and other decision-making roles. Often these new patterns develop alongside existing legal institutions and laws are perceived as barriers. These trends are complicated as corporations organize for global operations. ( Emphasis supplied) The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of technology. New collaborative arrangements for promoting specific technologies or competitiveness more generally require approaches from industry that differ from older, more adversarial relationships and traditional forms of seeking to influence governmental policies. And there are lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and business Japan's MITI is world famous. (Emphasis supplied) chanrobles virtual law library Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within the managerial structure of all kinds of organizations. Effectiveness of both long-term and temporary groups within organizations has been found to be related to indentifiable factors in the group-context interaction such as the groups actively revising their knowledge of the environment coordinating work with outsiders, promoting team achievements within the organization. In general, such external activities are better predictors of team performance than internal group processes. In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of corporations are challenged. Current research is seeking ways both to anticipate effective managerial procedures and to understand relationships of financial liability and insurance considerations. (Emphasis supplied) chanrobles virtual law library Regarding the skills to apply by the corporate counsel, three factors are apropos: First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both planning and pressing immediate problems. An understanding of the role of feedback loops, inventory levels, and rates of flow, enable users to simulate all sorts of systematic problems - physical, economic, managerial, social, and psychological. New programming techniques now make the system dynamics principles more accessible to managers - including corporate counsels. (Emphasis supplied) Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a law department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement, and minimize the cost and risk involved in managing a portfolio of cases. (Emphasis supplied) Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators in all lands of negotiations. All integrated set of such tools provide coherent and effective negotiation support, including hands-on on instruction in these techniques. A simulation case of an international joint venture may be used to illustrate the point.chanroblesvirtualawlibrary chanrobles virtual law library [Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration, thus: Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are being considered and made. Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal consequences attach. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change to stay competitive in a global, interdependent environment. The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a global economy work. Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects of the firm's strategic issues, including structuring its global operations, managing improved relationships with an increasingly diversified body of employees, managing expanded liability exposure, creating new and varied interactions with public decision-makers, coping internally with more complex make or by decisions.chanroblesvirtualawlibrary chanrobles virtual law library
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This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate counsel nor to give him a full sense of how the legal system shapes corporate activities. And even if the corporate lawyer's aim is not the understand all of the law's effects on corporate activities, he must, at the very least, also gain a working knowledge of the management issues if only to be able to grasp not only the basic legal "constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4).chanroblesvirtualawlibrary chanrobles virtual law library The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4). Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years.chanroblesvirtualawlibrary chanrobles virtual law library On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of the COMELEC.chanroblesvirtualawlibrary chanrobles virtual law library Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void.chanroblesvirtualawlibrary chanrobles virtual law library Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years. (p. 124, Rollo) chanrobles virtual law library After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama, which involved getting acquainted with the laws of member-countries negotiating loans and coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of an investment bank and subsequently of a business conglomerate, and since 1986, has rendered services to various companies as a legal and economic consultant or chief executive officer. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's Conference for Human Development, has worked with the under privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal knowledge as a member of the Davide Commission, a quast judicial body, which conducted numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), and Chairman of its Committee on Accountability of Public Officers, for which he was cited by the President of the Commission, Justice Cecilia Muoz-Palma for "innumerable amendments to reconcile government functions with individual freedoms and public accountability and the party-list system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied) Just a word about the work of a negotiating team of which Atty. Monsod used to be a member. In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to meet the various contingencies that arise during a negotiation. Besides top officials of the Borrower concerned, there are the legal officer (such as the legal counsel), the finance manager, and an operations officer (such as an official involved in negotiating the contracts) who comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied) chanrobles virtual law library After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan transaction is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's representation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p. 13).chanroblesvirtualawlibrary chanrobles virtual law library In the same vein, lawyers play an important role in any debt restructuring program. For aside from performing the tasks of legislative drafting and legal advising, they score national development policies as key factors in maintaining their countries' sovereignty. (Condensed from the work paper, entitled "Wanted: Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal adviser of the United States Agency for 336 Election Laws COMELEC
International Development, during the Session on Law for the Development of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31, 1973). ( Emphasis supplied) Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand expertise in the law of contracts, in legislation and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may work with an international business specialist or an economist in the formulation of a model loan agreement. Debt restructuring contract agreements contain such a mixture of technical language that they should be carefully drafted and signed only with the advise of competent counsel in conjunction with the guidance of adequate technical support personnel. (See International Law Aspects of the Philippine External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied) chanrobles virtual law library A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which determines the contractual remedies for a failure to perform one or more elements of the contract. A good agreement must not only define the responsibilities of both parties, but must also state the recourse open to either party when the other fails to discharge an obligation. For a compleat debt restructuring represents a devotion to that principle which in the ultimate analysis is sine qua non for foreign loan agreements-an adherence to the rule of law in domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, men learn that bustle and bush are not the equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265). Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor - verily more than satisfy the constitutional requirement - that he has been engaged in the practice of law for at least ten years.chanroblesvirtualawlibrary chanrobles virtual law library Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said: Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. (emphasis supplied) No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it stated: It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Law. The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess the qualifications required by law. ( Emphasis supplied) The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200) chanrobles virtual law library The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides: The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.chanroblesvirtualawlibrary chanrobles virtual law library Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the traditional or stereotyped notion of law practice, as distinguished from the modern concept of the practice of law, Election Laws COMELEC
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which modern connotation is exactly what was intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would require generally a habitual law practice, perhaps practised two or three times a week and would outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from the constitutional intent. Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a definition of law practice which really means nothing because the definition says that law practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as evident from my statement that the definition of law practice by "traditional areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined.chanroblesvirtualawlibrary chanrobles virtual law library Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law, or in advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is different from the acts of persons practising law, without first becoming lawyers.chanroblesvirtualawlibrary chanrobles virtual law library Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition be brought against the President? And even assuming that he is indeed disqualified, how can the action be entertained since he is the incumbent President? chanrobles virtual law library We now proceed: chanrobles virtual law library The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined that he possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown.chanroblesvirtualawlibrary chanrobles virtual law library Additionally, consider the following: (1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the Commission, and thus in effect confirm the appointment? Clearly, the answer is in the negative.chanroblesvirtualawlibrary chanrobles virtual law library (2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is likewise clear.chanroblesvirtualawlibrary chanrobles virtual law library (3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirm a Presidential nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate. Finally, one significant legal maxim is: We must interpret not by the letter that killeth, but by the spirit that giveth life. Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that No blade shall touch his skin; chanrobles virtual law library No blood shall flow from his veins. When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or three inches away from in front of Samson's eyes. This blinded the man. Upon hearing of what had happened to her beloved, Delilah was beside herself with anger, and fuming with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement.chanroblesvirtualawlibrary chanrobles virtual law library In view of the foregoing, this petition is hereby DISMISSED. SO ORDERED. 338 Election Laws COMELEC
Republic of the Philipppines SUPREME COURT Manila EN BANC [G.R. No. 153945. February 4, 2003] REYNATO BAYTAN, REYNALDO BAYTAN and ADRIAN BAYTAN, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. DECISION CARPIO, J.: The Casechanroblesvirtuallawlibrary Challenged in this petition for certiorari[1] with prayer for temporary restraining order and preliminary injunction is the Resolution dated June 3, 2002[2] of the Commission on Elections (COMELEC for brevity) en banc in E.O. Case No. 97-503. In its assailed Resolution, the COMELEC en banc denied the motion to reconsider Minute Resolution No. 00-2281 dated November 9, 2000[3] ordering the Law Department to file criminal cases for double registration against petitioners Reynato Baytan, Reynaldo Baytan and Adrian Baytan (petitioners for brevity). The Antecedents chanroblesvirtuallawlibrary On June 15, 1997, petitioners were on their way to register for the May 1998 elections when they met the newly elected Barangay Captain, Roberto Ignacio (Ignacio for brevity), in Barangay 18, Zone II of Cavite City. Ignacio led petitioners to register in Precinct No. 83-A of Barangay 18. Petitioners registered in this precinct as evidenced by Voters Registration Records Nos. 41762473, 41762472 and 41762470.chanroblesvirtuallawlibrary When petitioners returned home, they wondered why the registrants in this precinct looked unfamiliar to them. This prompted petitioners to return to the registration center to study the precinct map of Barangay 18. They then realized that their residence is situated within the jurisdiction of Barangay 28. Thus, petitioners proceeded to Precinct 129-A of Barangay 28 and registered anew on June 22, 1997 as evidenced by Voters Registration Records Nos. 42662969, 42662968 and 42662917.chanroblesvirtuallawlibrary Subsequently, petitioners sent a letter dated August 21, 1997 to former COMELEC Assistant Executive Director Jose Pio O. Joson and furnished a copy thereof to COMELEC Registrar Francisco Trias. In this letter, petitioners requested for advice on how to cancel their previous registration. They also explained the reason and circumstances of their second registration and expressed their intention to redress the error.chanroblesvirtuallawlibrary On September 16, 1997, the Election Officer of Cavite City forwarded copies of petitioners Voters Registration Records to the Provincial Election Supervisor, Atty. Juanito V. Ravanzo (Ravanzo for brevity), for evaluation. Ravanzo endorsed the matter to the Regional Director for prosecution. Eventually, the Law Department endorsed the case to Ravanzo for resolution.chanroblesvirtuallawlibrary On January 10, 1998, Ravanzo recommended filing an information for double registration against petitioners. In an en banc meeting held on November 09, 2000, the COMELEC in its Minute Resolution No. 00-2281 affirmed the recommendation of Ravanzo. Petitioners moved for reconsideration. The COMELEC en banc denied the motion and disposed as follows:chanroblesvirtuallawlibrary WHEREFORE, premises considered, the En Banc resolution dated November 9, 2000 is hereby AFFIRMED. The Law Department is hereby directed to file the proper information against respondents for violation of Art. XXII, Sec. 261, par. (y) sub-par. (5) of the Omnibus Election Code.chanroblesvirtuallawlibrary Hence, the instant petition. The Issueschanroblesvirtuallawlibrary Petitioners contend that the COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in chanroblesvirtuallawlibrary
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1. Recommending the prosecution of petitioners for double registration despite clear and convincing evidence on record that they had no intention of committing said election offense;chanroblesvirtuallawlibrary 2. Not considering the letter dated August 21, 1997 addressed to the COMELEC Assistant Director of Cavite City as substantial compliance with the requirement of the law for cancellation of previous registration; andchanroblesvirtuallawlibrary 3. Taking cognizance of the case in the first instance in violation of Section 3, Article IX-C of the Constitution.chanroblesvirtuallawlibrary In sum, petitioners insist they are innocent of any wrongdoing in their act of registering twice on different days in two different precincts. Petitioners argue that they did not intend to perpetrate the act prohibited, and therefore they should be exculpated. They claim honest mistake and good faith in registering twice. Petitioners claim they made the first registration because of the intervention and instigation of Ignacio.chanroblesvirtuallawlibrary Petitioners theorize that their August 21, 1997 letter to the election registrar of Cavite City informing him of the lapse and asking how to rectify the same constitutes substantial compliance with the Omnibus Election Codes requirement of cancellation of prior registration. They further implore a liberal construction of the laws on election offenses since almost five years had lapsed from the date of the commission of the offense on June 15, 1997. They claim the case is about to prescribe under the Election Code.chanroblesvirtuallawlibrary Lastly, petitioners fault the COMELEC en banc for assuming original jurisdiction over the case in contravention of Section 3, Article IX-C of the Constitution. Petitioners argue that this constitutional provision requires that election cases must first be heard and decided by a Division before assumption of jurisdiction by the COMELEC en banc. The Courts Rulingchanroblesvirtuallawlibrary The petition is bereft of merit.chanroblesvirtuallawlibrary First and Second Issues: Whether the criminal cases should be dismissed on the ground of lack of intent and substantial compliance with the requirement of cancellation of previous registration.chanroblesvirtuallawlibrary In Minute Resolution No. 00-2281 dated November 9, 2000, the COMELEC en banc affirmed the recommendation of the investigating officer. The COMELEC thus directed its Law Department to file the necessary information against petitioners for violation of Article XXII, SEC. 261 (y) (5) of the Election Code which reads: chanroblesvirtuallawlibrary SEC. 261. Prohibited Acts. The following shall be guilty of an election offense:chanroblesvirtuallawlibrary (y) On Registration of Voters:chanroblesvirtuallawlibrary (5) Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration.chanroblesvirtuallawlibrary Petitioners filed a motion for reconsideration to which the COMELEC en banc issued the assailed Resolution dated June 3, 2002 affirming the Minute Resolution. chanroblesvirtuallawlibrary The grant by the Constitution to the COMELEC of the power to investigate and prosecute election offenses is intended to enable the COMELEC to assure the people of free, orderly, honest, peaceful and credible elections. This grant is an adjunct to the COMELECs constitutional duty to enforce and administer all election laws. Failure by the COMELEC to exercise this power could result in the frustration of the true will of the people and make an idle ceremony of the sacred right and duty of every qualified citizen to vote.[4]chanroblesvirtuallawlibrary Petitioners lose sight of the fact that the assailed resolutions were issued in the preliminary investigation stage. A preliminary investigation is essentially inquisitorial and is only the means to discover who may be charged with a crime, its function being merely to determine probable cause.[5] All that is required in the preliminary investigation is the determination of probable cause to justify the holding of petitioners for trial. By definition, probable cause is chanroblesvirtuallawlibrary x x x a reasonable ground of presumption that a matter is, or may be, well founded x x x such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe or entertain an honest or strong suspicion that a thing is so. The term does not mean `actual or positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.[6]chanroblesvirtuallawlibrary 340 Election Laws COMELEC
There is no question that petitioners registered twice on different days and in different precincts without canceling their previous registration. Aside from this, the COMELEC found certain circumstances prevailing in the case sufficient to warrant the finding of probable cause. The COMELEC noted that petitioners wrote down their address in Precinct No. 83-A of Barangay 18 as No. 709 T. Gomez Extension St., Barangay 18-Maya, Cavite City. However, in Precinct No. 129-A of Barangay 28, petitioners registered as residents of No. 709 Magcawas St., Barangay 28-Taurus, Caridad, Cavite City. The COMELEC noted further that the affidavits submitted by petitioners contained glaring inconsistencies. Petitioners claimed that Ignacio led them to the wrong precinct to register. However, Ignacios affidavit stated that while he led them to the voting precinct of Barangay 18, he immediately left the area not knowing that petitioners registered in the wrong barangay. Contrary to petitioners sworn statements, Aurora Baytan, mother of petitioners, had another version. She claimed in her affidavit that on June 15, 1997, Ignacio went to their house to inform them about the redefinition of their barangays territorial jurisdiction. Right then and there, Ignacio brought her sons to Barangay 18 to register.chanroblesvirtuallawlibrary The COMELEC also pointed out that since double registration is malum prohibitum, petitioners claim of lack of intent to violate the law is inconsequential. Neither did the COMELEC consider petitioners letter dated August 22, 1997 as an application to cancel their previous registration. The COMELEC explained that this letter was sent after their second registration was accomplished and after the election officer of Cavite City had already reported their act of double registration to a higher official. chanroblesvirtuallawlibrary All told, a reasonably prudent man would readily conclude that there exists probable cause to hold petitioners for trial for the offense of double registration.chanroblesvirtuallawlibrary Moreover, petitioners claims of honest mistake, good faith and substantial compliance with the Election Codes requirement of cancellation of previous registration are matters of defense best ventilated in the trial proper rather than at the preliminary investigation.[7] The established rule is that a preliminary investigation is not the occasion for the full and exhaustive display of the parties evidence. It is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and the accused is probably guilty thereof.[8] chanroblesvirtuallawlibrary It is also well-settled that the finding of probable cause in the prosecution of election offenses rests in the COMELECs sound discretion. The COMELEC exercises the constitutional authority to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offenses and malpractices.[9] Generally, the Court will not interfere with such finding of the COMELEC absent a clear showing of grave abuse of discretion. This principle emanates from the COMELECs exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law.[10]chanroblesvirtuallawlibrary We also cannot accept petitioners plea for a liberal construction of the laws on the ground of prescription. Prescription of the crime or offense is the forfeiture or loss of the right of the State to prosecute the offender after the lapse of a certain time.[11] chanroblesvirtuallawlibrary Section 267 of the Election Code provides that election offenses shall prescribe after five years from the date of their commission. In this case, the offense of double registration allegedly occurred on June 22, 1997 when petitioners registered for a second time in a different precinct without canceling their previous registration. At this point, the period of prescription for the alleged offense started to run.chanroblesvirtuallawlibrary However, prescription is interrupted when proceedings are instituted against the offender. Specifically, the period of prescription is interrupted by the filing of the complaint even if it be merely for purposes of preliminary examination or investigation.[12]chanroblesvirtuallawlibrary The COMELEC initiated the complaint for double registration against petitioners motu proprio under Sections 3,[13] 4[14] and 5,[15] Rule 34 of the 1993 COMELEC Rules of Procedure. On September 16, 1997, the Election Officer of Cavite City forwarded copies of petitioners Voters Registration Records for evaluation to Atty. Juanito V. Ravanzo, Provincial Election Supervisor of Cavite City, who was also tasked to investigate the case. Ravanzo endorsed the matter to the Regional Director for prosecution. The Regional Director forwarded the case to the Law Department and the latter re-endorsed the same to the office of Ravanzo for resolution. A preliminary investigation hearing was conducted on January 19, 1998 where petitioners were instructed to submit their counter-affidavits. After the preliminary investigation and based on the affidavits and other evidence submitted in the case, Ravanzo recommended the prosecution of petitioners for the offense of double registration. Ineluctably, the prescriptive period of the offense was interrupted upon the COMELECs initiation of proceedings against petitioners and remains tolled pending the termination of the case. chanroblesvirtuallawlibrary The liberal construction of punitive laws in relation to the prescription of offenses cannot be invoked to prejudice the interest of the State to prosecute election offenses, especially those which the COMELEC described as ruffling the electoral system.[16] chanroblesvirtuallawlibrary Third Issue: Whether the COMELEC Constitution.chanroblesvirtuallawlibrary 341 Election Laws COMELEC en bancs assumption of original jurisdiction over the case violated the
Petitioners rely on Section 3, Article IX-C of the 1987 Constitution which states: chanroblesvirtuallawlibrary Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.chanroblesvirtuallawlibrary Petitioners assert that this constitutional provision serves as basis to nullify the proceedings conducted and orders issued by the COMELEC en banc in E.O. Case No. 97-503. Petitioners cite Sarmiento v. Comelec[17] and Zarate v. Comelec[18] to support their stand that the COMELEC en banc acted without jurisdiction or with grave abuse of discretion when it assumed original jurisdiction over the case without first referring the same to any of its divisions. In Sarmiento and Zarate, the Court similarly held that election cases must first be heard and decided by a Division of the Commission, and that the Commission, sitting en banc, does not have the authority to hear and decide the same at the first instance. chanroblesvirtuallawlibrary In its Comment for the COMELEC, the Solicitor General points out that the rulings in Sarmiento and Zarate were clarified in Canicosa v. COMELEC[19] to mean that chanroblesvirtuallawlibrary [I]t is only in the exercise of its adjudicatory or quasi judicial powers that the COMELEC is mandated to hear and decide cases first by division and then, upon motion for reconsideration, by the COMELEC en banc. This is when it is jurisdictional.chanroblesvirtuallawlibrary The Solicitor General contends that the conduct of a preliminary investigation before the filing of an information in court does not in any way adjudicate with finality the rights and liabilities of the parties investigated. A preliminary investigation does not make any pronouncement as to the guilt or innocence of the party involved. Hence, a preliminary investigation cannot be considered a judicial or quasi-judicial proceeding required to be heard by the Division in the first instance. chanroblesvirtuallawlibrary On the other hand, petitioners countered that in Cruz v. People,[20] the Court held that the conduct of a preliminary investigation is a judicial or quasi-judicial proceeding since there is opportunity to be heard and for the production and weighing of evidence and a decision is rendered thereon.chanroblesvirtuallawlibrary Under Section 2, Article IX-C of the 1987 Constitution, the COMELEC exercises both administrative and quasi-judicial powers. The COMELECs administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8), and (9) of Article IX-C.[21] The 1987 Constitution does not prescribe how the COMELEC should exercise its administrative powers, whether en banc or in division. The Constitution merely vests the COMELECs administrative powers in the Commission on Elections, while providing that the COMELEC may sit en banc or in two divisions. Clearly, the COMELEC en banc can act directly on matters falling within its administrative powers. Indeed, this has been the practice of the COMELEC both under the 1973 and 1987 Constitutions.[22]chanroblesvirtuallawlibrary On the other hand, the COMELECs quasi-judicial powers are found in Section 2 (2) of Article IX-C, to wit:chanroblesvirtuallawlibrary Section 2. The Commission on Elections shall exercise the following powers and functions:chanroblesvirtuallawlibrary xxxchanroblesvirtuallawlibrary (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.chanroblesvirtuallawlibrary Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable.chanroblesvirtuallawlibrary The COMELECs exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires that all election cases, including pre-proclamation controversies, shall be decided by the COMELEC in division, and the motion for reconsideration shall be decided by the COMELEC en banc. It follows, as held by the Court in Canicosa,[23] that the COMELEC is mandated to decide cases first in division, and then upon motion for reconsideration en banc, only when the COMELEC exercises its quasi-judicial powers. chanroblesvirtuallawlibrary The COMELEC is empowered in Section 2(6), Article IX-C of the 1987 Constitution to prosecute cases of violations of election laws. The prosecution of election law violators involves the exercise of the COMELECs administrative powers. Thus, the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal information for double registration against petitioners in the instant case. There is no constitutional requirement that the filing of the criminal information be first decided by any of the divisions of the COMELEC. chanroblesvirtuallawlibrary
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In sum, the second sentence of Section 3, Article IX-C of the 1987 Constitution is not applicable in administrative cases, like the instant case where the COMELEC is determining whether probable cause exists to charge petitioners for violation of the provision of the Election Code prohibiting double registration.chanroblesvirtuallawlibrary Indeed, the COMELEC acted in accordance with Section 9(b), Rule 34 of the 1993 COMELEC Rules of Procedure governing the prosecution of election offenses in meeting en banc in the first instance and acting on the recommendation of Investigating Officer Ravanzo to file charges against petitioners. The rule reads:chanroblesvirtuallawlibrary SEC. 9. Duty of the Law Department, State Prosecutor, Provincial or City Fiscal Upon Receipt of Records. x x xchanroblesvirtuallawlibrary (b). In cases investigated by the lawyers or the field personnel of the Commission, the Director of the Law Department shall review and evaluate the recommendation of said legal officer, prepare a report and make a recommendation to the Commission affirming, modifying or reversing the same which shall be included in the agenda of the succeeding meeting en banc of the Commission. If the Commission approves the filing of an information against the respondent/s, the Director of the Law Department shall prepare and sign the information for immediate filing with the appropriate court. (Emphasis supplied)chanroblesvirtuallawlibrary Minute Resolution No. 00-2281 was issued during the en banc meeting held on November 9, 2000 to resolve the recommendation of Ravanzo in the case. chanroblesvirtuallawlibrary WHEREFORE, the petition is DISMISSED for lack of merit.chanroblesvirtuallawlibrary SO ORDERED.chanroblesvirtuallawlibrary
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G.R. No. 90336 August 12, 1991 RUPERTO TAULE, petitioner, vs. SECRETARY LUIS T. SANTOS and GOVERNOR LEANDRO VERCELES, Respondents.
GANCAYCO, J.: The extent of authority of the Secretary of Local Government over the katipunan ng mga barangay or the barangay councils is brought to the fore in this case.chanroblesvirtualawlibrary chanrobles virtual law library On June 18,1989, the Federation of Associations of Barangay Councils (FABC) of Catanduanes, composed of eleven (11) members, in their capacities as Presidents of the Association of Barangay Councils in their respective municipalities, convened in Virac, Catanduanes with six members in attendance for the purpose of holding the election of its officers.chanroblesvirtualawlibrary chanrobles virtual law library Present were petitioner Ruperto Taule of San Miguel, Allan Aquino of Viga, Vicente Avila of Virac, Fidel Jacob of Panganiban, Leo Sales of Caramoran and Manuel Torres of Baras. The Board of Election Supervisors/Consultants was composed of Provincial Government Operation Officer (PGOO) Alberto P. Molina, Jr. as Chairman with Provincial Treasurer Luis A. Manlapaz, Jr. and Provincial Election Supervisor Arnold Soquerata as members.chanroblesvirtualawlibrary chanrobles virtual law library When the group decided to hold the election despite the absence of five (5) of its members, the Provincial Treasurer and the Provincial Election Supervisor walked out.chanroblesvirtualawlibrary chanrobles virtual law library The election nevertheless proceeded with PGOO Alberto P. Molina, Jr. as presiding officer. Chosen as members of the Board of Directors were Taule, Aquino, Avila, Jacob and Sales.chanroblesvirtualawlibrary chanrobles virtual law library Thereafter, the following were elected officers of the FABC: President - Ruperto Taule chanrobles virtual law library Vice-President - Allan Aquino chanrobles virtual law library Secretary - Vicente Avila chanrobles virtual law library Treasurer - Fidel Jacob chanrobles virtual law library Auditor - Leo Sales chanrobles virtual law library On June 19, 1989, respondent Leandro I. Verceles, Governor of Catanduanes, sent a letter to respondent Luis T. Santos, the Secretary of Local Government,* protesting the election of the officers of the FABC and seeking its nullification in view of several flagrant 2 irregularities in the manner it was conducted. chanrobles virtual law library In compliance with the order of respondent Secretary, petitioner Ruperto Taule as President of the FABC, filed his comment on the letter-protest of respondent Governor denying the alleged irregularities and denouncing said respondent Governor for meddling or intervening in the election of FABC officers which is a purely non-partisan affair and at the same time requesting for his appointment as 3 a member of the Sangguniang Panlalawigan of the province being the duly elected President of the FABC in Catanduanes. chanrobles virtual law library
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On August 4, 1989, respondent Secretary issued a resolution nullifying the election of the officers of the FABC in Catanduanes held on June 18, 1989 and ordering a new one to be conducted as early as possible to be presided by the Regional Director of Region V of the 4 Department of Local Government. chanrobles virtual law library Petitioner filed a motion for reconsideration of the resolution of August 4, 1989 but it was denied by respondent Secretary in his 5 resolution of September 5, 1989. chanrobles virtual law library In the petition for certiorari before Us, petitioner seeks the reversal of the resolutions of respondent Secretary dated August 4, 1989 and September 5, 1989 for being null and void. Petitioner raises the following issues: 1) Whether or not the respondent Secretary has jurisdiction to entertain an election protest involving the election of the officers of the Federation of Association of Barangay Councils; chanrobles virtual law library 2) Whether or not the respondent Governor has the legal personality to file an election protest; chanrobles virtual law library 3) Assuming that the respondent Secretary has jurisdiction over the election protest, whether or not he committed grave abuse of discretion amounting to lack of jurisdiction in nullifying the election; The Katipunan ng mga Barangay is the organization of all sangguniang barangays in the following levels: in municipalities to be known as katipunang bayan; in cities, katipunang panlungsod; in provinces, katipunang panlalawigan; in regions, katipunang pampook; and on 6 the national level, katipunan ng mga barangay. chanrobles virtual law library The Local Government Code provides for the manner in which the katipunan ng mga barangay at all levels shall be organized: Sec. 110. Organization. - (1) The katipunan at all levels shall be organized in the following manner: chanrobles virtual law library (a) The katipunan in each level shall elect a board of directors and a set of officers. The president of each level shall represent the katipunan concerned in the next higher level of organization.chanroblesvirtualawlibrary chanrobles virtual law library (b) The katipunan ng mga barangay shall be composed of the katipunang pampook, which shall in turn be composed of the presidents of the katipunang panlalawigan and the katipunang panlungsod. The presidents of the katipunang bayan in each province shall constitute the katipunang panlalawigan. The katipunang panlungsod and the katipunang bayan shall be composed of the punong barangays of cities and municipalities, respectively.chanroblesvirtualawlibrary chanrobles virtual law library xxx xxx xxx The respondent Secretary, acting in accordance with the provision of the Local Government Code empowering him to "promulgate in detail the implementing circulars and the rules and regulations to carry out the various administrative actions required for the initial 7 implementation of this Code in such a manner as will ensure the least disruption of on-going programs and projects issued 8 Department of Local Government Circular No. 89-09 on April 7, 1989, to provide the guidelines for the conduct of the elections of officers of the Katipunan ng mga Barangay at the municipal, city, provincial, regional and national levels.chanroblesvirtualawlibrary chanrobles virtual law library It is now the contention of petitioner that neither the constitution nor the law grants jurisdiction upon the respondent Secretary over election contests involving the election of officers of the FABC, the katipunan ng mga barangay at the provincial level. It is petitioner's theory that under Article IX, C, Section 2 of the 1987 Constitution, it is the Commission on Elections which has jurisdiction over all contests involving elective barangay officials.chanroblesvirtualawlibrary chanrobles virtual law library On the other hand, it is the opinion of the respondent Secretary that any violation of the guidelines as set forth in said circular would be a ground for filing a protest and would vest upon the Department jurisdiction to resolve any protest that may be filed in relation thereto.chanroblesvirtualawlibrary chanrobles virtual law library Under Article IX, C, Section 2(2) of the 1987 Constitution, the Commission on Elections shall exercise "exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective 345 Election Laws COMELEC
barangay officials decided by trial courts of limited jurisdiction." The 1987 Constitution expanded the jurisdiction of the COMELEC by granting it appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or 9 elective barangay officials decided by trial courts of limited jurisdiction. chanrobles virtual law library The jurisdiction of the COMELEC over contests involving elective barangay officials is limited to appellate jurisdiction from decisions of 10 the trial courts. Under the law, the sworn petition contesting the election of a barangay officer shall be filed with the proper Municipal or Metropolitan Trial Court by any candidate who has duly filed a certificate of candidacy and has been voted for the same office within 10 days after the proclamation of the results. A voter may also contest the election of any barangay officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines by filing a sworn petition for quo warranto with the Metropolitan or Municipal Trial Court 11 within 10 days after the proclamation of the results of the election. Only appeals from decisions of inferior courts on election matters as aforestated may be decided by the COMELEC.chanroblesvirtualawlibrary chanrobles virtual law library The Court agrees with the Solicitor General that the jurisdiction of the COMELEC is over popular elections, the elected officials of which are determined through the will of the electorate. An election is the embodiment of the popular will, the expression of the sovereign 12 13 power of the people. It involves the choice or selection of candidates to public office by popular vote. Specifically, the term "election," in the context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding of the 14 electoral campaign, and the casting and counting of the votes which do not characterize the election of officers in the Katipunan ng mga barangay. "Election contests" would refer to adversary proceedings by which matters involving the title or claim of title to an elective office, made before or after proclamation of the winner, is settled whether or not the contestant is claiming the office in dispute 15 and in the case of elections of barangay officials, it is restricted to proceedings after the proclamation of the winners as no pre16 proclamation controversies are allowed. chanrobles virtual law library The jurisdiction of the COMELEC does not cover protests over the organizational set-up of the katipunan ng mga barangay composed of popularly elected punong barangays as prescribed by law whose officers are voted upon by their respective members. The COMELEC exercises only appellate jurisdiction over election contests involving elective barangay officials decided by the Metropolitan or Municipal Trial Courts which likewise have limited jurisdiction. The authority of the COMELEC over the katipunan ng mga barangay is limited by law to supervision of the election of the representative of the katipunan concerned to the sanggunian in a particular level 17 conducted by their own respective organization. chanrobles virtual law library However, the Secretary of Local Government is not vested with jurisdiction to entertain any protest involving the election of officers of the FABC.chanroblesvirtualawlibrary chanrobles virtual law library There is no question that he is vested with the power to promulgate rules and regulations as set forth in Section 222 of the Local Government Code.chanroblesvirtualawlibrary chanrobles virtual law library Likewise, under Book IV, Title XII, Chapter 1, See. 3(2) of the Administrative Code of 1987, ** the respondent Secretary has the power to "establish and prescribe rules, regulations and other issuances and implementing laws on the general supervision of local government units and on the promotion of local autonomy and monitor compliance thereof by said units." chanrobles virtual law library Also, the respondent Secretary's rule making power is provided in See. 7, Chapter II, Book IV of the Administrative Code, to wit: (3) Promulgate rules and regulations necessary to carry out department objectives, policies, functions, plans, programs and projects; Thus, DLG Circular No. 89-09 was issued by respondent Secretary in pursuance of his rule-making power conferred by law and which 18 now has the force and effect of law. chanrobles virtual law library Now the question that arises is whether or not a violation of said circular vests jurisdiction upon the respondent Secretary, as claimed by him, to hear a protest filed in relation thereto and consequently declare an election null and void.chanroblesvirtualawlibrary chanrobles virtual law library It is a well-settled principle of administrative law that unless expressly empowered, administrative agencies are bereft of quasi- judicial 19 powers. The jurisdiction of administrative authorities is dependent entirely upon the provisions of the statutes reposing power in them; 20 21 they cannot confer it upon themselves. Such jurisdiction is essential to give validity to their determinations. chanrobles virtual law library There is neither a statutory nor constitutional provision expressly or even by necessary implication conferring upon the Secretary of Local Government the power to assume jurisdiction over an election protect involving officers of the katipunan ng mga barangay. An understanding of the extent of authority of the Secretary over local governments is therefore necessary if We are to resolve the issue at hand.chanroblesvirtualawlibrary chanrobles virtual law library
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Presidential power over local governments is limited by the Constitution to the exercise of general supervision "to ensure that local 23 affairs are administered according to law." The general supervision is exercised by the President through the Secretary of Local 24 Government. chanrobles virtual law library In administrative law, supervision means overseeing or the power or authority of an officer to see that the subordinate officers perform their duties. If the latter fails or neglects to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. The fundamental law permits the Chief Executive to wield no more authority than that of checking whether said local government or the officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot interfere with local governments 25 so long as the same or its officers act within the scope of their authority. Supervisory power, when contrasted with control, is the 26 power of mere oversight over an inferior body; it does not include any restraining authority over such body. chanrobles virtual law library Construing the constitutional limitation on the power of general supervision of the President over local governments, We hold that respondent Secretary has no authority to pass upon the validity or regularity of the election of the officers of the katipunan. To allow respondent Secretary to do so will give him more power than the law or the Constitution grants. It will in effect give him control over local government officials for it will permit him to interfere in a purely democratic and non-partisan activity aimed at strengthening the barangay as the basic component of local governments so that the ultimate goal of fullest autonomy may be achieved. In fact, his order that the new elections to be conducted be presided by the Regional Director is a clear and direct interference by the Department with the political affairs of the barangays which is not permitted by the limitation of presidential power to general supervision over local 27 governments. chanrobles virtual law library Indeed, it is the policy of the state to ensure the autonomy of local governments. This state policy is echoed in the Local Government Code wherein it is declared that "the State shall guarantee and promote the autonomy of local government units to ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social 29 progress." To deny the Secretary of Local Government the power to review the regularity of the elections of officers of the katipunan would be to enhance the avowed state policy of promoting the autonomy of local governments.chanroblesvirtualawlibrary chanrobles virtual law library Moreover, although the Department is given the power to prescribe rules, regulations and other issuances, the Administrative Code 30 limits its authority to merely "monitoring compliance" by local government units of such issuances. To monitor means "to watch, 31 observe or check. This is compatible with the power of supervision of the Secretary over local governments which as earlier discussed is limited to checking whether the local government unit concerned or the officers thereof perform their duties as provided by statutory enactments. Even the Local Government Code which grants the Secretary power to issue implementing circulars, rules and regulations is silent as to how these issuances should be enforced. Since the respondent Secretary exercises only supervision and not 32 control over local governments, it is truly doubtful if he could enforce compliance with the DLG Circular. Any doubt therefore as to the power of the Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government.chanroblesvirtualawlibrary chanrobles virtual law library Thus, the Court holds that in assuming jurisdiction over the election protest filed by respondent Governor and declaring the election of the officers of the FABC on June 18, 1989 as null and void, the respondent Secretary acted in excess of his jurisdiction. The respondent Secretary not having the jurisdiction to hear an election protest involving officers of the FABC, the recourse of the parties is 33 to the ordinary courts. The Regional Trial Courts have the exclusive original jurisdiction to hear the protest. chanrobles virtual law library The provision in DLG Circular No. 89-15 amending DLG Circular No. 89-09 which states that "whenever the guidelines are not substantially complied with, the election shall be declared null and void by the Department of Local Government and an election shall conduct and being invoked by the Solicitor General cannot be applied. DLG Circular No. 89-15 was issued on July 3, 1989 after the 34 June 18, 1989 elections of the FABC officers and it is the rule in statutory construction that laws, including circulars and regulations 35 cannot be applied retrospectively. Moreover, such provision is null and void for having been issued in excess of the respondent Secretary's jurisdiction, inasmuch as an administrative authority cannot confer jurisdiction upon itself.chanroblesvirtualawlibrary chanrobles virtual law library As regards the second issue raised by petitioner, the Court finds that respondent Governor has the personality to file the protest. Under Section 205 of the Local Government Code, the membership of the sangguniang panlalawigan consists of the governor, the vicegovernor, elective members of the said sanggunian and the presidents of the katipunang panlalawigan and the kabataang barangay 36 provincial federation. The governor acts as the presiding officer of the sangguniang panlalawigan. chanrobles virtual law library As presiding officer of the sagguniang panlalawigan, the respondent governor has an interest in the election of the officers of the FABC since its elected president becomes a member of the assembly. If the president of the FABC assumes his presidency under questionable circumstances and is allowed to sit in the sangguniang panlalawigan the official actions of the sanggunian may be vulnerable to attacks as to their validity or legality. Hence, respondent governor is a proper party to question the regularity of the elections of the officers of the FABC.chanroblesvirtualawlibrary chanrobles virtual law library 347 Election Laws COMELEC
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As to the third issue raised by petitioner, the Court has already ruled that the respondent Secretary has no jurisdiction to hear the protest and nullify the elections.chanroblesvirtualawlibrary chanrobles virtual law library Nevertheless, the Court holds that the issue of the validity of the elections should now be resolved in order to prevent any unnecessary delay that may result from the commencement of an appropriate action by the parties.chanroblesvirtualawlibrary chanrobles virtual law library The elections were declared null and void primarily for failure to comply with Section 2.4 of DLG Circular No. 89-09 which provides that "the incumbent FABC President or the Vice-President shall preside over the reorganizational meeting, there being a quorum." The rule specifically provides that it is the incumbent FABC President or Vice-President who shall preside over the meeting. The word "shall" should be taken in its ordinary signification, i.e., it must be imperative or mandatory and not merely 37 permissive, as the rule is explicit and requires no other interpretation. If it had been intended that any other official should preside, the 38 39 rules would have provided so, as it did in the elections at the town and city levels as well as the regional level.. chanrobles virtual law library It is admitted that neither the incumbent FABC President nor the Vice-President presided over the meeting and elections but Alberto P. Molina, Jr., the Chairman of the Board of Election Supervisors/Consultants. Thus, there was a clear violation of the aforesaid mandatory provision. On this ground, the elections should be nullified.chanroblesvirtualawlibrary chanrobles virtual law library Under Sec. 2.3.2.7 of the same circular it is provided that a Board of Election Supervisors/Consultants shall be constituted to oversee and/or witness the canvassing of votes and proclamation of winners. The rules confine the role of the Board of Election Supervisors/Consultants to merely overseeing and witnessing the conduct of elections. This is consistent with the provision in the Local 40 Government Code limiting the authority of the COMELEC to the supervision of the election. chanrobles virtual law library In case at bar, PGOO Molina, the Chairman of the Board, presided over the elections. There was direct participation by the Chairman of the Board in the elections contrary to what is dictated by the rules. Worse, there was no Board of Election Supervisors to oversee the elections in view of the walk out staged by its two other members, the Provincial COMELEC Supervisor and the Provincial Treasurer. The objective of keeping the election free and honest was therefore compromised.chanroblesvirtualawlibrary chanrobles virtual law library The Court therefore finds that the election of officers of the FABC held on June 18, 1989 is null and void for failure to comply with the provisions of DLG Circular No. 89-09.chanroblesvirtualawlibrary chanrobles virtual law library Meanwhile, pending resolution of this petition, petitioner filed a supplemental petition alleging that public respondent Local Government Secretary, in his memorandum dated June 7, 1990, designated Augusto Antonio as temporary representative of the Federation to the 41 sangguniang panlalawigan of Catanduanes. By virtue of this memorandum, respondent governor swore into said office Augusto 42 Antonio on June 14, 1990. chanrobles virtual law library The Solicitor General filed his comment on the supplemental petition 13,1990.chanroblesvirtualawlibrary chanrobles virtual law library
43
as required by the resolution of the Court dated September
In his comment, the Solicitor General dismissed the supervening event alleged by petitioner as something immaterial to the petition. He argues that Antonio's appointment was merely temporary "until such time that the provincial FABC president in that province has been 44 elected, appointed and qualified." He stresses that Antonio's appointment was only a remedial measure designed to cope with the problems brought about by the absence of a representative of the FABC to the "sanggunian ang panlalawigan." chanrobles virtual law library Sec. 205 (2) of the Local Government Code (B.P. Blg. 337) provides(2) The sangguniang panlalawigan shall be composed of the governor, the vice-governor, elective members of the said sanggunian and the presidents of the katipunang panlalawigan and the kabataang barangay provincial federation who shall be appointed by the President of the Philippines. (Emphasis supplied.) Batas Pambansa Blg. 51, under Sec. 2 likewise states: xxx xxx xxx chanrobles virtual law library The sangguniang panlalawigan of each province shall be composed of the governor as chairman and presiding officer, the vice-governor as presiding officer pro tempore, the elective sangguniang panlalawigan members, and the appointive members consisting of the president of the provincial association of barangay councils, and the president of the provincial federation of the kabataang barangay. (Emphasis supplied.) 348 Election Laws COMELEC
In Ignacio vs. Banate Jr. the Court, interpreting similarly worded provisions of Batas Pambansa Blg. 337 and Batas Pambansa Blg. 46 51 on the composition of the sangguniang panlungsod, declared as null and void the appointment of private respondent Leoncio Banate Jr. as member of the Sangguniang Panlungsod of the City of Roxas representing the katipunang panlungsod ng mga barangay for he lacked the elegibility and qualification required by law, not being a barangay captain and for not having been elected president of the association of barangay councils. The Court held that an unqualified person cannot be appointed a member of the sanggunian, 47 even in an acting capacity. In Reyes vs. Ferrer, the appointment of Nemesio L. Rasgo Jr. as representative of the youth sector to the sangguniang panlungsod of Davao City was declared invalid since he was never the president of the kabataang barangay city federation as required by Sec. 173, Batas Pambansa Blg. 337.chanroblesvirtualawlibrary chanrobles virtual law library In the present controversy involving the sangguniang panlalawigan, the law is likewise explicit. To be appointed by the President of the Philippines to sit in the sangguniang panlalawigan is the president of the katipunang panlalawigan. The appointee must meet the 48 qualifications set by law. The appointing power is bound by law to comply with the requirements as to the basic qualifications of the appointee to the sangguniang panlalawigan. The President of the Philippines or his alter ego, the Secretary of Local Government, has no authority to appoint anyone who does not meet the minimum qualification to be the president of the federation of barangay councils.chanroblesvirtualawlibrary chanrobles virtual law library Augusto Antonio is not the president of the federation. He is a member of the federation but he was not even present during the elections despite notice. The argument that Antonio was appointed as a remedial measure in the exigency of the service cannot be sustained. Since Antonio does not meet the basic qualification of being president of the federation, his appointment to the sangguniang panlalawigan is not justified notwithstanding that such appointment is merely in a temporary capacity. If the intention of the respondent Secretary was to protect the interest of the federation in the sanggunian, he should have appointed the incumbent FABC President in a hold-over capacity. For even under the guidelines, the term of office of officers of the katipunan at all levels shall be from the date of their election until their successors shall have been duly elected and qualified, without prejudice to the terms of their appointments as 49 members of the sanggunian to which they may be correspondingly appointed. Since the election is still under protest such that no successor of the incumbent has as yet qualified, the respondent Secretary has no choice but to have the incumbent FABC President sit as member of the sanggunian. He could even have appointed petitioner since he was elected the president of the federation but not Antonio. The appointment of Antonio, allegedly the protege of respondent Governor, gives credence to petitioner's charge of political interference by respondent Governor in the organization. This should not be allowed. The barangays should be insulated from a ny partisan activity or political intervention if only to give true meaning to local autonomy.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the petition is GRANTED in that the resolution of respondent Secretary dated August 4, 1989 is hereby SET ASIDE for having been issued in excess of jurisdiction.chanroblesvirtualawlibrary chanrobles virtual law library The election of the officials of the ABC Federation held on June 18, 1989 is hereby annulled. A new election of officers of the federation is hereby ordered to be conducted immediately in accordance with the governing rules and regulations.chanroblesvirtualawlibrary chanrobles virtual law library The Supplemental petition is hereby GRANTED. The appointment of Augusto Antonio as representative to the Sangguniang Panlalawigan in a temporary capacity is declared null and void.chanroblesvirtualawlibrary chanrobles virtual law library No costs.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED.
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349
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-61998 February 22, 1983 ROGELIO DE JESUS, Petitioner, vs. PEOPLE OF THE PHILIPPINES, et al., Respondents.
ESCOLIN, J.: chanrobles virtual law library The question of law posed for determination in this petition for review on certiorari of the resolution of the Sandiganbayan may be propounded thus: Which of these entities have the power to investigate, prosecute and try election offenses committed by a public officer in relation to his office - the Commission on Elections and the Court of First Instance [now the regional trial court] or the Tanodbayan and the Sandiganbayan? chanrobles virtual law library After the local elections of January 18, 1980, Ananias Hibo defeated candidate of the Nacionalista Party for the office of mayor of the Municipality of Casiguran, Sorsogon filed with the COMELEC a complaint charging petitioner Rogelio de Jesus, then COMELEC registrar of Casiguran, with violation of the 1978 Election Code. Copy of the complaint was sent to the Ministry of Justice which endorsed the same to the Provincial Fiscal of Sorsogon for investigation. Noting that petitioner was being charged in relation to his office, Asst. Fiscals Manuel Genova and Delfin Tarog in their capacity as deputized Tanodbayan prosecutors, conducted an investigation. Thereafter Fiscal Genova issued a resolution finding the existence of a prima facie case against petitioner for violation of 1 2 3 section 89 and sub-sections [x] and [mm] of Section 178 of the Election Code of 1978. After approval thereof by the Tanodbayan, the following information, dated January 27, 1982, was filed before the Sandiganbayan: chanrobles virtual law library That on or about January 30, 1980 and sometime thereafter to February 6, 1980, in the Municipality of Casiguran Province of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused while discharging the Office of the Election Registrar in the Municipality of Casiguran, Province of Sorsogon, taking advantage and abusing his official position, did there and there wilfully unlawfully and feloniously by reason of his being a registrar knowingly registered persons in order to vote on January 30, 1980 being an election day and at the same time issuing Identification cards during election day, thereby violating the provision of the Election Code of 1978 and at the same time tampering with the election reports by mag it appear that 10,727 persons were the total number of registered voters for the election of January 30, 1980, when in truth and in fact the actual total number of voters as - sported on January 27, 1980 by the accused was only 10,532 but then changed to 10,727, thereby violating the provisions of Section '89' and Section.'178' under Article XVI specifically subsection 'X' and sub-section 'MM' which is a violation of the Election Code of 1978 to the erosion of public faith and confidence. The case, docketed as SB Criminal Case No. 5054, Sandiganbayan.chanroblesvirtualawlibrary chanrobles virtual law library was raffled to the Second Division of the
Petitioner filed a motion to quash the information, contending that neither the Tanodbayan nor the Sandiganbayan has the authority to investigate, prosecute and try the offense chanrobles virtual law library xxx xxx xxx chanrobles virtual law library [x] Any election registrar or any person acting in his behalf who issues or causes the issuance of a voter's certificate of registration or cancels or causes the cancellation thereof the violation of the provisions of this Code.chanroblesvirtualawlibrary chanrobles virtual law library xxx xxx xxx chanrobles virtual law library [mm] Any person who, without authority, acts as, or assumes r performs any -function of a member of the election committee, or the board of canvassers, or deputy of representative of the Commission. charged in the information, the same being an election offense over which the power to investigate, prosecute and try is lodged by law in the COMELEC and the Court of First Instance. In its opposition, the prosecution maintained the Tanodbayan's exclusive authority to investigate and prosecute offenses committed by public officers and employees in relation to their office, and consequently, the Sandiganbayan's jurisdiction to try and decide the charges against petitioner.chanroblesvirtualawlibrary chanrobles virtual law library 350 Election Laws COMELEC
The COMELEC, having learned of the pendency of the case, entered its appearance as amicus curiae, and through its law department 4 manager, Atty. Zoilo Gomez, Jr., submitted a memorandum supporting petitioner's stand. chanrobles virtual law library On August 13, 1982, the Sandiganbayan issued the questioned resolution denying the motion to quash. Petitioner's motion for reconsideration was likewise denied. Hence, this petition for review on certiorari.chanroblesvirtualawlibrary chanrobles virtual law library The legal question posed being one of first impression, this, Court resolved to give due course to the petition, treating the same as an original petition for certiorari under Rule 65 of the Rules of Court, the proper mode by which relief from the resolution of the Sandiganbayan could be obtained from this Tribunal. Petitioner and respondents rely on different provisions of the 1973 Constitution as bases for their respective contentions. Petitioner invokes Section 2 of Article XII[c] of the 1973 Constitution which vests upon the COMELEC the power "to enforce and administer all laws relative to the conduct of elections," and its implementing legislation, Section 182 of the 1978 Election Code, which provides the following: chanrobles virtual law library Section 182 - Prosecution. The Commission shall, thru its duly authorized legal officer, have the 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. Petitioner further cites Section 184 of the same Code which invests the court of first instance with "exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this code except those relating to the offense of failure to register or failure 5 to vote which shall be under the jurisdiction of the city or municipal courts. ... The Solicitor General supports the petitioner's views. chanrobles virtual law library Upon the other hand, the Sandiganbayan, in its resolution of August 13, 1982, asserts its jurisdiction over Criminal Case No. 5054 on the authority of Section 5, Article XIII of the Constitution, which mandated the creation by the Batasan Pambansa of "a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices, and such other offenses committed by public officers and employees, including those in government-owned and controlled corporations, in relation to their office as may be determined by law." chanrobles virtual law library To the Sandiganbayan, as set forth in the challenged resolution, ... the key phrase in the determination as to which of the Sandiganbayan or the regular courts of first instance should take cognizance of an election offense, is the phrase, 'in relation to their office'." Thus, it would distinguish between election offenses committed by public officers and employees in relation to their office and those committed not in relation to their office, in this manner: chanrobles virtual law library If the election offense is committed by a public officer or employee NOT in relation to their office, generally, jurisdiction will be assumed by the regular courts. If, on the other hand, the offense was committed by a public officer or employee in relation to their office, then there is no other tribunal vested with jurisdiction to try such offense but this court, in consonance with the mandate of the Constitution that the Sandiganbayan has jurisdiction, lover ... offenses committed by public officers and employees in relation to their office. We find the position of the Sandiganbayan devoid of merit.chanroblesvirtualawlibrary chanrobles virtual law library The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomittant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would 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. To divest the COMELEC of the authority to investigate and prosecute offenses committed by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate.chanroblesvirtualawlibrary chanrobles virtual law library From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceive neither explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the authority to investigate, prosecute and hear election offenses committed by public officers in relation to their office, as contra-distinguished from the clear and categorical bestowal of said authority and jurisdiction upon the COMELEC and the courts of first instance under Sections 182 and 184, respectively, of the Election Code of 1978.chanroblesvirtualawlibrary chanrobles virtual law library Under the Constitution, the Sandiganbayan shall have jurisdiction over ... offenses committed by public officers ... in relation to their office as may be determined by law" [Sec. 5, Art. XIII]; while the Office of the Tanodbayan shall "receive and investigate complaints relative to public office." [Sec. 6, Art. XIII]. The clause, "as may be determined by law" is, to Our mind imbued with grave import. It called for a legislation that would define and delineate the power and jurisdiction of both the Tanodbayan and the Sandiganbayan, as what, in fact had been provided for in Presidential Decree Nos. 1606 and 1607, creating the said entities.chanroblesvirtualawlibrary chanrobles virtual law library Thus, under Section 4 of P.D. No. 1606, the Sandiganbayan shall have jurisdiction over: chanrobles virtual law library 351 Election Laws COMELEC
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[a] Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and Republic Act No. 1379; chanrobles virtual law library [b] Crimes committed by public officers and employees, including those employed in government-owned or controlled corporations, embraced in Title VII of the Revised Penal Code, whether simple or complexed with other crimes; and, chanrobles virtual law library [c] Other crimes or offenses committed by public officers or employees, including those employed in government-owned or controlled corporations, in relation to their office. Plainly, the above quoted paragraph [c] is but a re-statement of the constitutional provision relating to the Sandiganbayan. It is also to be noted that it is phased in terms so broad and general that it cannot be legitimately construed to vest said entity with exclusive jurisdiction over election offenses committed by public officers in relation to their office. Neither can it be interpreted to impliedly repeal the exclusive and original jurisdiction granted by Section 184 of the Election Code of 1978 to the court of first instance to hear and decide all election offenses, without qualification as to the status of the accused.chanroblesvirtualawlibrary chanrobles virtual law library Apart from the fact that repeals by implication are not favored. it is noted that while Section 184 of the Election Code deals specifically with election offenses, Section 4[c] of P.D. No, 1606 speaks generally of "other crimes or offenses committed by public officers ... in relation to their office." Needless to state, as between specific and general statute, the former must prevail since it evinces the 7 legislative intent more clearly than a general statute does. And where a reconciliation between the statute is possible, as in the case at 8 bar, the former should be deemed an exception to the latter. chanrobles virtual law library The same principle of statutory construction should be applied with respect to the powers vested upon the COMELEC and the Tanodbayan in so far as election offenses are concerned.chanroblesvirtualawlibrary chanrobles virtual law library Moreover, as aptly observed by the COMELEC as well as the Solicitor General, splitting the jurisdiction over election offenses would serve no beneficial purpose but would rather spawn much controversy - "complaints about unequal protection, about inconsistent decisions, etc. (which are) not conducive to a fair and speedy administration of justice." [p. 17, Comment, Solicitor General].chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the resolution of the Sandiganbayan Second Division dated August 13, 1982 is hereby set aside and Criminal Case No. 5054. entitled "People of the Philippines versus Rogelio de Jesus" is ordered dismissed. The COMELEC is hereby directed to forthwith conduct an investigation, and if the evidence so warrants, to prosecute the complaint against petitioner before the proper court of first instance. No costs.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED.
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Republic of the Philipppines SUPREME COURT Manila EN BANC [G. R. Nos. 148948 & 148951-60. February 17, 2003] COMMISSION ON ELECTIONS, Petitioner, vs. HON LUCENITO N. TAGLE, Presiding Judge, Regional Trial Court, Branch 20, Imus, Cavite, respondent. DECISION DAVIDE, JR., C.J.:chanroblesvirtuallawlibrary In this special civil action for certiorari and mandamus, petitioner Commission on Elections (COMELEC) seeks the nullification of the orders of 16 March 2001[1] and 9 May 2001[2] of respondent Judge Lucenito N. Tagle of the Regional Trial Court (RTC), Branch 20, Imus, Cavite, denying petitioners motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 and motion for reconsideration, respectively.chanroblesvirtuallawlibrary During the 11 May 1998 elections, Florentino A. Bautista ran for the position of mayor in the Municipality of Kawit, Cavite. On 8 July 1998, he filed with the COMELEC a complaint against then incumbent mayor Atty. Federico Poblete, Bienvenido Pobre, Reynaldo Aguinaldo, Arturo Ganibe, Leonardo Llave, Diosdado del Rosario, Manuel Ubod, Angelito Peregrino, Mario Espiritu, Salvador Olaes and Pedro Paterno, Jr., for violation of Section 261 (a) and (b) of the Omnibus Election Code. The complaint was supported by the separate affidavits of forty-four (44) witnesses attesting to the vote-buying activities of the respondents and was docketed as E.O. Case No. 98-219.chanroblesvirtuallawlibrary On 25 February 1999, upon the recommendation of its Law Department, the COMELEC en banc issued a resolution[3] directing the filing of the necessary information against the respondents in E.O. Case No. 98-219 and authorizing the Director IV of the Law Department to designate a COMELEC prosecutor to handle the prosecution of the cases and to file the appropriate motion for the preventive suspension of the respondents.chanroblesvirtuallawlibrary The Law Department filed the corresponding information against the respondents in E.O. Case No. 98-219 before the RTC, Branch 90, Imus, Cavite, which was docketed as Criminal Case No. 7034-99.chanroblesvirtuallawlibrary Before the trial of Criminal Case No. 7034-99 commenced, or on 2 December 1999, a complaint was filed by Innocencio Rodelas and Gerardo Macapagal with the Office of the Provincial Prosecutor in Imus, Cavite, for violation of Section 261(a) of the Omnibus Election Code against the witnesses in the criminal case for vote-buying, who were the witnesses in E.O. Case No. 98-219. The complaint was docketed as I.S. No. 1-99-1080.chanroblesvirtuallawlibrary On 10 April 2000, the Office of the Provincial Prosecutor resolved to file separate informations for vote-selling in the various branches of the RTC in Imus, Cavite, against the respondents in I.S. No. 1-99-1080. The cases were docketed as (1) Criminal Cases Nos. 7940-00 to 7949-00 and 7981-00, which were assigned to Branch 22; (2) Criminal Cases Nos. 7973-00 to 7979-00 and 7970-00, assigned to Branch 21; (3) Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, assigned to Branch 20; and (4) Criminal Cases Nos. 7960-00 to 7969-00, assigned to Branch 90.chanroblesvirtuallawlibrary On 23 June 2000, the respondents in I.S. No. 1-99-1080 appealed before the COMELEC the 10 April 2000 Resolution of the Provincial Prosecutor. On 6 July 2000, the COMELEC en banc denied the appeal for lack of jurisdiction.[4] However, upon the urgent motion to set for hearing the appeal, the COMELEC en banc resolved to defer action on the appeal and refer the same to the Law Department for comment and recommendation.[5]chanroblesvirtuallawlibrary The Law Department of the COMELEC filed motions to suspend proceedings before Branches 20, 21, 22 and 90 of the RTC of Imus, Cavite, until the COMELEC would have resolved the appeal of the respondents in I.S. No. 1-99-1080. The Presiding Judge of Branch 22 granted the motion for the suspension of proceedings in Criminal Cases Nos. 7940-00 to 7949-00 and 798100.chanroblesvirtuallawlibrary In its Minute Resolution No. 00-2453,[6] the COMELEC en banc, upon the recommendation of its Law Department, declared null and void the resolution of the Office of the Provincial Prosecutor in I.S. No. 1-99-1080. It held that the respondents therein are exempt from criminal prosecution pursuant to the fourth paragraph of Section 28 of R.A. No. 6646,[7] otherwise known as The Electoral Reforms Law of 1987, which grants immunity from criminal prosecution persons who voluntarily give information and willingly testify against those liable for vote-buying or vote-selling. It further directed the Law Department to file the necessary motions to dismiss the criminal cases filed against the said respondents.chanroblesvirtuallawlibrary 353 Election Laws COMELEC
Pursuant to Minute Resolution No. 00-2453, the Law Department filed a motion to dismiss[8] Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 before Branch 20 of the RTC of Imus, Cavite, presided by herein respondent judge. The latter, however, denied the said motion and the motion for reconsideration. According to respondent judge, before one can be exempt from prosecution under the fourth paragraph of Section 28 of R.A. No. 6646, it is necessary that such person has already performed the overt act of voluntarily giving information or testifying in any official investigation or proceeding for the offense to which such information or testimony was given. It was thus premature to exempt the respondents in I.S. No. 1-99-1080 from criminal prosecution, since they have not yet testified.chanroblesvirtuallawlibrary Hence, this petition, ascribing to the respondent judge grave abuse of discretion amounting to excess or lack of jurisdiction in peremptorily denying the prosecutions motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 798000.chanroblesvirtuallawlibrary This Court referred the petition to the Office of the Solicitor General (OSG) and required it to manifest whether it is adopting the petition.[9] In a Manifestation and Motion[10] filed with this Court, the OSG stated that it repleads the submissions contained in the petition and adopts the petition as its own.chanroblesvirtuallawlibrary The petition is meritorious.chanroblesvirtuallawlibrary A free, orderly, honest, peaceful, and credible election is indispensable in a democratic society. Without it, democracy would not flourish and would be a sham. Election offenses, such as vote-buying and vote-selling, are evils which prostitute the election process. They destroy the sanctity of the votes and abet the entry of dishonest candidates into the corridors of power where they may do more harm. As the Bible says, one who is dishonest in very small matters is dishonest in great ones. One who commits dishonesty in his entry into an elective office through the prostitution of the electoral process cannot be reasonably expected to respect and adhere to the constitutional precept that a public office is a public trust, and that all government officials and employees must at all times be accountable to the people and exercise their duties with utmost responsibility, integrity, loyalty, and efficiency.chanroblesvirtuallawlibrary The provision of law alleged to have been violated by the respondents in E.O. Case No. 98-219, who are the accused in Criminal Case No. 7034-99, reads as follows:chanroblesvirtuallawlibrary SEC. 261. Prohibited Acts. - The following shall be guilty of an election offense:chanroblesvirtuallawlibrary (a) Vote-buying and vote-selling. - (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party.chanroblesvirtuallawlibrary (2) Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations.chanroblesvirtuallawlibrary (b) Conspiracy to bribe voters. - Two or more persons whether candidates or not, who come to an agreement concerning the commission of any violation of paragraph (a) of this section and decide to commit it.chanroblesvirtuallawlibrary One of the effective ways of preventing the commission of vote-buying and of prosecuting those committing it is the grant of immunity from criminal liability in favor of the party whose vote was bought. This grant of immunity will encourage the recipient or acceptor to come into the open and denounce the culprit-candidate, and will ensure the successful prosecution of the criminal case against the latter. Congress saw the wisdom of this proposition, and so Section 28 of R.A. No. 6646 on Prosecution of Vote-Buying and VoteSelling concludes with this paragraph:chanroblesvirtuallawlibrary The giver, offeror, the promisor as well as the solicitor, acceptor, recipient and conspirator referred to in paragraphs (a) and (b) of Section 261 of Batas Pambansa Blg. 881 shall be liable as principals: Provided, That any person, otherwise guilty under said paragraphs who voluntarily gives information and willingly testifies on any violation thereof in any official investigation or proceeding shall be exempt from prosecution and punishment for the offenses with reference to which his information and testimony were given: Provided, further, That nothing herein shall exempt such person from criminal prosecution for perjury or false testimony.chanroblesvirtuallawlibrary However, to avoid possible fabrication of evidence against the vote-buyers, especially by the latters opponents, Congress saw it fit to warn vote-sellers who denounce the vote-buying that they could be liable for perjury or false testimony should they not tell the truth.chanroblesvirtuallawlibrary
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It must be stressed that the COMELEC has the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law.[11] The Chief State Prosecutor, all Provincial and City Prosecutors, or their respective assistants are, however, given continuing authority, as deputies of the COMELEC, to conduct preliminary investigation of complaints involving election offenses and to prosecute the same.[12] This authority may be revoked or withdrawn by the COMELEC anytime whenever, in its judgment, such revocation or withdrawal is necessary to protect the integrity of the COMELEC and to promote the common good, or when it believes that the successful prosecution of the case can be done by the COMELEC.[13]chanroblesvirtuallawlibrary In this case, when the COMELEC nullified the resolution of the Provincial Prosecutor in I.S. No. 1-99-1080, which was the basis of the informations for vote-selling, it, in effect, withdrew the deputation granted to the prosecutor. Such withdrawal of the deputation was clearly in order, considering the circumstances obtaining in these cases where those who voluntarily executed affidavits attesting to the vote-buying incident and became witnesses against the vote-buyers now stand as accused for the same acts they had earlier denounced. What the Prosecutor did was to sabotage the prosecution of the criminal case against the vote-buyers and put in serious peril the integrity of the COMELEC, which filed the said case for vote-buying. If the Prosecutor had listened to the command of prudence and good faith, he should have brought the matter to the attention of the COMELEC.chanroblesvirtuallawlibrary Petitioner COMELEC found that the respondents in I.S. No. 1-99-1080, who executed affidavits and turned witnesses in Criminal Case No. 7034-99, voluntarily admitted that they were the acceptors or recipients in the vote-buying done by the accused in said case. It was precisely because of such voluntary admission and willingness to testify that the COMELEC en banc, in its Minute Resolution No. 002453, declared null and void the resolution of the Office of the Provincial Prosecutor of Cavite in I.S. No. 1-99-1080 and held that the respondents therein are exempt from criminal prosecution pursuant to the last paragraph of Section 28 of R.A. No. 6646. Hence, it directed its Law Department to file a motion to dismiss the criminal cases which the Office of the Provincial Prosecutor filed in court against the respondents in I.S. No. 1-99-1080.chanroblesvirtuallawlibrary We agree with the petitioner and hold that the respondents in I.S. No. 1-99-1080, who are the accused in Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, are exempt from criminal prosecution for vote-selling by virtue of the proviso in the last paragraph of Section 28 of R.A. No. 6646. Respondent judge lost sight of the fact that at the time the complaint for vote-selling was filed with the Office of the Provincial Prosecutor, the respondents in I.S. No. 1-99-1080 had already executed sworn statements attesting to the corrupt practice of vote-buying in the case docketed as Criminal Case No. 7034-99. It cannot then be denied that they had already voluntarily given information in the vote-buying case. In fact, they willingly testified in Criminal Case No. 7034-99 per petitioners Memorandum filed with this Court.[14]chanroblesvirtuallawlibrary In a futile attempt to justify his denial of the motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, respondent judge averred in his comment on the petition that nothing was mentioned in the motion to dismiss that the accused in said cases had already given information or testified in any proceeding. Besides, no record of any preliminary investigation was attached to the motion to dismiss. The petitioner merely referred to the dispositive portion of Minute Resolution No. 00-2453 without mentioning any preliminary investigation conducted by the Law Department of the COMELEC.chanroblesvirtuallawlibrary This contention is without basis. A reading of the motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 shows that a certified true copy of COMELEC Minute Resolution No. 00-2453 was attached thereto and was made an integral part thereof. The attached resolution indicated that the accused in the cases sought to be dismissed had voluntarily given information and were willing to testify against the vote-buyers, and are therefore utilized as witnesses in the pending case for vote-buyers docketed as Criminal Case No. 7034-99.chanroblesvirtuallawlibrary Clearly then, respondent judge committed grave abuse of discretion when he denied the motion to dismiss Criminal Cases Nos. 795000 to 7959-00 and 7980-00 despite COMELECs determination that the accused therein are exempt from criminal prosecution for voteselling pursuant to the proviso in the fourth paragraph of Section 28 of R.A. No. 6646.chanroblesvirtuallawlibrary WHEREFORE, the petition is GRANTED. The challenged orders dated 16 March 2001 and 9 May 2001 of respondent judge in Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 before Branch 20 of the Regional Trial Court in Imus, Cavite, are hereby SET ASIDE, and said criminal cases are ordered DISMISSED.chanroblesvirtuallawlibrary No pronouncement as to costs.chanroblesvirtuallawlibrary SO ORDERED.chanroblesvirtuallawlibrary
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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. Nos. 83938-40 November 6, 1989 PEOPLE OF THE PHILIPPINES, Petitioner, vs. HON. HENRY B. BASILLA, SALVACION COLAMBOT, SPOUSES JAIME AND ADORACION TAYONG and MELCHOR YANSON, Respondents.
FELICIANO, J.: As an aftermath of the May 1987 congressional elections in Masbate, complaints for violations of Section 261 of the Omnibus Election Code (BP Blg. 881) were filed with the Office of the Provincial Fiscal of Masbate against the private respondents as follows: 1) by Jolly Fernandez, then Officer-in-Charge of the Office of the Governor, against the spouses Jaime and Adoracion Tayong - for violation of Section 261, paragraph a-1, for vote-buying; chanrobles virtual law library 2) by Ladislao Bataliran against Salvacion Colambot - for violation of Section 261, paragraph a-1, also for vote buying; and chanrobles virtual law library 3) by PC/Sgt Arturo Rebaya against Melchor Yanson - for violation of Section 261, paragraph p, for carrying of deadly weapon. After preliminary investigation of the foregoing complaints, the Provincial Fiscal of Masbate filed in the Regional Trial Court, Branch 49, Cataingan, Masbate,. the following criminal complaints: (1,) Criminal Case No. 324 against the spouses Tayong; (2) Criminal Case No. 326 against Salvacion Colambot and (3) Criminal Case No. 375 against Melchor Yanson.chanroblesvirtualawlibrary chanrobles virtual law library In three (3) separate orders, all dated 6 October 1987, and Identical in tenor save for the names of the accused respondent Judge Henry Basilla motu proprio dismissed the three (3) informations filed by the Provincial Fiscal, giving the following justification: xxx xxx xxx chanrobles virtual law library The record shows that the complainant filed the complaint with the fiscal and not with the COMELEC. The COMELEC did not investigate the case. The Constitution of the Republic of the Philippines says: chanrobles virtual law library "Sec. 2(6) of Art. IX (C) The Commission on Election shall exercise the following powers and functions: xxx xxx xxx ... ; investigate and, when appropriate prosecute cases of violation of election laws, including acts or omissions, constituting election frauds offenses, malpractices." The Omnibus Election Election Code of the Philippines (BP Blg, 881) says: Sec. 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 complaint may file the complaint with the office of the fiscal or with the Ministry of Justice. for proper investigation and prosecution, if warranted. (Sec. 182, 1978, EC; and Sec. 66. BP 697) 356 Election Laws COMELEC
In the landmark case of De Jesus vs. People, L-60998, February 120 SCRA 760, the the Supreme Court ruled: The grant to the COMELEC of the power. among others, to enforce and administer all laws relative to the conduct of election and the concomitant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to ensure the free, and honest conduct of elections, failure of which would result i ii 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. To divest the COMELEC of the authority to investigate and prosecute election offenses committed by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate. Consistently, and lately, in Corpu[s], et al. vs. Tanodbayan of the Philippines', et al., L-62075, April 15, 1987, our Supreme Court rules: An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear intention to place in the COMELEC exclusive jurisdiction to investigate and prosecute election offenses committed by any person, whether private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in view of its all embracing power over the conduct of election. IN THE LIGHT OF ALL THE FOREGOING, inasmuch as the election offense was not investigated and prosecuted by 1 the COMELEC. the case is motu proprio dismissed. chanrobles virtual law library The People moved for reconsideration of respondent Judge's orders, without success.chanroblesvirtualawlibrary chanrobles virtual law library The instant Petition for Review assails the three (3) orders dismissing the three (3 ) criminal informations against the private respondents, as constituting grave abuse of discretion amounting to lack of jurisdiction. The Petition argues principally that the Commission on Elections ("Comelec") has authority to deputize the chief state prosecutors, provincial and city fiscals and their assistants, under Sections 2 (4) and (8 ), Article IX-C of the 1987 Constitution, and that the Comelec did deputize such prosecution officers to conduct preliminary investigation of complaints for alleged violation of election laws and to institute criminal informations therefor.chanroblesvirtualawlibrary chanrobles virtual law library The Petition must be granted.chanroblesvirtualawlibrary chanrobles virtual law library There is no dispute that the Comelec is vested with power and authority to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code and to prosecute such offenses in court. Section 265 of this Code reads as follows: See. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. (Sec. 182, 1973 EC; and Sec. 66, BP 697) (Emphasis supplied) We note that while Section 265 of the Code vests "exclusive power" to conduct preliminary investigation of election offenses and to prosecute the same upon the Comelec, it at the same time authorizes the Comelec to avail itself of the assistance of other prosecuting arms of the Government. Section 2 of Article IX-C of the 1 987 Constitution clearly envisage that the Comelec would not be compelled to carry out all its functions directly and by itself alone: Section 2. The Commission on Elections shall exercise the following powers and functions: chanrobles virtual law library (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.chanroblesvirtualawlibrary chanrobles virtual law library xxx xxx xxx chanrobles virtual law library
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(4) Deputize, with the concurrence of the President, law enforcementi agencies and instrumantalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free orderly, honest, peaceful, and credible elections.chanroblesvirtualawlibrary chanrobles virtual law library xxx xxx xxx chanrobles virtual law library (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 violation of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. chanrobles virtual law library xxx xxx xxx chanrobles virtual law library (8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision.chanroblesvirtualawlibrary chanrobles virtual law library xxx xxx xxx chanrobles virtual law library (Emphasis supplied) The concurrence of the President with the deputation by Comelec of the prosecuting arms of the Government, was expressed in general terms and in advance in Executive Order No. 134. dated 27 February 1987, entitled "Enabling Act for the Elections for members of Congress on May 11, 1987, and for other purposes." Executive Order No. 134 provided in pertinent portion as follows: xxx xxx xxx chanrobles virtual law library See. 11. Prosecution. - Commission shall, through its duly authorized legal officers, have exclusive power to conduct preliminary investigation of all election offenses punishable as provided for in the preceding section, and to prosecute the same: Provided, That in the event that the Commission fails to act on any complaint within two (2) months from filing, the complainant may file the complaint with the Office the Fiscal or with the Department for Justice for proper investigation and prosecution, if warranted. The Commission may avail of the assistance of other prosecuting arms of the government. (Emphasis supplied) On 9 March 1987, the Comelec enacted its Resolution No. 1862. The pertinant operative portions of this resolution are the following: xxx xxx xxx chanrobles virtual law library NOW, THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the Constitution of the Republic of the, Philippines, the Omnibus Election Code and Executive Orders Nos. 50, 94, 134 and 144, has RESOLVED to designate, as it hereby designates the Chief State Prosecutor, all Provincial and City Fiscalss and their respective Assistants as its deputies in connection with the elections for Members of Congress on May 11, 1987, to perform the following duties and functions: 1. Conduct prelimiry investigation of complaints involving election offenses under the Omnibus Election Code which may be filed directly with them, or which may be endorsed to them by the Commission or its authorized representatives; and chanrobles virtual law library 2. Whenever a prima facie case exists, file the proper information in court and prosecute the same. Preliminary investigation of cases filed directly with, or endorsed to, Provincial and City Fiscals, and/or their respective Assistants shall be conducted immediately and shall be finished within thirty (30) days from the filing thereof and, for this purpose, they are enjoined to hold office on a twenty-four (24) hour basis during the registration of voters on April 11 and 12, 1987, on Election Day on May 11, 1987, and until midnight on Revision Day on May 2, 1987. Provincial and City Fiscals and their respective Assistants shall submit to the Commission a report on every case directly filed with them and thereafter, monthly progress reports on the status of the cases handled by them, including 358 Election Laws COMELEC
those endorsed by the Commission or its authorized representatives.chanroblesvirtualawlibrary chanrobles virtual law library This Resolution shall take effect immediately. (Emphasis supplied) The contention of private respondents that the deputation by the Comelec of the prosecuting arms of the Government would be warranted only before the elections and only to ensure tree, honest, orderly, peaceful and credible elections, that is, to perform the peace-keeping functions of policemen, lack substance. There is nothing in Section 2 (4) of Article IX-C of the Constitution which requires such a pinched niggardly interpretation of the authority of the Comelec to appoint as its deputies, officials or employees of other agencies and instrumentalities of the government. The prompt investigation and prosecution and disposition of election offenses constitute an indispensable part of the task of securing free, orderly, honest, peaceful and credible elections. The investigation and prosecution of election offenses are, in an important sense, more important than the maintenance of physical order in election precinct. 'without the assistance of provincial and city fiscals and their assistants and staff members, and of the state prosecutors of the Department of Justice, the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible, unless, perhaps, the Comelec had a bureaucracy many times larger than what it actually has. Moreover, the prosecution officers designated by the Comelec become deputies or agents of the Comelec and pro tanto subject to the authority, control and supervision of the Comelec in respect of the particular functions covered by such deputation. The acts of such deputies within the lawful scope of their delegated authority are, in legal contemplation, the acts of the Comelec itself. The only limitation the Constitution itself places upon the Comelec's authority over its deputies relates to the enforcement of such authority through administrative sanctions. Such sanctions-e.g., suspension or removal-may be recommended by the Comelec to the President (Sec. 2 [8], Article IX-C, 1987 Constitution) rather than directly imposed by the Comelec, evidently, to pre-empt and avoid potential difficulties with the executive department of the Government where the prosecution and other officers deputized are ordinarily located.chanroblesvirtualawlibrary chanrobles virtual law library All this the respondent Judge disregarded when he motu proprio dismissed the criminal informations filed in this case. The cases he cited in his identical orders - De Jesus v. People, 120 SCRA 760 (1983) and Corpus, et al. v. Tanodbayan, 149 SCRA 281 (1987) can offer him no comfort at all; for these cases do not relate to the authority of the Comelec to deputize the regular prosecution arms of the Government for the investigation and prosecution of election offenses and those cases are not in conflict with our ruling here.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the Petition for Review on certiorari is hereby GRANTED due course and the Orders of the trial court all dated October 6, 1987 in Criminal Cases Nos. 324, 326 and 375 and the Order dated December 7, 1987 in the same cases denying the People's Motion for Reconsideration, are hereby SET ASIDE and ANNULLED. The trial court is ORDERED to proceed forthwith with the continuation of Criminal Cases Nos. 324, 326 and 375 and until termination thereof. Costs against private respondents.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 88919 July 25, 1990 PEOPLE OF THE PHILIPPINES, Petitioner, vs. HONORABLE ENRIQUE B. INTING, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 38, DUMAGUETE CITY, AND OIC MAYOR DOMINADOR S. REGALADO, JR., Respondents.
GUTIERREZ, JR., J.: Does a preliminary investigation conducted by a Provincial Election Supervisor involving election offenses have to be coursed through the Provincial Fiscal now Provincial Prosecutor, before the Regional Trial Court may take cognizance of the investigation and determine whether or not probable cause exists? chanrobles virtual law library On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador Regalado of Tanjay, Negros Oriental with the Commission on Elections (COMELEC), for allegedly transferring her, a permanent Nursing Attendant, Grade I, in the office of the Municipal Mayor to a very remote barangay and without obtaining prior permission or clearance from COMELEC as required by law.chanroblesvirtualawlibrary chanrobles virtual law library Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervisor of Dumaguete City: (1) to conduct the preliminary investigation of the case; (2) to prepare and file the necessary information in court; (3) to handle the prosecution if the evidence submitted shows a prima facie case and (3) to issue a resolution of prosecution or dismissal as the case may be. The directive to conduct the preliminary investigation was pursuant to COMELEC Resolution No. 1752 dated January 14, 1986. The resolution, in turn, is based on the constitutional mandate that the COMELEC is charged with the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections (sec. 2, Article XII-C of the 1973 Constitution) and on the Omnibus Election Code which implements the constitutional provision. The Resolution provides, among others: xxx xxx xxx chanrobles virtual law library Further, Regional Election Directors and Provincial Election Supervisors are hereby authorized to conduct preliminary investigations of election offenses committed in their respective jurisdictions, file the corresponding complaints and/or informations in court whenever warranted, and to prosecute the same pursuant to Section 265 of the Omnibus Election Code. (Rollo, p. 15) After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima facie case. Hence, on September 26, 1988, he filed with the respondent trial court a criminal case for violation of section 261, Par. (h), Omnibus Election Code against the OICMayor.chanroblesvirtualawlibrary chanrobles virtual law library In an Order dated September 30, 1988, the respondent court issued a warrant of arrest against the accused OIC Mayor. It also fixed the bail at five thousand pesos (P5,000.00) as recommended by the Provincial Election Supervisor.chanroblesvirtualawlibrary chanrobles virtual law library However, in an order dated October 3, 1988 and before the accused could be arrested, the trial court set aside its September 30, 1988 order on the ground that Atty. Lituanas is not authorized to determine probable cause pursuant to Section 2, Article III of the 1987 Constitution. The court stated that it "will give due course to the information filed in this case if the same has the written approval of the Provincial Fiscal after which the prosecution of the case shall be under the supervision and control of the latter." (at p. 23, Rollo, emphasis supplied) chanrobles virtual law library In another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days from receipt to file another information charging the same offense with the written approval of the Provincial Fiscal.chanroblesvirtualawlibrary chanrobles virtual law library Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988, the trial court quashed the information. A motion for reconsideration was denied.chanroblesvirtualawlibrary chanrobles virtual law library Hence, this petition.chanroblesvirtualawlibrary chanrobles virtual law library 360 Election Laws COMELEC
The respondent trial court justifies its stand on the ground that the COMELEC through its Provincial Election Supervisor lacks jurisdiction to determine the existence of probable cause in an election offense which it seeks to prosecute in court because: While under Section 265 of the Omnibus Election Code approved on December 3, 1985 duly authorized legal officers of the Commission on Elections have the exclusive power to conduct preliminary investigation of all election offenses and to prosecute the same, it is doubtful whether said authority under the auspices of the 1973 Constitution, still subsists under the 1987 Constitution which has deleted in its Section 2, Article III, the phrase "and such other responsible officer as may be authorized by law" in the equivalent section and article of the 1973 Constitution. (Rollo, p. 24) The petition is impressed with merit.chanroblesvirtualawlibrary chanrobles virtual law library We emphasize important features of the constitutional mandate that " ... no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge ... " (Article III, Section 2, Constitution) chanrobles virtual law library First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination.chanroblesvirtualawlibrary chanrobles virtual law library Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination.chanroblesvirtualawlibrary chanrobles virtual law library And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation properwhether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor.chanroblesvirtualawlibrary chanrobles virtual law library The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]): Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16 Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function ... (but) part of the prosecution's job, a function of the executive," (2) that wherever "there are enough fiscals or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessarily mean that it should be indiscriminately exercised." chanrobles virtual law library The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct preliminary investigations.chanroblesvirtualawlibrary chanrobles virtual law library This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power - indeed, it is as much a duty as it is a power - has been and remains vested in every judge by the provision in the Bill of Rights in the 1935, the 1973 and the present (1987) Constitutions securing the people against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court rule or statute to revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize that function to be judicial in nature. 361 Election Laws COMELEC
We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. It is in this context that we address the issue raised in the instant petition so as to give meaning to the constitutional power vested in the COMELEC regarding election offenses.chanroblesvirtualawlibrary chanrobles virtual law library Article IX C Section 2 of the Constitution provides: Sec. 2. The Commission on Elections shall exercise the following powers and functions chanrobles virtual law library (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.chanroblesvirtualawlibrary chanrobles virtual law library xxx xxx xxx chanrobles virtual law library (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of votes, investigate and, where appropriate, prosecute cases of violation of election laws, including acts or omission constituting election frauds, offenses, and practices. (Emphasis supplied) In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws. This means that the COMELEC is empowered to conduct preliminary investigations in cases involving election offenses for the purpose of helping the Judge determine probable cause and for filing an information in court. This power is exclusive with COMELEC. The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomittant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would 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. To divest the COMELEC of the authority to investigate and prosecute offenses committed by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate.chanroblesvirtualawlibrary chanrobles virtual law library From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceived neither explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the authority to investigate, prosecute and hear election offenses committed by public officers in relation to their office as contradistinguished from the clear and categorical bestowal of said authority and jurisdiction upon the COMELEC and the courts of first instance under Sections 182 and 184, respectively, of the Election Code of 1978.chanroblesvirtualawlibrary chanrobles virtual law library An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear intention to place in the COMELEC exclusive jurisdiction to investigate and prosecute election offenses committed by any person, whether private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in view of its all-embracing power over the conduct of elections. (Corpus v. Tanodbayan, 149 SCRA 281 [1987]) Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election offenses. If the Fiscal or Prosecutor files an information charging an election offense or prosecutes a violation of election law, it is because he has been deputized by the COMELEC. He does not do so under the sole authority of his office. (People v. Basilla, et al., G.R. Nos. 83938-40, November 6, 1989). In the instant case, there is no averment or allegation that the respondent Judge is bringing in the Provincial Fiscal as a deputy of COMELEC. He wants the Fiscal to "approve" the COMELEC's preliminary investigation.chanroblesvirtualawlibrary chanrobles virtual law library It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in effect) the President issued Executive Order No. 134 which was the ENABLING ACT FOR ELECTIONS FOR MEMBERS OF CONGRESS ON MAY 11, 1987 AND FOR OTHER PURPOSES." Section 11 thereof provides: Prosecution. The Commission shall, through its duly authorized legal officers, have exclusive power to conduct preliminary investigation of all election offenses punishable as provided for in the preceding section, and to prosecute the same: Provided, That in the event that the Commission fails to act on any complaint within two (2) months from 362 Election Laws COMELEC
filing, the complainant may file the complaint with the Office of the Fiscal or with the Department of Justice for proper investigation and prosecution, if warranted.chanroblesvirtualawlibrary chanrobles virtual law library The Commission may avail of the assistance of other prosecuting arms of the government. It is only after a preliminary examination conducted by the COMELEC through its officials or its deputies that section 2, Article III of the 1987 Constitution comes in. This is so, because, when the application for a warrant of arrest is made and the information is filed with the court, the judge will then determine whether or not a probable cause exists for the issuance of a warrant of arrest.chanroblesvirtualawlibrary chanrobles virtual law library Bearing these principles in mind, it is apparant that the respondent trial court misconstrued the constitutional provision when it quashed the information filed by the Provincial Election Supervisor. As indicated above what the respondent trial court should have done was to enforce its September 30, 1988 order, to wit: Pursuant to Circular No. 12 of the Chief Justice of the Supreme Court dated June 30, 1987 and considering that after a personal examination of the evidence submitted by the investigating Provincial Election Supervisor III Negros Oriental (Designated Legal Officer), there is reasonable ground for this Court to rely on the certification of said Provincial Election Supervisor III in the information that a probable cause exists, let a warrant issue for the arrest of the accused filing the bail at FIVE THOUSAND (P5,000.00) PESOS as recommended by the Provincial Election Supervisor III. The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3, 1988, November 22, 1988 and December 8, 1988 are REVERSED and SET ASIDE. The respondent trial court's Order dated September 30, 1988 is REINSTATED. The respondent court is ordered to proceed hearing the case with deliberate speed until its termination.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. Nos. 93419-32 September 18, 1990 PEOPLE OF THE PHILIPPINES, Petitioner, vs. HON. GUALBERTO P. DELGADO, PRESIDING JUDGE, RTC, Br. 29, Toledo City, ELSIE RAGO LUMANGTAD, VIVENCIA ABARIDO, AVELINA BUTASLAC, ROSELLANO BUTASLAC, HAYDELISA LUMANGTAD, SILVESTRE LUMANGTAD, MAXIMO RACAZA, NENA RACAZA, VICTORIANO/ VICTOR RAGO, EDNA TEJAS, MERCEDITA TEJAS, TEOFISTO TEJAS, BERNABE TOQUERO, JR., and PEDRO RAFAELA, respondents.
GANCAYCO, J.: The authority of the Regional Trial Court (RTC) to review the actions of the Commission on Elections (COMELEC) in the investigation and prosecution of election offenses filed in said court is the center of controversy of this petition.chanroblesvirtualawlibrary chanrobles virtual law library On January 14, 1988 the COMELEC received a report-complaint from Atty. Lauron E. Quilatan, Election Registrar of Toledo City, against private respondents for alleged violation of the Omnibus Election Code. The COMELEC directed Atty. Manuel Oyson, Jr., Provincial Election Supervisor of Cebu, to conduct the preliminary investigation of the case.chanroblesvirtualawlibrary chanrobles virtual law library After conducting such preliminary investigation, Oyson submitted a report on April 26, 1989 finding a prima facie case and recommending the filing of an information against each of the private respondents for violation of Section 261 (y) (2) and (5) of the Omnibus Election Code. The COMELEC en banc in minute resolution No. 89-1291 dated October 2, 1989 as amended by resolution No. 89-1574 dated November 2, 1989 resolved to file the information against the private respondents as recommended.chanroblesvirtualawlibrary chanrobles virtual law library On February 6, 1990, fifteen (15) informations were filed against each of private respondents in the RTC of Toledo City docketed as Criminal Cases Nos. TCS-1220 to TCS-1234. In three separate manifestations the Regional Election Director of Region VII was designated by the COMELEC to handle the prosecution with the authority to assign another COMELEC prosecutor.chanroblesvirtualawlibrary chanrobles virtual law library Private respondents, through counsels, then filed motions for reconsiderations and the suspension of the warrant of arrest with the respondent court on the ground that no preliminary investigation was conducted. On February 22, 1990 an order was issued by respondent court directing the COMELEC through the Regional Election Director of Region VII to conduct a reinvestigation of said cases and to submit his report within ten (10) days after termination thereof. The Toledo City INP was 1 directed to hold in abeyance the service of the warrants of arrest until the submission of the reinvestigation report. chanrobles virtual law library On March 16,1990 the COMELEC Prosecutor filed a motion for reconsideration and opposition to the motion for reinvestigation alleging therein that it is only the Supreme Court that may review the decisions, orders, rulings and resolutions of the COMELEC. This was denied in an order dated April 5, 1990 whereby the respondent trial court upheld its 2 jurisdiction over the subject matter. chanrobles virtual law library Hence, the herein petition for certiorari, mandamus and prohibition wherein the following issues are raised: (a) Whether or not the respondent Court has the power or authority to order the Commission on Elections through its Regional Election Director of Region VII or its Law Department to conduct a reinvestigation of Criminal Cases Nos. TCS-1220 to TCS-1234; chanrobles virtual law library (b) Whether or not the respondent court in issuing its disputed order dated April 5,1990 gravely usurped the functions of the Honorable Supreme Court, the sole authority that has the power to review on certiorari, decisions, orders, resolutions or instructions of the Commission on Elections; and chanrobles virtual law library
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(c) Whether or not the respondent Court has the power or authority to order the Comelec Law Department to furnish said respondent the records of preliminary investigation of the above criminal cases for purposes of 3 determining a probable cause. chanrobles virtual law library The main thrust of the petition is that inasmuch as the COMELEC is an independent constitutional body, its actions on 4 election matters may be reviewed only on certiorari by the Supreme Court. chanrobles virtual law library On the other hand, the respondents contend that since the cases were filed in court by the COMELEC as a public prosecutor, and not in the exercise of its power to decide election contests, the trial court has authority to order a reinvestigation.chanroblesvirtualawlibrary chanrobles virtual law library Section 2, Article IX-C of the Constitution provides: SEC. 2. The Commission on Elections shall exercise the following powers and functions: chanrobles virtual law library (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall chanrobles virtual law library (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or involving elective baranggay officials decided by trial courts of limited jurisdiction.chanroblesvirtualawlibrary chanrobles virtual law library Decisions, final orders, or rulings of the commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable chanrobles virtual law library (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.chanroblesvirtualawlibrary chanrobles virtual law library (4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.chanroblesvirtualawlibrary chanrobles virtual law library (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.chanroblesvirtualawlibrary chanrobles virtual law library Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission in addition to other penalties that may be prescribed by law.chanroblesvirtualawlibrary chanrobles virtual law library (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusions 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. (7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates.chanroblesvirtualawlibrary chanrobles virtual law library (8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision.chanroblesvirtualawlibrary chanrobles virtual law library
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(9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. (Emphasis supplied.) Section 52, Article VII of the Omnibus Election Code (Batas Pambansa Blg. 881) provides among the powers and functions of the COMELEC as followsSec. 52. Power and functions of the Commission on Elections.-In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of securing free, orderly and honest elections .... (Emphasis supplied.) Section 7, Article IX-A of the Constitution reads thus SEC, 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law any decision, order, of ruling or each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. (Emphasis supplied.) From the aforementioned provisions of Section 2, Article IX-C of the Constitution the powers and functions of the COMELEC may be classified in this manner (1) Enforcement of election laws; (2) Decision of election contests;
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(3) Decision of administrative questions;
(4) Deputizing of law enforcement agencies;

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(5) Registration of political parties; and chanrobles virtual law library (6) Improvement of elections.
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As provided in Section 7, Article IX of the Constitution, unless otherwise provided by law, any decision, order or ruling of the COMELEC may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.chanroblesvirtualawlibrary chanrobles virtual law library In Filipinas Engineering and Machine Shop vs. Ferrer, this Court held that "what is contemplated by the term final orders, rulings and decisions' of the COMELEC reviewable on certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by said body in the exercise of its adjudicatory or quasi-judicial powers." Thus, the decisions of the COMELEC on election contests or administrative questions brought before it are subject to judicial review only by this Court.chanroblesvirtualawlibrary chanrobles virtual law library However, under Section 2(6), of Article IX-C of the Constitution, the COMELEC may "investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses and malpractices." Under Section 265 of the Omnibus Election Code, the COMELEC, 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." chanrobles virtual law library Section 268 of the same Code provides that: "The regional trial courts shall have exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases." chanrobles virtual law library From the foregoing provisions of the Constitution and the Omnibus Election Code, it is clear that aside from the adjudicatory or quasijudicial power of the COMELEC to decide election contests and administrative questions, it is also vested the power of a public prosecutor with the exclusive authority to conduct the preliminary investigation and the prosecution of election offenses punishable under the Code before the competent court. Thus, when the COMELEC, through its duly authorized law officer, conducts the preliminary investigation of an election offense and upon a prima facie finding of a probable cause, files the information in the proper 366 Election Laws COMELEC
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court, said court thereby acquires jurisdiction over the case. Consequently, all the subsequent disposition of said case must be subject 12 to the approval of the court. The COMELEC cannot conduct a reinvestigation of the case without the authority of the court or unless 13 so ordered by the court. chanrobles virtual law library The records of the preliminary investigation required to be produced by the court must be submitted by the COMELEC. The trial court may rely on the resolution of the COMELEC to file the information, by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation, in the issuance of the warrant of arrest. Nevertheless the court may require that the record of the preliminary investigation be submitted to it to satisfy itself that there is probable cause which will warrant the 14 issuance of a warrant of arrest. chanrobles virtual law library The refusal of the COMELEC or its agents to comply with the order of the trial court requiring them to conduct a reinvestigation in this case and to submit to the court the record of the preliminary investigation on the ground that only this Court may review its actions is certainly untenable.chanroblesvirtualawlibrary chanrobles virtual law library One last word. The petition is brought in the name of the People of the Philippines. Only the Solicitor General can represent the People 15 of the Philippines in this proceeding. In the least, the consent of the Office of the Solicitor General should have been secured by the COMELEC before the filing of this petition. On this account alone, the petition should be dismissed.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED.
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EN BANC [G.R. No. 136781. October 6, 2000] VETERANS FEDERATION PARTY, ALYANSANG BAYANIHAN NG MGA MAGSASAKA, MANGGAGAWANG BUKID AT MANGINGISDA, ADHIKAIN AT KILUSAN NG ORDINARYONG TAO PARA SA LUPA, PABAHAY AT KAUNLARAN, and LUZON FARMERS PARTY, petitioners, vs. COMMISSION ON ELECTIONS, PAG-ASA, SENIOR CITIZENS, AKAP AKSYON, PINATUBO, NUPA, PRP, AMIN, PAG-ASA, MAHARLIKA, OCW-UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW, WOMEN-POWER, INC., FEJODAP, CUP, VETERANS CARE, 4L, AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN, ANAKBAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT, AABANTE KA PILIPINAS -- All Being Party-List Parties/Organizations -- and Hon. MANUEL B. VILLAR, JR. in His Capacity as Speaker of the House of Representatives, respondents. [G.R. No. 136786. October 6, 2000] AKBAYAN! (CITIZENS' ACTION PARTY), ADHIKAIN AT KILUSAN NG ORDINARYONG TAO PARA SA LUPA, PABAHAY AT KAUNLARAN (AKO), and ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES (APEC), petitioners, vs. COMMISSION ON ELECTIONS (COMELEC), HOUSE OF REPRESENTATIVES represented by Speaker Manuel B. Villar, PAG-ASA, SENIOR CITIZENS, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, MAHARLIKA, OCW, UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW, WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE, FOUR "L", AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN, ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT, AABANTE KA PILIPINAS, respondents. [G.R. No. 136795. October 6, 2000] ALAGAD (PARTIDO NG MARALITANG-LUNGSOD), NATIONAL CONFEDERATION OF SMALL COCONUT FARMERS' ORGANIZATIONS (NCSFCO), and LUZON FARMERS' PARTY (BUTIL), petitioners, vs. COMMISSION ON ELECTIONS, SENIOR CITIZENS, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, PAG-ASA, MAHARLIKA, OCW, UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW, WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE, 4L, AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN, ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT, and AABANTE KA PILIPINAS, respondents. DECISION PANGANIBAN, J.:* Prologue To determine the winners in a Philippine-style party-list election, the Constitution and Republic Act (RA) No. 7941 mandate at least four inviolable parameters. These are: First, the twenty percent allocation - the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list. Second, the two percent threshold - only those parties garnering a minimum of two percent of the total valid votes cast for the partylist system are qualified to have a seat in the House of Representatives; Third, the three-seat limit - each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one qualifying and two additional seats. Fourth, proportional representation - the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes. Because the Comelec violated these legal parameters, the assailed Resolutions must be struck down for having been issued in grave abuse of discretion. The poll body is mandated to enforce and administer election-related laws. It has no power to contravene or amend them. Neither does it have authority to decide the wisdom, propriety or rationality of the acts of Congress. Its bounden duty is to craft rules, regulations, methods and formulas to implement election laws -- not to reject, ignore, defeat, obstruct or circumvent them.
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In fine, the constitutional introduction of the party-list system - a normal feature of parliamentary democracies - into our presidential form of government, modified by unique Filipino statutory parameters, presents new paradigms and novel questions, which demand innovative legal solutions convertible into mathematical formulations which are, in turn, anchored on time-tested jurisprudence. The Case Before the Court are three consolidated Petitions for Certiorari (with applications for the issuance of a temporary restraining order or writ of preliminary injunction) under Rule 65 of the Rules of Court, assailing (1) the October 15, 1998 Resolution of the Commission on Elections (Comelec), Second Division, in Election Matter 98-065; and (2) the January 7, 1999 Resolution of the Comelec en banc, affirming the said disposition. The assailed Resolutions ordered the proclamation of thirty-eight (38) additional party-list representatives "to complete the full complement of 52 seats in the House of Representatives as provided under Section 5, Article VI of the 1987 Constitution and R.A. 7941. The Facts and the Antecedents Our 1987 Constitution introduced a novel feature into our presidential system of government -- the party-list method of representation. Under this system, any national, regional or sectoral party or organization registered with the Commission on Elections may participate in the election of party-list representatives who, upon their election and proclamation, shall sit in the House of Representatives as regular members. In effect, a voter is given two (2) votes for the House -- one for a district congressman and another for a party-list representative. Specifically, this system of representation is mandated by Section 5, Article VI of the Constitution, which provides: Sec. 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected by a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. Complying with its constitutional duty to provide by law the selection or election of party-list representatives, Congress enacted RA 7941 on March 3, 1995. Under this statutes policy declaration, the State shall "promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. (italics ours.) The requirements for entitlement to a party-list seat in the House are prescribed by this law (RA 7941) in this wise: Sec. 11. Number of Party-List Representatives. -- The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system. In determining the allocation of seats for the second vote, the following procedure shall be observed: (a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each; Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes; Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats.
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Pursuant to Section 18 of RA 7941, the Comelec en banc promulgated Resolution No. 2847, prescribing the rules and regulations governing the election of party-list representatives through the party-list system. Election of the Fourteen Party-List Representatives On May 11, 1998, the first election for party-list representation was held simultaneously with the national elections. A total of one hundred twenty-three (123) parties, organizations and coalitions participated. On June 26, 1998, the Comelec en banc proclaimed thirteen (13) party-list representatives from twelve (12) parties and organizations, which had obtained at least two percent of the total number of votes cast for the party-list system. Two of the proclaimed representatives belonged to Petitioner APEC, which obtained 5.5 percent of the votes. The proclaimed winners and the votes cast in their favor were as follows: Party/Organization/ Number of Percentage of Nominees Coalition Votes Obtained Total Votes 1. APEC 503,487 5.5% Rene M. Silos Melvyn D. Eballe 2. ABA 321,646 3.51% Leonardo Q. Montemayor 3. ALAGAD 312,500 3.41% Diogenes S. Osabel 4. VETERANS 304,802 3.33% Eduardo P. Pilapil FEDERATION 5. PROMDI 255,184 2.79% Joy A.G. Young 6. AKO 239,042 2.61% Ariel A. Zartiga 7. NCSCFO 238,303 2.60% Gorgonio P. Unde 8. ABANSE! PINAY 235,548 2.57% Patricia M. Sarenas 9. AKBAYAN 232,376 2.54% Loreta Ann P. Rosales 10. BUTIL 215,643 2.36% Benjamin A. Cruz 11. SANLAKAS 194,617 2.13% Renato B. Magtubo 12. COOP-NATCCO 189,802 2.07% Cresente C. Paez After passing upon the results of the special elections held on July 4, 18, and 25, 1998, the Comelec en banc further determined that COCOFED (Philippine Coconut Planters Federation, Inc.) was entitled to one party-list seat for having garnered 186,388 votes, which were equivalent to 2.04 percent of the total votes cast for the party-list system. Thus, its first nominee, Emerito S. Calderon, was proclaimed on September 8, 1998 as the 14th party-list representative. On July 6, 1998, PAG-ASA (Peoples Progressive Alliance for Peace and Good Government Towards Alleviation of Poverty and Social Advancement) filed with the Comelec a "Petition to Proclaim [the] Full Number of Party-List Representatives provided by the Constitution." It alleged that the filling up of the twenty percent membership of party-list representatives in the House of Representatives, as provided under the Constitution, was mandatory. It further claimed that the literal application of the two percent vote requirement and the three-seat limit under RA 7941 would defeat this constitutional provision, for only 25 nominees would be declared winners, short of the 52 party-list representatives who should actually sit in the House. Thereafter, nine other party-list organizations filed their respective Motions for Intervention, seeking the same relief as that sought by PAG-ASA on substantially the same grounds. Likewise, PAG-ASAs Petition was joined by other party-list organizations in a Manifestation they filed on August 28, 1998. These organizations were COCOFED, Senior Citizens, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, PCCI, AMMA-KATIPUNAN, OCW-UNIFIL, KAMPIL, MAHARLIKA, AFW, Women Power, Inc., Ang Lakas OCW, FEJODAP, CUP, Veterans Care, Bantay Bayan, 4L, AWATU, PMP, ATUCP, ALU and BIGAS. On October 15, 1998, the Comelec Second Division promulgated the present assailed Resolution granting PAG-ASA's Petition. It also ordered the proclamation of herein 38 respondents who, in addition to the 14 already sitting, would thus total 52 party-list representatives. It held that "at all times, the total number of congressional seats must be filled up by eighty (80%) percent district representatives and twenty (20%) percent party-list representatives." In allocating the 52 seats, it disregarded the two percent-vote requirement prescribed under Section 11 (b) of RA 7941. Instead, it identified three "elements of the party-list system," which should supposedly determine "how the 52 seats should be filled up." First, "the system was conceived to enable the marginalized sectors of the Philippine society to be represented in the House of Representatives." Second, "the system should represent the broadest sectors of the Philippine society." Third, "it should encourage [the] multi-party system. (Boldface in the original.) Considering these elements, but ignoring the two percent threshold requirement of RA 7941, it concluded that "the party-list groups ranked Nos. 1 to 51 x x x should have at least one representative. It thus disposed as follows: "WHEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code (B.P. 881), Republic Act No. 7941 and other election laws, the Commission (Second Division) hereby resolves to GRANT the instant petition and motions for intervention, to include those similarly situated. ACCORDINGLY, the nominees from the party-list hereinbelow enumerated based on the list of names submitted by their respective parties, organizations and coalitions are PROCLAIMED as party-list representatives, to wit: 370 Election Laws COMELEC
1. SENIOR CITIZENS 2. AKAP 3. AKSYON 4. PINATUBO 5. NUPA 6. PRP 7. AMIN 8. PAG-ASA 9. MAHARLIKA 10. OCW-UNIFIL 11. FCL 12. AMMA-KATIPUNAN 13. KAMPIL 14. BANTAY BAYAN 15. AFW 16. ANG LAKAS OCW 17. WOMENPOWER, INC. 18. FEJODAP 19. CUP 20. VETERANS CARE 21. 4L 22. AWATU 23. PMP 24. ATUCP 25. NCWP 26. ALU 27. BIGAS 28. COPRA 29. GREEN 371
30. ANAKBAYAN 31. ARBA 32. MINFA 33. AYOS 34. ALL COOP 35. PDP-LABAN 36. KATIPUNAN 37. ONEWAY PRINT 38. AABANTE KA PILIPINAS to complete the full complement of 52 seats in the House of Representatives as provided in Section 5, Article VI of the 1987 Constitution and R.A. 7941. The foregoing disposition sums up a glaring bit of inconsistency and flip-flopping. In its Resolution No. 2847 dated June 25, 1996, the Comelec en banc had unanimously promulgated a set of Rules and Regulations Governing the Election of x x x Party-List Representatives Through the Party-List System. Under these Rules and Regulations, one additional seat shall be given for every two percent of the vote, a formula the Comelec illustrated in its Annex A. It apparently relied on this method when it proclaimed the 14 incumbent party-list solons (two for APEC and one each for the 12 other qualified parties). However, for inexplicable reasons, it abandoned said unanimous Resolution and proclaimed, based on its three elements, the Group of 38 private respondents. The twelve (12) parties and organizations, which had earlier been proclaimed winners on the basis of having obtained at least two percent of the votes cast for the party-list system, objected to the proclamation of the 38 parties and filed separate Motions for Reconsideration. They contended that (1) under Section 11 (b) of RA 7941, only parties, organizations or coalitions garnering at least two percent of the votes for the party-list system were entitled to seats in the House of Representatives; and (2) additional seats, not exceeding two for each, should be allocated to those which had garnered the two percent threshold in proportion to the number of votes cast for the winning parties, as provided by said Section 11. Ruling of the Comelec En Banc Noting that all the parties -- movants and oppositors alike - had agreed that the twenty percent membership of party-list representatives in the House "should be filled up, the Comelec en banc resolved only the issue concerning the apportionment or allocation of the remaining seats. In other words, the issue was: Should the remaining 38 unfilled seats allocated to party-list solons be given (1) to the thirteen qualified parties that had each garnered at least two percent of the total votes, or (2) to the Group of 38 - herein private respondents - even if they had not passed the two percent threshold? The poll body held that to allocate the remaining seats only to those who had hurdled the two percent vote requirement "will mean the concentration of representation of party, sectoral or group interests in the House of Representatives to thirteen organizations representing two political parties, three coalitions and four sectors: urban poor, veterans, women and peasantry x x x. Such strict application of the 2% 'threshold' does not serve the essence and object of the Constitution and the legislature -- to develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives x x x. Additionally, it "will also prevent this Commission from complying with the constitutional and statutory decrees for party-list representatives to compose 20% of the House of Representatives. Thus, in its Resolution dated January 7, 1999, the Comelec en banc, by a razor-thin majority -- with three commissioners concurring st and two members dissenting -- affirmed the Resolution of its Second Division. It, however, held in abeyance the proclamation of the 51 party (AABANTE KA PILIPINAS), "pending the resolution of petitions for correction of manifest errors. Without expressly declaring as unconstitutional or void the two percent vote requirement imposed by RA 7941, the Commission blithely rejected and circumvented its application, holding that there were more important considerations than this statutory threshold. Consequently, several petitions for certiorari, prohibition and mandamus, with prayers for the issuance of temporary restraining orders or writs of preliminary injunction, were filed before this Court by the parties and organizations that had obtained at least two per cent of 372 Election Laws COMELEC
the total votes cast for the party-list system. In the suits, made respondents together with the Comelec were the 38 parties, organizations and coalitions that had been declared by the poll body as likewise entitled to party-list seats in the House of Representatives. Collectively, petitioners sought the proclamation of additional representatives from each of their parties and organizations, all of which had obtained at least two percent of the total votes cast for the party-list system. On January 12, 1999, this Court issued a Status Quo Order directing the Comelec to CEASE and DESIST from constituting itself as a National Board of Canvassers on 13 January 1999 or on any other date and proclaiming as winners the nominees of the parties, organizations and coalitions enumerated in the dispositive portions of its 15 October 1998 Resolution or its 7 January 1999 Resolution, until further orders from this Court. On July 1, 1999, oral arguments were heard from the parties. Atty. Jeremias U. Montemayor appeared for petitioners in GR No. 136781; Atty. Gregorio A. Andolana, for petitioners in GR No. 136786; Atty. Rodante D. Marcoleta for petitioners in GR No. 136795; Attys. Ricardo Blancaflor and Pete Quirino Quadra, for all the private respondents; Atty. Porfirio V. Sison for Intervenor NACUSIP; and Atty. Jose P. Balbuena for Respondent Comelec. Upon invitation of the Court, retired Comelec Commissioner Regalado E. Maambong acted as amicus curiae. Solicitor General Ricardo P. Galvez appeared, not for any party but also as a friend of the Court. Thereafter, the parties and the amici curiae were required to submit their respective Memoranda in amplification of their verbal arguments. The Issues The Court believes, and so holds, that the main question of how to determine the winners of the subject party-list election can be fully settled by addressing the following issues: 1. Is the twenty percent allocation for party-list representatives mentioned in Section 5 (2), Article VI of the Constitution, mandatory or is it merely a ceiling? In other words, should the twenty percent allocation for party-list solons be filled up completely and all the time? 2. Are the two percent threshold requirement and the three-seat limit provided in Section 11 (b) of RA 7941 constitutional? 3. If the answer to Issue 2 is in the affirmative, how should the additional seats of a qualified party be determined? The Courts Ruling The Petitions are partly meritorious. The Court agrees with petitioners that the assailed Resolutions should be nullified, but disagrees that they should all be granted additional seats. First Issue: Whether the Twenty Percent Constitutional Allocation Is Mandatory The pertinent provision of the Constitution on the composition of the House of Representatives reads as follows: Sec. 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected by a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. Determination of the Total Number of Party-List Lawmakers Clearly, the Constitution makes the number of district representatives the determinant in arriving at the number of seats allocated for party-list lawmakers, who shall comprise "twenty per centum of the total number of representatives including those under the party-list." We thus translate this legal provision into a mathematical formula, as follows: No. of district representatives ---------------------------------- x .20 = No. of party-list .80 representatives
373
This formulation means that any increase in the number of district representatives, as may be provided by law, will necessarily result in a corresponding increase in the number of party-list seats. To illustrate, considering that there were 208 district representatives to be elected during the 1998 national elections, the number of party-list seats would be 52, computed as follows: 208 -------- x .20 = 52 .80 The foregoing computation of seat allocation is easy enough to comprehend. The problematic question, however, is this: Does the Constitution require all such allocated seats to be filled up all the time and under all circumstances? Our short answer is No. Twenty Percent Allocation a Mere Ceiling The Constitution simply states that "[t]he party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. According to petitioners, this percentage is a ceiling; the mechanics by which it is to be filled up has been left to Congress. In the exercise of its prerogative, the legislature enacted RA 7941, by which it prescribed that a party, organization or coalition participating in the party-list election must obtain at least two percent of the total votes cast for the system in order to qualify for a seat in the House of Representatives. Petitioners further argue that the constitutional provision must be construed together with this legislative requirement. If there is no sufficient number of participating parties, organizations or coalitions which could hurdle the two percent vote threshold and thereby fill up the twenty percent party-list allocation in the House, then naturally such allocation cannot be filled up completely. The Comelec cannot be faulted for the "incompleteness," for ultimately the voters themselves are the ones who, in the exercise of their right of suffrage, determine who and how many should represent them. On the other hand, Public Respondent Comelec, together with the respondent parties, avers that the twenty percent allocation for partylist lawmakers is mandatory, and that the two percent vote requirement in RA 7941 is unconstitutional, because its strict application would make it mathematically impossible to fill up the House party-list complement. We rule that a simple reading of Section 5, Article VI of the Constitution, easily conveys the equally simple message that Congress was vested with the broad power to define and prescribe the mechanics of the party-list system of representation. The Constitution explicitly sets down only the percentage of the total membership in the House of Representatives reserved for party-list representatives. In the exercise of its constitutional prerogative, Congress enacted RA 7941. As said earlier, Congress declared therein a policy to promote "proportional representation" in the election of party-list representatives in order to enable Filipinos belonging to the marginalized and underrepresented sectors to contribute legislation that would benefit them. It however deemed it necessary to require parties, organizations and coalitions participating in the system to obtain at least two percent of the total votes cast for the party-list system in order to be entitled to a party-list seat. Those garnering more than this percentage could have "additional seats in proportion to their total number of votes. Furthermore, no winning party, organization or coalition can have more than three seats in the House of Representatives. Thus the relevant portion of Section 11(b) of the law provides: (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each; Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes; Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Considering the foregoing statutory requirements, it will be shown presently that Section 5 (2), Article VI of the Constitution is not mandatory. It merely provides a ceiling for party-list seats in Congress. On the contention that a strict application of the two percent threshold may result in a mathematical impossibility, suffice it to say that the prerogative to determine whether to adjust or change this percentage requirement rests in Congress. Our task now, as should have been the Comelecs, is not to find fault in the wisdom of the law through highly unlikely scenarios of clinical extremes, but to craft an innovative mathematical formula that can, as far as practicable, implement it within the context of the actual election process. Indeed, the function of the Supreme Court, as well as of all judicial and quasi-judicial agencies, is to apply the law as we find it, not to reinvent or second-guess it. Unless declared unconstitutional, ineffective, insufficient or otherwise void by the proper tribunal, a statute remains a valid command of sovereignty that must be respected and obeyed at all times. This is the essence of the rule of law. Second Issue: The Statutory Requirement and Limitation 374 Election Laws COMELEC
The Two Percent Threshold In imposing a two percent threshold, Congress wanted to ensure that only those parties, organizations and coalitions having a sufficient number of constituents deserving of representation are actually represented in Congress. This intent can be gleaned from the deliberations on the proposed bill. We quote below a pertinent portion of the Senate discussion: SENATOR GONZALES: For purposes of continuity, I would want to follow up a point that was raised by, I think, Senator Osmea when he said that a political party must have obtained at least a minimum percentage to be provided in this law in order to qualify for a seat under the party-list system. They do that in many other countries. A party must obtain at least 2 percent of the votes cast, 5 percent or 10 percent of the votes cast. Otherwise, as I have said, this will actually proliferate political party groups and those who have not really been given by the people sufficient basis for them to represent their constituents and, in turn, they will be able to get to the Parliament through the backdoor under the name of the party-list system, Mr. President." A similar intent is clear from the statements of the bill sponsor in the House of Representatives, as the following shows: MR. ESPINOSA. There is a mathematical formula which this computation is based at, arriving at a five percent ratio which would distribute equitably the number of seats among the different sectors. There is a mathematical formula which is, I think, patterned after that of the party list of the other parliaments or congresses, more particularly the Bundestag of Germany. Moreover, even the framers of our Constitution had in mind a minimum-vote requirement, the specification of which they left to Congress to properly determine. Constitutional Commissioner Christian S. Monsod explained: MR. MONSOD. x x x We are amenable to modifications in the minimum percentage of votes. Our proposal is that anybody who has two-and-a-half percent of the votes gets a seat. There are about 20 million who cast their votes in the last elections. Two-and-a-half percent would mean 500,000 votes. Anybody who has a constituency of 500,000 votes nationwide deserves a seat in the Assembly. If we bring that down to two percent, we are talking about 400,000 votes. The average vote per family is three. So, here we are talking about 134,000 families. We believe that there are many sectors who will be able to get seats in the Assembly because many of them have memberships of over 10,000. In effect, that is the operational implication of our proposal. What we are trying to avoid is this selection of sectors, the reserve seat system. We believe that it is our job to open up the system and that we should not have within that system a reserve seat. We think that people should organize, should work hard, and should earn their seats within that system. The two percent threshold is consistent not only with the intent of the framers of the Constitution and the law, but with the very essence of "representation." Under a republican or representative state, all government authority emanates from the people, but is exercised by representatives chosen by them. But to have meaningful representation, the elected persons must have the mandate of a sufficient number of people. Otherwise, in a legislature that features the party-list system, the result might be the proliferation of small groups which are incapable of contributing significant legislation, and which might even pose a threat to the stability of Congress. Thus, even legislative districts are apportioned according to "the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" to ensure meaningful local representation. All in all, we hold that the statutory provision on this two percent requirement is precise and crystalline. When the law is clear, the function of courts is simple application, not interpretation or circumvention. The Three-Seat-Per-Party Limit An important consideration in adopting the party-list system is to promote and encourage a multiparty system of representation. Again, we quote Commissioner Monsod: MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system because we wanted to open up the political system to a pluralistic society through a multiparty system. But we also wanted to avoid the problems of mechanics and operation in the implementation of a concept that has very serious shortcomings of classification and of double or triple votes. We are for opening up the system, and we would like very much for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of representatives from any single party that can sit within the 50 allocated under the party list system. This way, we will open it up and enable sectoral groups, or maybe regional groups, to earn their seats among the fifty. x x x. Consistent with the Constitutional Commission's pronouncements, Congress set the seat-limit to three (3) for each qualified party, organization or coalition. "Qualified" means having hurdled the two percent vote threshold. Such three-seat limit ensures the entry of various interest-representations into the legislature; thus, no single group, no matter how large its membership, would dominate the party-list seats, if not the entire House. We shall not belabor this point, because the validity of the three-seat limit is not seriously challenged in these consolidated cases. 375 Election Laws COMELEC
Third Issue: Method of Allocating Additional Seats Having determined that the twenty percent seat allocation is merely a ceiling, and having upheld the constitutionality of the two percent vote threshold and the three-seat limit imposed under RA 7941, we now proceed to the method of determining how many party-list seats the qualified parties, organizations and coalitions are entitled to. The very first step - there is no dispute on this - is to rank all the participating parties, organizations and coalitions (hereafter collectively referred to as "parties") according to the votes they each obtained. The percentage of their respective votes as against the total number of votes cast for the party-list system is then determined. All those that garnered at least two percent of the total votes cast have an assured or guaranteed seat in the House of Representatives. Thereafter, "those garnering more than two percent of the votes shall be entitled to additional seats in proportion to their total number of votes." The problem is how to distribute additional seats "proportionally," bearing in mind the three-seat limit further imposed by the law. One Additional Seat Per Two Percent Increment One proposed formula is to allocate one additional seat for every additional proportion of the votes obtained equivalent to the two percent vote requirement for the first seat. Translated in figures, a party that wins at least six percent of the total votes cast will be entitled to three seats; another party that gets four percent will be entitled to two seats; and one that gets two percent will be entitled to one seat only. This proposal has the advantage of simplicity and ease of comprehension. Problems arise, however, when the parties get very lop-sided votes -- for example, when Party A receives 20 percent of the total votes cast; Party B, 10 percent; and Party C, 6 percent. Under the method just described, Party A would be entitled to 10 seats; Party B, to 5 seats and Party C, to 3 seats. Considering the three-seat limit imposed by law, all the parties will each uniformly have three seats only. We would then have the spectacle of a party garnering two or more times the number of votes obtained by another, yet getting the same number of seats as the other one with the much lesser votes. In effect, proportional representation will be contravened and the law rendered nugatory by this suggested solution. Hence, the Court discarded it. The Niemeyer Formula Another suggestion that the Court considered was the Niemeyer formula, which was developed by a German mathematician and adopted by Germany as its method of distributing party-list seats in the Bundestag. Under this formula, the number of additional seats to which a qualified party would be entitled is determined by multiplying the remaining number of seats to be allocated by the total number of votes obtained by that party and dividing the product by the total number of votes garnered by all the qualified parties. The integer portion of the resulting product will be the number of additional seats that the party concerned is entitled to. Thus: No. of remaining seats to be allocated No. of additional --------------------------- x No. of votes of = seats of party Total no. of votes of party concerned concerned qualified parties (Integer.decimal) The next step is to distribute the extra seats left among the qualified parties in the descending order of the decimal portions of the resulting products. Based on the 1998 election results, the distribution of party-list seats under the Niemeyer method would be as follows: Party Number of Guaranteed Additional Extra Total Votes Seats Seats Seats 1. APEC 503,487 1 5.73 1 7 2. ABA 321,646 1 3.66 1 5 3. ALAGAD 312,500 1 3.55 4 4. VETERANS 304,802 1 3.47 4 FEDERATION 5. PROMDI 255,184 1 2.90 1 4 6. AKO 239,042 1 2.72 1 4 7. NCSCFO 238,303 1 2.71 1 4 8. ABANSE! PINAY 235,548 1 2.68 1 4 9. AKBAYAN 232,376 1 2.64 1 4 10. BUTIL 215,643 1 2.45 3 11. SANLAKAS 194,617 1 2.21 3 12. COOP-NATCCO 189,802 1 2.16 3 13. COCOFED 186,388 1 2.12 3 Total 3,429,338 13 32 7 52 However, since Section 11 of RA 7941 sets a limit of three (3) seats for each party, those obtaining more than the limit will have to give up their excess seats. Under our present set of facts, the thirteen qualified parties will each be entitled to three seats, resulting in an 376 Election Laws COMELEC
overall total of 39. Note that like the previous proposal, the Niemeyer formula would violate the principle of "proportional representation," a basic tenet of our party-list system. The Niemeyer formula, while no doubt suitable for Germany, finds no application in the Philippine setting, because of our three-seat limit and the non-mandatory character of the twenty percent allocation. True, both our Congress and the Bundestag have threshold requirements -- two percent for us and five for them. There are marked differences between the two models, however. As ably pointed out by private respondents, one half of the German Parliament is filled up by party-list members. More important, there are no seat limitations, because German law discourages the proliferation of small parties. In contrast, RA 7941, as already mentioned, imposes a three-seat limit to encourage the promotion of the multiparty system. This major statutory difference makes the Niemeyer formula completely inapplicable to the Philippines. Just as one cannot grow Washington apples in the Philippines or Guimaras mangoes in the Arctic because of fundamental environmental differences, neither can the Niemeyer formula be transplanted in toto here because of essential variances between the two party-list models. The Legal and Logical Formula for the Philippines It is now obvious that the Philippine style party-list system is a unique paradigm which demands an equally unique formula. In crafting a legally defensible and logical solution to determine the number of additional seats that a qualified party is entitled to, we need to review the parameters of the Filipino party-list system. As earlier mentioned in the Prologue, they are as follows: First, the twenty percent allocation - the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list. Second, the two percent threshold - only those parties garnering a minimum of two percent of the total valid votes cast for the partylist system are qualified to have a seat in the House of Representatives; Third, the three-seat limit - each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one qualifying and two additional seats. Fourth, proportional representation - the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes. The problem, as already stated, is to find a way to translate proportional representation into a mathematical formula that will not contravene, circumvent or amend the above-mentioned parameters. After careful deliberation, we now explain such formula, step by step. Step One. There is no dispute among the petitioners, the public and the private respondents, as well as the members of this Court, that the initial step is to rank all the participating parties, organizations and coalitions from the highest to the lowest based on the number of votes they each received. Then the ratio for each party is computed by dividing its votes by the total votes cast for all the parties participating in the system. All parties with at least two percent of the total votes are guaranteed one seat each. Only these parties shall be considered in the computation of additional seats. The party receiving the highest number of votes shall thenceforth be referred to as the first party. Step Two. The next step is to determine the number of seats the first party is entitled to, in order to be able to compute that for the other parties. Since the distribution is based on proportional representation, the number of seats to be allotted to the other parties cannot possibly exceed that to which the first party is entitled by virtue of its obtaining the most number of votes. For example, the first party received 1,000,000 votes and is determined to be entitled to two additional seats. Another qualified party which received 500,000 votes cannot be entitled to the same number of seats, since it garnered only fifty percent of the votes won by the first party. Depending on the proportion of its votes relative to that of the first party whose number of seats has already been predetermined, the second party should be given less than that to which the first one is entitled. The other qualified parties will always be allotted less additional seats than the first party for two reasons: (1) the ratio between said parties and the first party will always be less than 1:1, and (2) the formula does not admit of mathematical rounding off, because there is no such thing as a fraction of a seat. Verily, an arbitrary rounding off could result in a violation of the twenty percent allocation. An academic mathematical demonstration of such incipient violation is not necessary because the present set of facts, given the number of qualified parties and the voting percentages obtained, will definitely not end up in such constitutional contravention. 377 Election Laws COMELEC
The Court has previously ruled in Guingona Jr. v. Gonzales that a fractional membership cannot be converted into a whole membership of one when it would, in effect, deprive another party's fractional membership. It would be a violation of the constitutional mandate of proportional representation. We said further that "no party can claim more than what it is entitled to x x x. In any case, the decision on whether to round off the fractions is better left to the legislature. Since Congress did not provide for it in the present law, neither will this Court. The Supreme Court does not make the law; it merely applies it to a given set of facts. Formula for Determining Additional Seats for the First Party Now, how do we determine the number of seats the first party is entitled to? The only basis given by the law is that a party receiving at least two percent of the total votes shall be entitled to one seat. Proportionally, if the first party were to receive twice the number of votes of the second party, it should be entitled to twice the latter's number of seats and so on. The formula, therefore, for computing the number of seats to which the first party is entitled is as follows: Number of votes of first party Proportion of votes of -------------------- = first party relative to Total votes for total votes for party-list system party-list system If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the total valid votes cast for all the party list groups, then the first party shall be entitled to two additional seats or a total of three seats overall. If the proportion of votes without a rounding off is equal to or greater than four percent, but less than six percent, then the first party shall have one additional or a total of two seats. And if the proportion is less than four percent, then the first party shall not be entitled to any additional seat. We adopted this six percent bench mark, because the first party is not always entitled to the maximum number of additional seats. Likewise, it would prevent the allotment of more than the total number of available seats, such as in an extreme case wherein 18 or more parties tie for the highest rank and are thus entitled to three seats each. In such scenario, the number of seats to which all the parties are entitled may exceed the maximum number of party-list seats reserved in the House of Representatives. Applying the above formula, APEC, which received 5.5% of the total votes cast, is entitled to one additional seat or a total of two seats. Note that the above formula will be applicable only in determining the number of additional seats the first party is entitled to. It cannot be used to determine the number of additional seats of the other qualified parties. As explained earlier, the use of the same formula for all would contravene the proportional representation parameter. For example, a second party obtains six percent of the total number of votes cast. According to the above formula, the said party would be entitled to two additional seats or a total of three seats overall. However, if the first party received a significantly higher amount of votes -- say, twenty percent -- to grant it the same number of seats as the second party would violate the statutory mandate of proportional representation, since a party getting only six percent of the votes will have an equal number of representatives as the one obtaining twenty percent. The proper solution, therefore, is to grant the first party a total of three seats; and the party receiving six percent, additional seats in proportion to those of the first party. Formula for Additional Seats of Other Qualified Parties Step Three The next step is to solve for the number of additional seats that the other qualified parties are entitled to, based on proportional representation. The formula is encompassed by the following complex fraction: No. of votes of concerned party -----------------Total no. of votes Additional seats for party-list system No. of additional for concerned = ----------------------- x seats allocated to party No. of votes of the first party first party -----------------Total no. of votes for party list system In simplified form, it is written as follows: No. of votes of 378 Election Laws COMELEC
Additional seats concerned party No. of additional for concerned = ------------------ x seats allocated to party No. of votes of the first party first party Thus, in the case of ABA, the additional number of seats it would be entitled to is computed as follows: No. of votes of Additional seats ABA No. of additional for concerned = -------------------- x seats allocated to party (ABA) No. of votes of the first party first party (APEC) Substituting actual values would result in the following equation: Additional seats 321,646 for concerned = ----------- x 1 = .64 or 0 additional seat, since party (ABA) 503,487 rounding off is not to be applied Applying the above formula, we find the outcome of the 1998 party-list election to be as follows: Organization Votes %age of Initial No. Additional Total Garnered Total Votes of Seats Seats 1. APEC 503,487 5.50% 1 1 2 2. ABA 321,646 3.51% 1 321,646 / 503,487 * 1 = 0.64 1 3. ALAGAD 312,500 3.41% 1 312,500 / 503,487 * 1 = 0.62 1 4. VETERANS 304,802 3.33% 1 304,802 / 503,487 * 1 = 0.61 1 FEDERATION 5. PROMDI 255,184 2.79% 1 255,184 / 503,487 * 1 = 0.51 1 6. AKO 239,042 2.61% 1 239,042 / 503,487 * 1 = 0.47 1 7. NCSFO 238,303 2.60% 1 238,303 / 503,487 * 1 = 0.47 1 8. ABANSE! 235,548 2.57% 1 321,646 / 503,487 * 1 = 0.47 1 PINAY 9. AKBAYAN! 232,376 2.54% 1 232,376 / 503,487 * 1 = 0.46 1 10. BUTIL 215,643 2.36% 1 215,643 / 503,487 * 1 = 0.43 1 11. SANLAKAS 194,617 2.13% 1 194,617 / 503,487 * 1 = 0.39 1 12. COOP- 189,802 2.07% 1 189,802 / 503,487 * 1 = 0.38 1 NATCCO 13. COCOFED 186,388 2.04% 1 186,388 / 503,487 * 1 = 0.37 1 Incidentally, if the first party is not entitled to any additional seat, then the ratio of the number of votes for the other party to that for the first one is multiplied by zero. The end result would be zero additional seat for each of the other qualified parties as well. The above formula does not give an exact mathematical representation of the number of additional seats to be awarded since, in order to be entitled to one additional seat, an exact whole number is necessary. In fact, most of the actual mathematical proportions are not whole numbers and are not rounded off for the reasons explained earlier. To repeat, rounding off may result in the awarding of a number of seats in excess of that provided by the law. Furthermore, obtaining absolute proportional representation is restricted by the three-seat-per-party limit to a maximum of two additional slots. An increase in the maximum number of additional representatives a party may be entitled to would result in a more accurate proportional representation. But the law itself has set the limit: only two additional seats. Hence, we need to work within such extant parameter. The net result of the foregoing formula for determining additional seats happily coincides with the present number of incumbents; namely, two for the first party (APEC) and one each for the twelve other qualified parties. Hence, we affirm the legality of the incumbencies of their nominees, albeit through the use of a different formula and methodology. In his Dissent, Justice Mendoza criticizes our methodology for being too strict. We say, however, that our formula merely translated the Philippine legal parameters into a mathematical equation, no more no less. If Congress in its wisdom decides to modify RA 7941 to make it less strict, then the formula will also be modified to reflect the changes willed by the lawmakers. Epilogue
379
In sum, we hold that the Comelec gravely abused its discretion in ruling that the thirty-eight (38) herein respondent parties, organizations and coalitions are each entitled to a party-list seat, because it glaringly violated two requirements of RA 7941: the two percent threshold and proportional representation. In disregarding, rejecting and circumventing these statutory provisions, the Comelec effectively arrogated unto itself what the Constitution expressly and wholly vested in the legislature: the power and the discretion to define the mechanics for the enforcement of the system. The wisdom and the propriety of these impositions, absent any clear transgression of the Constitution or grave abuse of discretion amounting to lack or excess of jurisdiction, are beyond judicial review. Indeed, the Comelec and the other parties in these cases - both petitioners and respondents - have failed to demonstrate that our lawmakers gravely abused their discretion in prescribing such requirements. By grave abuse of discretion is meant such capricious or whimsical exercise of judgment equivalent to lack or excess of jurisdiction. The Comelec, which is tasked merely to enforce and administer election-related laws, cannot simply disregard an act of Congress exercised within the bounds of its authority. As a mere implementing body, it cannot judge the wisdom, propriety or rationality of such act. Its recourse is to draft an amendment to the law and lobby for its approval and enactment by the legislature. Furthermore, a reading of the entire Constitution reveals no violation of any of its provisions by the strict enforcement of RA 7941. It is basic that to strike down a law or any of its provisions as unconstitutional, there must be a clear and unequivocal showing that what the Constitution prohibits, the statute permits. Neither can we grant petitioners prayer that they each be given additional seats (for a total of three each), because granting such plea would plainly and simply violate the proportional representation mandated by Section 11 (b) of RA 7941. The low turnout of the party-list votes during the 1998 elections should not be interpreted as a total failure of the law in fulfilling the object of this new system of representation. It should not be deemed a conclusive indication that the requirements imposed by RA 7941 wholly defeated the implementation of the system. Be it remembered that the party-list system, though already popular in parliamentary democracies, is still quite new in our presidential system. We should allow it some time to take root in the consciousness of our people and in the heart of our tripartite form of republicanism. Indeed, the Comelec and the defeated litigants should not despair. Quite the contrary, the dismal result of the first election for party-list representatives should serve as a challenge to our sectoral parties and organizations. It should stir them to be more active and vigilant in their campaign for representation in the State's lawmaking body. It should also serve as a clarion call for innovation and creativity in adopting this novel system of popular democracy. With adequate information dissemination to the public and more active sectoral parties, we are confident our people will be more responsive to future party-list elections. Armed with patience, perseverance and perspicacity, our marginalized sectors, in time, will fulfill the Filipino dream of full representation in Congress under the aegis of the party-list system, Philippine style. WHEREFORE, the Petitions are hereby partially GRANTED. The assailed Resolutions of the Comelec are SET ASIDE and NULLIFIED. The proclamations of the fourteen (14) sitting party-list representatives - two for APEC and one each for the remaining twelve (12) qualified parties - are AFFIRMED. No pronouncement as to costs. SO ORDERED.
380
ANG BAGONG BAYANI-OFW LABOR PARTY (under the acronym OFW), represented herein by its secretary-general, MOHAMMAD OMAR FAJARDO, petitioner, vs. ANG BAGONG BAYANI-OFW LABOR PARTY GO! GO! PHILIPPINES; THE TRUE MARCOS LOYALIST ASSOCIATION OF THE PHILIPPINES; PHILIPPINE LOCAL AUTONOMY; CITIZENS MOVEMENT FOR JUSTICE, ECONOMY, ENVIRONMENT AND PEACE; CHAMBER OF REAL ESTATE BUILDERS ASSOCIATION; SPORTS & HEALTH ADVANCEMENT FOUNDATION, INC.; ANG LAKAS NG OVERSEAS CONTRACT WORKERS (OCW); BAGONG BAYANI ORGANIZATION and others under "Organizations/Coalitions" of Omnibus Resolution No. 3785; PARTIDO NG MASANG PILIPINO; LAKAS NUCD-UMDP; NATIONALIST PEOPLE'S COALITION; LABAN NG DEMOKRATIKONG PILIPINO; AKSYON DEMOKRATIKO; PDP-LABAN; LIBERAL PARTY; NACIONALISTA PARTY; ANG BUHAY HAYAANG YUMABONG; and others under "Political Parties" of Omnibus Resolution No. 3785. respondents. x---------------------------------------------------------x G.R. No. 147613 June 26, 2001 BAYAN MUNA, petitioner, vs. COMMISSION ON ELECTIONS; NATIONALIST PEOPLE'S COALITION (NPC); LABAN NG DEMOKRATIKONG PILIPINO (LDP); PARTIDO NG MASANG PILIPINO (PMP); LAKAS-NUCD-UMDP; LIBERAL PARTY; MAMAMAYANG AYAW SA DROGA; CREBA; NATIONAL FEDERATION OF SUGARCANE PLANTERS; JEEP; and BAGONG BAYANI ORGANIZATION, respondents. PANGANIBAN, J.: The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. It intends to make the marginalized and the underrepresented not merely passive recipients of the State's benevolence, but active participants in the mainstream of representative democracy. Thus, allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics. The Case Before us are two Petitions under Rule 65 of the Rules of Court, challenging Omnibus Resolution No. 3785 issued by the Commission on Elections (Comelec) on March 26, 2001. This Resolution approved the participation of 154 organizations and parties, including those herein impleaded, in the 2001 party-list elections. Petitioners seek the disqualification of private respondents, arguing mainly that the party-list system was intended to benefit the marginalized and underrepresented; not the mainstream political parties, the nonmarginalized or overrepresented. The Factual Antecedents With the onset of the 2001 elections, the Comelec received several Petitions for registration filed by sectoral parties, organizations and political parties. According to the Comelec, "[v]erifications were made as to the status and capacity of these parties and organizations and hearings were scheduled day and night until the last party w[as] heard. With the number of these petitions and the observance of the legal and procedural requirements, review of these petitions as well as deliberations takes a longer process in order to arrive at a decision and as a result the two (2) divisions promulgated a separate Omnibus Resolution and individual resolution on political parties. These numerous petitions and processes observed in the disposition of these petition[s] hinder the early release of the Omnibus 2 Resolutions of the Divisions which were promulgated only on 10 February 2001." Thereafter, before the February 12, 2001 deadline prescribed under Comelec Resolution No. 3426 dated December 22, 2000, the registered parties and organizations filed their respective Manifestations, stating their intention to participate in the party-list elections. Other sectoral and political parties and organizations whose registrations were denied also filed Motions for Reconsideration, together with Manifestations of their intent to participate in the party-list elections. Still other registered parties filed their Manifestations beyond the deadline. 381 Election Laws COMELEC
1
The Comelec gave due course or approved the Manifestations (or accreditations) of 154 parties and organizations, but denied those of several others in its assailed March 26, 2001 Omnibus Resolution No. 3785, which we quote: "We carefully deliberated the foregoing matters, having in mind that this system of proportional representation scheme will encourage multi-partisan [sic] and enhance the inability of small, new or sectoral parties or organization to directly participate in this electoral window. "It will be noted that as defined, the 'party-list system' is a 'mechanism of proportional representation' in the election of representatives to the House of Representatives from national, regional, and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections. "However, in the course of our review of the matters at bar, we must recognize the fact that there is a need to keep the number of sectoral parties, organizations and coalitions, down to a manageable level, keeping only those who substantially comply with the rules and regulations and more importantly the sufficiency of the Manifestations or evidence on the Motions for Reconsiderations or 3 Oppositions." On April 10, 2001, Akbayan Citizens Action Party filed before the Comelec a Petition praying that "the names of [some of herein respondents] be deleted from the 'Certified List of Political Parties/Sectoral Parties/Organizations/Coalitions Participating in the Party List System for the May 14, 2001 Elections' and that said certified list be accordingly amended." It also asked, as an alternative, that the 4 votes cast for the said respondents not be counted or canvassed, and that the latter's nominees not be proclaimed. On April 11, 2001, Bayan Muna and Bayan Muna-Youth also filed a Petition for Cancellation of Registration and Nomination against some of herein 5 respondents. On April 18, 2001, the Comelec required the respondents in the two disqualification cases to file Comments within three days from 6 7 notice. It also set the date for hearing on April 26, 2001, but subsequently reset it to May 3, 2001. During the hearing, however, 8 Commissioner Ralph C. Lantion merely directed the parties to submit their respective memoranda. Meanwhile, dissatisfied with the pace of the Comelec, Ang Bagong Bayani-OFW Labor Party filed a Petition before this Court on April 16, 2001. This Petition, docketed as GR No. 147589, assailed Comelec Omnibus Resolution No. 3785. In its Resolution dated April 17, 10 11 2001, the Court directed respondents to comment on the Petition within a non-extendible period of five days from notice. On April 17, 2001, Petitioner Bayan Muna also filed before this Court a Petition, docketed as GR No. 147613, also challenging 13 Comelec Omnibus Resolution No. 3785. In its Resolution dated May 9, 2001, the Court ordered the consolidation of the two Petitions before it; directed respondents named in the second Petition to file their respective Comments on or before noon of May 15, 2001; and called the parties to an Oral Argument on May 17, 2001. It added that the Comelec may proceed with the counting and canvassing of votes cast for the party-list elections, but barred the proclamation of any winner therein, until further orders of the Court. Thereafter, Comments on the second Petition were received by the Court and, on May 17, 2001, the Oral Argument was conducted as scheduled. In an Order given in open court, the parties were directed to submit their respective Memoranda simultaneously within a 15 non-extendible period of five days. Issues: During the hearing on May 17, 2001, the Court directed the parties to address the following issues: "1. Whether or not recourse under Rule 65 is proper under the premises. More specifically, is there no other plain, speedy or adequate remedy in the ordinary course of law? "2. Whether or not political parties may participate in the party-list elections. "3. Whether or not the party-list system is exclusive to 'marginalized and underrepresented' sectors and organizations. "4. Whether or not the Comelec committed grave abuse of discretion in promulgating Omnibus Resolution No. 3785." The Court's Ruling The Petitions are partly meritorious. These cases should be remanded to the Comelec which will determine, after summary evidentiary hearings, whether the 154 parties and organizations enumerated in the assailed Omnibus Resolution satisfy the requirements of the Constitution and RA 7941, as specified in this Decision.
16 14 12 9
382
First Issue: Recourse Under Rule 65 Respondents contend that the recourse of both petitioners under Rule 65 is improper because there are other plain, speedy and 17 adequate remedies in the ordinary course of law. The Office of the Solicitor General argues that petitioners should have filed before the Comelec a petition either for disqualification or for cancellation of registration, pursuant to Sections 19, 20, 21 and 22 of Comelec 18 19 Resolution No. 3307-A dated November 9, 2000. We disagree. At bottom, petitioners attack the validity of Comelec Omnibus Resolution 3785 for having been issued with grave abuse of 20 discretion, insofar as it allowed respondents to participate in the party-list elections of 2001. Indeed, under both the Constitution and the Rules of Court, such challenge may be brought before this Court in a verified petition for certiorari under Rule 65. Moreover, the assailed Omnibus Resolution was promulgated by Respondent Commission en banc; hence, no motion for 21 reconsideration was possible, it being a prohibited pleading under Section 1 (d), Rule 13 of the Comelec Rules of Procedure. The Court also notes that Petitioner Bayan Muna had filed before the Comelec a Petition for Cancellation of Registration and 22 Nomination against some of herein respondents. The Comelec, however, did not act on that Petition. In view of the pendency of the elections, Petitioner Bayan Muna sought succor from this Court, for there was no other adequate recourse at the time. Subsequent events have proven the urgency of petitioner's action; to this date, the Comelec has not yet formally resolved the Petition before it. But a resolution may just be a formality because the Comelec, through the Office of the Solicitor General, has made its position on the matter quite clear. In any event, this case presents an exception to the rule that certiorari shall lie only in the absence of any other plain, speedy and 23 adequate remedy. It has been held that certiorari is available, notwithstanding the presence of other remedies, "where the issue 24 raised is one purely of law, where public interest is involved, and in case of urgency." Indeed, the instant case is indubitably imbued with public interest and with extreme urgency, for it potentially involves the composition of 20 percent of the House of Representatives. Moreover, this case raises transcendental constitutional issues on the party-list system, which this Court must urgently resolve, 25 consistent with its duty to "formulate guiding and controlling constitutional principles, precepts, doctrines, or rules." Finally, procedural requirements "may be glossed over to prevent a miscarriage of justice, when the issue involves the principle of social justice x x x when the decision sought to be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is 26 the only adequate and speedy remedy available." Second Issue: Participation of Political Parties In its Petition, Ang Bagong Bayani-OFW Labor Party contends that "the inclusion of political parties in the party-list system is the most 27 objectionable portion of the questioned Resolution." For its part, Petitioner Bayan Muna objects to the participation of "major political 28 parties." On the other hand, the Office of the Solicitor General, like the impleaded political parties, submits that the Constitution and RA No. 7941 allow political parties to participate in the party-list elections. It argues that the party-list system is, in fact, open to all 29 "registered national, regional and sectoral parties or organizations." We now rule on this issue. Under the Constitution and RA 7941, private respondents cannot be disqualified from the party-list elections, merely on the ground that they are political parties. Section 5, Article VI of the Constitution provides that members of the House of Representatives may "be elected through a party-list system of registered national, regional, and sectoral parties or organizations." Furthermore, under Sections 7 and 8, Article IX (C) of the Constitution, political parties may be registered under the party-list system. "Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution. "Sec. 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters' registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be 30 entitled to appoint poll watchers in accordance with law." During the deliberations in the Constitutional Commission, Comm. Christian S. Monsod pointed out that the participants in the party-list 31 32 system may "be a regional party, a sectoral party, a national party, UNIDO, Magsasaka, or a regional party in Mindanao." This was 33 also clear from the following exchange between Comms. Jaime Tadeo and Blas Ople: 383 Election Laws COMELEC
"MR. TADEO. Naniniwala ba kayo na ang party list ay pwedeng paghati-hatian ng UNIDO, PDP-Laban, PNP, Liberal at Nacionalista? MR. OPLE. Maaari yan sapagkat bukas ang party list system sa lahat ng mga partido." Indeed, Commissioner Monsod stated that the purpose of the party-list provision was to open up the system, in order to give a chance 34 to parties that consistently place third or fourth in congressional district elections to win a seat in Congress. He explained: "The purpose of this is to open the system. In the past elections, we found out that there were certain groups or parties that, if we count their votes nationwide, have about 1,000,000 or 1,500,000 votes. But they were always third or fourth place in each of the districts. So, they have no voice in the Assembly. But this way, they would have five or six representatives in the Assembly even if they would not win individually in legislative districts. So, that is essentially the mechanics, the purpose and objectives of the party-list system." For its part, Section 2 of RA 7941 also provides for "a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, x x x." Section 3 expressly states that a "party" is "either a political party or a sectoral party or a coalition of parties." More to the point, the law defines "political party" as "an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office." Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political parties in the party-list system. We quote the pertinent provision below: "x x x "For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system. x x x" Indubitably, therefore, political parties even the major ones -- may participate in the party-list elections. Third Issue: Marginalized and Underrepresented That political parties may participate in the party-list elections does not mean, however, that any political party -- or any organization or group for that matter -- may do so. The requisite character of these parties or organizations must be consistent with the purpose of the party-list system, as laid down in the Constitution and RA 7941. Section 5, Article VI of the Constitution, provides as follows: "(1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector." (Emphasis supplied.) Notwithstanding the sparse language of the provision, a distinguished member of the Constitutional Commission declared that the purpose of the party-list provision was to give "genuine power to our people" in Congress. Hence, when the provision was discussed, he exultantly announced: "On this first day of August 1986, we shall, hopefully, usher in a new chapter to our national history, by giving 35 genuine power to our people in the legislature." The foregoing provision on the party-list system is not self-executory. It is, in fact, interspersed with phrases like "in accordance with law" or "as may be provided by law"; it was thus up to Congress to sculpt in granite the lofty objective of the Constitution. Hence, RA 7941 was enacted. It laid out the statutory policy in this wise: "SEC. 2. Declaration of Policy. -- The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack 384 Election Laws COMELEC
well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible." The Marginalized and Underrepresented to Become Lawmakers Themselves The foregoing provision mandates a state policy of promoting proportional representation by means of the Filipino-style party-list system, which will "enable" the election to the House of Representatives of Filipino citizens, 1. who belong to marginalized and underrepresented sectors, organizations and parties; and 2. who lack well-defined constituencies; but 3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. The key words in this policy are "proportional representation," "marginalized and underrepresented," and "lack constituencies."
of
well-defined
"Proportional representation" here does not refer to the number of people in a particular district, because the party-list election is national in scope. Neither does it allude to numerical strength in a distressed or oppressed group. Rather, it refers to the representation of the "marginalized and underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals." However, it is not enough for the candidate to claim representation of the marginalized and underrepresented, because representation is easy to claim and to feign. The party-list organization or party must factually and truly represent the marginalized and 36 underrepresented constituencies mentioned in Section 5. Concurrently, the persons nominated by the party-list candidateorganization must be "Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties." Finally, "lack of well-defined constituenc[y] " refers to the absence of a traditionally identifiable electoral group, like voters of a congressional district or territorial unit of government. Rather, it points again to those with disparate interests identified with the "marginalized or underrepresented." In the end, the role of the Comelec is to see to it that only those Filipinos who are "marginalized and underrepresented" become members of Congress under the party-list system, Filipino-style. The intent of the Constitution is clear: to give genuine power to the people, not only by giving more law to those who have less in life, but more so by enabling them to become veritable lawmakers themselves. Consistent with this intent, the policy of the implementing law, we repeat, is likewise clear: "to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, x x x, to become members of the House of Representatives." Where the language of the law is clear, it must be applied 37 according to its express terms. The marginalized and underrepresented sectors to be represented under the party-list system are enumerated in Section 5 of RA 7941, which states: "SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals." While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates the clear intent of the law that not all sectors can be represented under the party-list system. It is a fundamental principle of statutory construction that words employed in a statute are interpreted in connection with, and their meaning is ascertained by reference to, the words and the phrases with which they are associated or related. Thus, the meaning of a term in a statute may be limited, qualified or specialized by those in 38 immediate association.
385
The Party-List System Desecrated by the OSG Contentions Notwithstanding the unmistakable statutory policy, the Office of the Solicitor General submits that RA No. 7941 "does not limit the 39 participation in the party-list system to the marginalized and underrepresented sectors of society." In fact, it contends that any party or 40 group that is not disqualified under Section 6 of RA 7941 may participate in the elections. Hence, it admitted during the Oral Argument that even an organization representing the super rich of Forbes Park or Dasmarias Village could participate in the party-list 41 elections. The declared policy of RA 7941 contravenes the position of the Office of the Solicitor General (OSG). We stress that the party-list system seeks to enable certain Filipino citizens specifically those belonging to marginalized and underrepresented sectors, organizations and parties to be elected to the House of Representatives. The assertion of the OSG that the party-list system is not exclusive to the marginalized and underrepresented disregards the clear statutory policy. Its claim that even the super-rich and overrepresented can participate desecrates the spirit of the party-list system. Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be appropriated by the mansion owners of Forbes Park. The interests of these two sectors are manifestly disparate; hence, the OSG's position to treat them similarly defies 42 reason and common sense. In contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan admitted during the Oral Argument that a group of bankers, industrialists and sugar planters could not join the party-list system as representatives of their respective 43 sectors. While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are neither marginalized nor underrepresented, for the stark reality is that their economic clout engenders political power more awesome than their numerical limitation. Traditionally, political power does not necessarily emanate from the size of one's constituency; indeed, it is likely to arise more directly from the number and amount of one's bank accounts. It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who wallow in poverty, destitution and infirmity. It was for them that the party-list system was enacted -- to give them not only genuine hope, but genuine power; to give them the opportunity to be elected and to represent the specific concerns of their constituencies; and simply to give them a direct voice in Congress and in the larger affairs of the State. In its noblest sense, the party-list system truly empowers the masses and ushers a new hope for genuine change. Verily, it invites those marginalized and underrepresented in the past the farm hands, the fisher folk, the urban poor, even those in the underground movement to come out and participate, as indeed many of them came out and participated during the last elections. The State cannot now disappoint and frustrate them by disabling and desecrating this social justice vehicle. Because the marginalized and underrepresented had not been able to win in the congressional district elections normally dominated by traditional politicians and vested groups, 20 percent of the seats in the House of Representatives were set aside for the party-list system. In arguing that even those sectors who normally controlled 80 percent of the seats in the House could participate in the partylist elections for the remaining 20 percent, the OSG and the Comelec disregard the fundamental difference between the congressional district elections and the party-list elections. As earlier noted, the purpose of the party-list provision was to open up the system, in order to enhance the chance of sectoral groups 45 and organizations to gain representation in the House of Representatives through the simplest scheme possible. Logic shows that the system has been opened to those who have never gotten a foothold within it -- those who cannot otherwise win in regular elections and who therefore need the "simplest scheme possible" to do so. Conversely, it would be illogical to open the system to those who have long been within it -- those privileged sectors that have long dominated the congressional district elections. The import of the open party-list system may be more vividly understood when compared to a student dormitory "open house," which by its nature allows outsiders to enter the facilities. Obviously, the "open house" is for the benefit of outsiders only, not the dormers themselves who can enter the dormitory even without such special privilege. In the same vein, the open party-list system is only for the "outsiders" who cannot get elected through regular elections otherwise; it is not for the non-marginalized or overrepresented who already fill the ranks of Congress. Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the party-list system would not only dilute, but also prejudice the chance of the marginalized and underrepresented, contrary to the intention of the law to enhance it. The party-list system is a tool for the benefit of the underprivileged; the law could not have given the same tool to others, to the prejudice of the intended beneficiaries. This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those who are neither marginalized nor underrepresented. It cannot let that flicker of hope be snuffed out. The clear state policy must permeate every discussion of the qualification of political parties and other organizations under the party-list system. Refutation of the Separate Opinions 386 Election Laws COMELEC
44
The Separate Opinions of our distinguished colleagues, Justices Jose C. Vitug and Vicente V. Mendoza, are anchored mainly on the supposed intent of the framers of the Constitution as culled from their deliberations. The fundamental principle in constitutional construction, however, is that the primary source from which to ascertain constitutional intent or purpose is the language of the provision itself. The presumption is that the words in which the constitutional provisions are couched 46 express the objective sought to be attained. In other words, verba legis still prevails. Only when the meaning of the words used is unclear and equivocal should resort be made to extraneous aids of construction and interpretation, such as the proceedings of the Constitutional Commission or Convention, in order to shed light on and ascertain the true intent or purpose of the provision being 47 construed. Indeed, as cited in the Separate Opinion of Justice Mendoza, this Court stated in Civil Liberties Union v. Executive Secretary that "the debates and proceedings of the constitutional convention [may be consulted] in order to arrive at the reason and purpose of the resulting Constitution x x x only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention 'are of value as showing the views of the individual members, and as indicating the reason for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass or our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face.' The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers' understanding thereof." Section 5, Article VI of the Constitution, relative to the party-list system, is couched in clear terms: the mechanics of the system shall be provided by law. Pursuant thereto, Congress enacted RA 7941. In understanding and implementing party-list representation, we should therefore look at the law first. Only when we find its provisions ambiguous should the use of extraneous aids of construction be resorted to. But, as discussed earlier, the intent of the law is obvious and clear from its plain words. Section 2 thereof unequivocally states that the party-list system of electing congressional representatives was designed to "enable underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole x x x." The criteria for participation is well defined. Thus, there is no need for recourse to constitutional deliberations, not even to the proceedings of Congress. In any event, the framers' deliberations merely express their individual opinions and are, at best, only persuasive in construing the meaning and purpose of the constitution or statute. Be it remembered that the constitutionality or validity of Sections 2 and 5 of RA 7941 is not an issue here. Hence, they remain parts of the law, which must be applied plainly and simply. Fourth Issue: Grave Abuse of Discretion From its assailed Omnibus Resolution, it is manifest that the Comelec failed to appreciate fully the clear policy of the law and the Constitution. On the contrary, it seems to have ignored the facet of the party-list system discussed above. The OSG as its counsel admitted before the Court that any group, even the non-marginalized and overrepresented, could field candidates in the party-list elections. When a lower court, or a quasi-judicial agency like the Commission on Elections, violates or ignores the Constitution or the law, its 49 action can be struck down by this Court on the ground of grave abuse of discretion. Indeed, the function of all judicial and quasi50 judicial instrumentalities is to apply the law as they find it, not to reinvent or second-guess it. In its Memorandum, Petitioner Bayan Muna passionately pleads for the outright disqualification of the major political parties Respondents Lakas-NUCD, LDP, NPC, LP and PMP on the ground that under Comelec Resolution No. 4073, they have been accredited as the five (six, including PDP-Laban) major political parties in the May 14, 2001 elections. It argues that because of this, they have the "advantage of getting official Comelec Election Returns, Certificates of Canvass, preferred poll watchers x x x." We note, however, that this accreditation does not refer to the party-list election, but, inter alia, to the election of district representatives for the purpose of determining which parties would be entitled to watchers under Section 26 of Republic Act No. 7166. What is needed under the present circumstances, however, is a factual determination of whether respondents herein and, for that matter, all the 154 previously approved groups, have the necessary qualifications to participate in the party-list elections, pursuant to the Constitution and the law. Bayan Muna also urges us to immediately rule out Respondent Mamamayan Ayaw sa Droga (MAD), because "it is a government entity 51 using government resources and privileges." This Court, however, is not a trier of facts. It is not equipped to receive evidence and determine the truth of such factual allegations. 387 Election Laws COMELEC
48
Basic rudiments of due process require that respondents should first be given an opportunity to show that they qualify under the guidelines promulgated in this Decision, before they can be deprived of their right to participate in and be elected under the party-list system. Guidelines for Screening Party-List Participants The Court, therefore, deems it proper to remand the case to the Comelec for the latter to determine, after summary evidentiary hearings, whether the 154 parties and organizations allowed to participate in the party-list elections comply with the requirements of the law. In this light, the Court finds it appropriate to lay down the following guidelines, culled from the law and the Constitution, to assist the Comelec in its work. First, the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. In other words, it must show -- through its constitution, articles of incorporation, bylaws, history, platform of government and track record -- that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its membership should belong to the marginalized and underrepresented. And it must demonstrate that in a conflict of interests, it has chosen or is likely to choose the interest of such sectors. Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy of enabling "Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the House of Representatives." In other words, while they are not disqualified merely on the ground that they are political parties, they must show, however, that they represent the interests of the marginalized and underrepresented. The counsel of Aksyon Demokratiko and other similarly situated political parties admitted as much during the Oral Argument, as the following quote shows: "JUSTICE PANGANIBAN: I am not disputing that in my question. All I am saying is, the political party must claim to represent the marginalized and underrepresented sectors? ATTY. KAPUNAN: Yes, Your Honor, the answer is yes."
53 52
Third, in view of the objections directed against the registration of Ang Buhay Hayaang Yumabong, which is allegedly a religious group, the Court notes the express constitutional provision that the religious sector may not be represented in the party-list system. The extent of the constitutional proscription is demonstrated by the following discussion during the deliberations of the Constitutional Commission: "MR. OPLE. x x x In the event that a certain religious sect with nationwide and even international networks of members and supporters, in order to circumvent this prohibition, decides to form its own political party in emulation of those parties I had mentioned earlier as deriving their inspiration and philosophies from well-established religious faiths, will that also not fall within this prohibition? MR. MONSOD. If the evidence shows that the intention is to go around the prohibition, then certainly the Comelec can pierce through 54 the legal fiction." The following discussion is also pertinent: "MR. VILLACORTA. When the Commissioner proposed "EXCEPT RELIGIOUS GROUPS," he is not, of course, prohibiting priests, imams or pastors who may be elected by, say, the indigenous community sector to represent their group. REV. RIGOS. Not at all, but I am objecting to anybody who represents the Iglesia ni Kristo, the Catholic Church, the Protestant Church 55 et cetera." Furthermore, the Constitution provides that "religious denominations and sects shall not be registered." The prohibition was explained 57 by a member of the Constitutional Commission in this wise: "[T] he prohibition is on any religious organization registering as a political party. I do not see any prohibition here against a priest running as a candidate. That is not prohibited here; it is the registration of a 58 religious sect as a political party." Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which enumerates the grounds for disqualification as follows: "(1) It is a religious sect or denomination, organization or association organized for religious purposes; 388 Election Laws COMELEC
56
(2) It advocates violence or unlawful means to seek its goal; (3) It is a foreign party or organization; (4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; (5) It violates or fails to comply with laws, rules or regulations relating to elections; (6) It declares untruthful statements in its petition; (7) It has ceased to exist for at least one (1) year; or (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast 59 under the party-list system in the two (2) preceding elections for the constituency in which it has registered." Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to comply with election laws and regulations. These laws include Section 2 of RA 7941, which states that the party-list system seeks to "enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties x x x to become members of the House of Representatives." A party or an organization, therefore, that does not comply with this policy must be disqualified. Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government. By the very nature of the party-list system, the party or organization must be a group of citizens, organized by citizens and operated by citizens. It must be independent of the government. The participation of the government or its officials in the affairs of a party-list 60 candidate is not only illegal and unfair to other parties, but also deleterious to the objective of the law: to enable citizens belonging to marginalized and underrepresented sectors and organizations to be elected to the House of Representatives. Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do so. Section 9 of RA 7941 reads as follows: "SEC. 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term." Seventh, not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the nominees must be Filipino citizens "who belong to marginalized and underrepresented sectors, organizations and parties." Surely, the interests of the youth cannot be fully represented by a retiree; neither can those of the urban poor or the working class, by an industrialist. To allow otherwise is to betray the State policy to give genuine representation to the marginalized and underrepresented. Eighth, as previously discussed, while lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. Senator Jose Lina explained during the 61 bicameral committee proceedings that "the nominee of a party, national or regional, is not going to represent a particular district x x x." Epilogue The linchpin of this case is the clear and plain policy of the law: "to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives." Crucial to the resolution of this case is the fundamental social justice principle that those who have less in life should have more in law. The party-list system is one such tool intended to benefit those who have less in life. It gives the great masses of our people genuine hope and genuine power. It is a message to the destitute and the prejudiced, and even to those in the underground, that change is possible. It is an invitation for them to come out of their limbo and seize the opportunity. 389 Election Laws COMELEC
Clearly, therefore, the Court cannot accept the submissions of the Comelec and the other respondents that the party-list system is, without any qualification, open to all. Such position does not only weaken the electoral chances of the marginalized and underrepresented; it also prejudices them. It would gut the substance of the party-list system. Instead of generating hope, it would create a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their marginalization. In effect, the Comelec would have us believe that the party-list provisions of the Constitution and RA 7941 are nothing more than a play on dubious words, a mockery of noble intentions, and an empty offering on the altar of people empowerment. Surely, this could not have been the intention of the framers of the Constitution and the makers of RA 7941. WHEREFORE, this case is REMANDED to the Comelec, which is hereby DIRECTED to immediately conduct summary evidentiary hearings on the qualifications of the party-list participants in the light of the guidelines enunciated in this Decision. Considering the extreme urgency of determining the winners in the last party-list elections, the Comelec is directed to begin its hearings for the parties and organizations that appear to have garnered such number of votes as to qualify for seats in the House of Representatives. The Comelec is further DIRECTED to submit to this Court its compliance report within 30 days from notice hereof.1wphi1.nt The Resolution of this Court dated May 9, 2001, directing the Comelec "to refrain from proclaiming any winner" during the last party-list election, shall remain in force until after the Comelec itself will have complied and reported its compliance with the foregoing disposition. This Decision is immediately executory upon the Commission on Elections' receipt thereof. No pronouncement as to costs. SO ORDERED.
390
SPP Case No. 09 - 228 (PL) IN THE MATTER OF THE PETITION FOR REGISTRATION OF ANG LADLAD LGBT PARTY FOR THE PARTY-LIST SYSTEM OF REPRESENTATION IN THE HOUSE OF REPRESENTATIVES. REPRESENTED HEREIN BY CHAIRMAN DANTON REMOTO, Petitioner. x------------------------------------x Ferrer, N. T., Presiding Commissioner Promulgation: 11 November 2009
RESOLUTION
We resolve the verified Petition for registration of ANG LADLAD LGBT PARTY (Ang Ladlad, for brevity) as a sectoral party under the party-list system of representation. Petitioner is a corporation duly organized and existing under and by virtue of the laws of the Philippines with postal address at Unit 304 Golden Legacy Condominium, 98 Xavierville Ave., Cor. Esteban Abada St., Loyola Heights, Quezon City. In its Petition filed on August 17, 2009, petitioner alleges the following, to wit: 1) That it is composed of Lesbians, Gays, BisexuaIs, and Transgenders, "like-minded individuals with the same concerns and interests, comprising a bona fide sectoral organization"; 2) That it seeks to participate in the Party-list system as a sectoral party to represent the "Filipino Lesbian, Gay, Bisexual, and Transgender (LGBT) Community"; 3) That it has nationwide constituency; 4) That Petitioner "is not a religious sect or denomination"; 5) That it does not "advocate violence or unlawful means to seek its goal"; 6) That it "or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections"; 7) That it is "not and endeavors not to receive any support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes"; and 8) That it "is not a party or organization that is an adjunct of, or a project organized or an entity funded or assisted by, the government; Attached to the Petition are its Certificate of Incorporation , By-laws , Articles of Incorporation and List of Officers and Members. An Order dated September 4, 2009 was issued directing Regional Election Directors to verify the existence of petitioner in Regions IXIII, Autonomous Region in Muslim Mindanao (ARMM), Cordillera Administrative Region (CAR) and the National Capital Region (NCR). The case was set for hearing on September 24, 2009 in an Order of the Commission dated September 9, 2009 which also directs petitioner to publish its petition as well as the said Order in two (2) daily newspapers of general circulation. The Petition was heard as scheduled on September 24, 2009. Petitioner, through counsel, presented on the witness stand Prof. Danton Remoto, the President of the party, who, having authenticated the documents establishing the jurisdiction of the Commission all the documents attached as annexes to the Petition, testified on direct examination and identified all the documents attached as annexes to the Petition, and answered clarificatory questions propounded by the members of the Second Division. 391 Election Laws COMELEC
6 5 2 3 4
Thereafter, petitioner was directed to formally offer its evidence the following day during office hours. However, it failed to comply with the order. This Petition must fail. There are two (2) issues to be resolved in the present case, these are: 1. Whether or not the documents establishing the jurisdiction of the Commission and other documents can be admitted as evidence considering that the same were not formally offered; and
2.
Whether or not petitioner should be accredited as a sectoral party under the party-list system of representation.
Anent the first issue, we hold that the evidence of petitioner may be admitted. The general rule when evidence is not formally offered is 7 found in Section 34 , Rule 132 of the Rules of Court which forbids the courts from considering evidence not formally offered. However, when evidence has been duly identified by testimony duly recorded and incorporated in the records of the case, the rule may be relaxed 8 such that evidence not formally offered may be admitted. The exception may be applied to the case at bar. Petitioner, through its witness and President, Danton Remoto, sufficiently identified the pieces of evidence presented. The testimony was duly recorded and incorporated in the records of the case. Hence, the documents authenticated and testified on by witness Remoto are hereby admitted, although not formally offered in evidence by the petitioner. Despite the foregoing, however, this Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus: "xxx a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity." and proceeded to define sexual orientation as that which: "xxx refer to a person's capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different qender, of the same gender, or more than one gender." This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote: "For this cause God gave them up into vile affections: for even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men 9 working that which is unseemly, and receiving in themselves that recompense of their error which was meet". In the Koran, the hereunder verses are pertinent: "For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond bounds." (7.81). "And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in sin and crime!" (7:84) "He said: "0 10 my Lord! Help Thou me against people who do mischief!""(29:30)." As correctly pointed out by the Law Department in its Comment dated October 2, 2008: "The 'ANG LADLAD' apparently advocates sexual immorality as indicated in the Petition's par. 6F: 'Consensual partnerships or relationships by gays and lesbians who are already of age." It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated at 670,000." (Genesis 19 is the history of Sodom and Gomorrah). Laws are deemed incorporated in every contract, permit, license, relationship or accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied with for accreditation. ANG LADLAD collides with Art. 694 of the Civil Code which defines nuisance as 'Any act, omission, establishment, business, condition of property, or anything else which xxx (3) shocks, defies; or disregards decency or morality xxx' 392 Election Laws COMELEC
It also collides with Art. 1306 of the Civil Code: 'The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, qood customs, public order or public policy. Art. 1409 of the Civil Code provides that 'Contracts whose cause, object or purpose is contrary to law, morals, aood customs, public order or public policy' are inexistent and void from the beginning. Finally, to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes 'Immoral doctrines, obscene publications and exhibition and indecent shows' as follows: "Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows. - The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon: (1) Those who shall publicly expound or proclaim doctrines openly contraty to public morals; (2) (a) the authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals and good customs, established policies, lawful orders, decrees and edicts; (3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. (As amended by PD Nos. 960 and 969)." Petitioner should be denied accreditation not only for advocating immoral doctrines but likewise for not being truthful when it said that it "or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections". Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A said in one article that ''older practicing 11 12 homosexuals are a threat to the youth" . As an agency of the government, ours too is the State's avowed duty under Section 13 , Article II of the Constitution to protect our youth from moral and spiritual degradation. We are not condemning the LGBT, but we cannot compromise the well-being of the greater number of our people, especially the youth. WHEREFORE, premises considered, this Petition is hereby DISMISSED. SO ORDERED.
393
Republic of the Philippines SUPREME COURT Baguio City EN BANC G.R. No. 190582 April 8, 2010
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner, vs. COMMISSION ON ELECTIONS Respondent. DECISION DEL CASTILLO, J.: ... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. Justice Robert A. Jackson West Virginia State Board of Education v. Barnette
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One unavoidable consequence of everyone having the freedom to choose is that others may make different choices choices we would not make for ourselves, choices we may disapprove of, even choices that may shock or offend or anger us. However, choices are not to be legally prohibited merely because they are different, and the right to disagree and debate about important questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine recognition of, and respect for, diversity and difference in opinion. Since ancient times, society has grappled with deep disagreements about the definitions and demands of morality. In many cases, where moral convictions are concerned, harmony among those theoretically opposed is an insurmountable goal. Yet herein lies the paradox philosophical justifications about what is moral are indispensable and yet at the same time powerless to create agreement. This Court recognizes, however, that practical solutions are preferable to ideological stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly. Factual Background This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections (COMELEC) dated November 2 3 11, 2009 (the First Assailed Resolution) and December 16, 2009 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELECs refusal to accredit Ang Ladlad as a party-list 4 organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act. Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation was denied on the ground that the organization had no substantial membership base. On August 17, 2009, Ang Ladlad 5 again filed a Petition for registration with the COMELEC. Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad 6 complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections. Ang Ladlad laid out its national membership base consisting of individual members and organizational supporters, and outlined its 7 platform of governance. On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds, stating that: x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus: 394 Election Laws COMELEC
x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity. and proceeded to define sexual orientation as that which: x x x refers to a persons capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender." This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote: For this cause God gave them up into vile affections, for even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompense of their error which was meet. In the Koran, the hereunder verses are pertinent: For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do mischief" (29:30). As correctly pointed out by the Law Department in its Comment dated October 2, 2008: The ANG LADLAD apparently advocates sexual immorality as indicated in the Petitions par. 6F: Consensual partnerships or relationships by gays and lesbians who are already of age. It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah). Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied with for accreditation. ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as Any act, omission, establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or disregards decency or morality x x x It also collides with Article 1306 of the Civil Code: The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code provides that Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy are inexistent and void from the beginning. Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes Immoral doctrines, obscene publications and exhibitions and indecent shows as follows: Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon: 1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals; 2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts. 3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals.
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Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for not being truthful when it said that it "or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections." Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are a threat to the youth." As an agency of the government, ours too is the States avowed duty under Section 13, Article 8 II of the Constitution to protect our youth from moral and spiritual degradation. When Ang Ladlad sought reconsideration, three commissioners voted to overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that: I. The Spirit of Republic Act No. 7941 Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has properly proven its underrepresentation and marginalization, it cannot be said that Ladlads expressed sexual orientations per se would benefit the nation as a whole. Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack welldefined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. If entry into the party-list system would depend only on the ability of an organization to represent its constituencies, then all representative organizations would have found themselves into the party-list race. But that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the realization of aspirations of marginalized individuals whose interests are also the nations only that their interests have not been brought to the attention of the nation because of their under representation. Until the time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is beneficial to the nation, its application for accreditation under the party-list system will remain just that. II. No substantial differentiation In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental right, and that "nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or legal equality of homosexual relations," as in the case of race or religion or belief. xxxx Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no denying that Ladlad constituencies are still males and females, and they will remain either male or female protected by the same Bill of Rights that applies to all citizens alike. xxxx IV. Public Morals x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is there any attempt to any particular religious groups moral rules on Ladlad. Rather, what are being adopted as moral parameters and precepts are generally accepted public morals. They are possibly religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that some moral precepts espoused by said religions have sipped [sic] into society and these are not publicly accepted moral norms. V. Legal Provisions But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene publications and exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal 396 Election Laws COMELEC
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provisions. This is clear from its Petitions paragraph 6F: "Consensual partnerships or relationships by gays and lesbians who are already of age It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines "nuisance" as any act, omission x x x or 10 anything else x x x which shocks, defies or disregards decency or morality x x x." These are all unlawful. On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang Ladlads application for accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010. On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of COMELEC not later than 11 12:00 noon of January 11, 2010. Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting that it be 12 given until January 16, 2010 to Comment. Somewhat surprisingly, the OSG later filed a Comment in support of petitioners 13 14 application. Thus, in order to give COMELEC the opportunity to fully ventilate its position, we required it to file its own comment. The 15 COMELEC, through its Law Department, filed its Comment on February 2, 2010. In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to cease and desist from implementing the Assailed 16 Resolutions. Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus Curiae, 17 attaching thereto its Comment-in-Intervention. The CHR opined that the denial of Ang Ladlads petition on moral grounds violated the standards and principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHRs motion to intervene. On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene The Parties Arguments Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as constituted violations of the Philippines international obligations against discrimination based on sexual orientation. The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners application for registration since there was no basis for COMELECs allegations of immorality. It also opined that LGBTs have their own special interests and concerns which should have been recognized by the COMELEC as a separate classification. However, insofar as the purported violations of petitioners freedom of speech, expression, and assembly were concerned, the OSG maintained that there had been no restrictions on these rights. In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual verification reports by COMELECs field personnel. Our Ruling We grant the petition. Compliance with the Requirements of the Constitution and Republic Act No. 7941 The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the enumeration. Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. As we 20 explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, "the enumeration of marginalized and underrepresented sectors is not exclusive". The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941.
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which motion was granted on February 2, 2010.
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Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had nationwide existence through its members and affiliate organizations. The COMELEC claims that upon verification by its field personnel, it was shown that 21 "save for a few isolated places in the country, petitioner does not exist in almost all provinces in the country." This argument that "petitioner made untruthful statements in its petition when it alleged its national existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when it said that it or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections." Nowhere was this ground for denial of petitioners accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious, considering that the reports of petitioners alleged non-existence were already available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in respondents theory, and a serious violation of petitioners right to procedural due process. Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads initial petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044 members in 22 its electronic discussion group. Ang Ladlad also represented itself to be "a national LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT networks:" Abra Gay Association Aklan Butterfly Brigade (ABB) Aklan Albay Gay Association Arts Center of Cabanatuan City Nueva Ecija Boys Legion Metro Manila Cagayan de Oro People Like Us (CDO PLUS) Cant Live in the Closet, Inc. (CLIC) Metro Manila Cebu Pride Cebu City Circle of Friends Dipolog Gay Association Zamboanga del Norte Gay, Bisexual, & Transgender Youth Association (GABAY) Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila Gay Mens Support Group (GMSG) Metro Manila Gay United for Peace and Solidarity (GUPS) Lanao del Norte Iloilo City Gay Association Iloilo City Kabulig Writers Group Camarines Sur Lesbian Advocates Philippines, Inc. (LEAP) LUMINA Baguio City Marikina Gay Association Metro Manila Metropolitan Community Church (MCC) Metro Manila
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Naga City Gay Association Naga City ONE BACARDI Order of St. Aelred (OSAe) Metro Manila PUP LAKAN RADAR PRIDEWEAR Rainbow Rights Project (R-Rights), Inc. Metro Manila San Jose del Monte Gay Association Bulacan Sining Kayumanggi Royal Family Rizal Society of Transexual Women of the Philippines (STRAP) Metro Manila Soul Jive Antipolo, Rizal The Link Davao City Tayabas Gay Association Quezon Womens Bisexual Network Metro Manila Zamboanga Gay Association Zamboanga City
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Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that they found that petitioner had no presence in any of these regions. In fact, if COMELECs findings are to be believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlads principal place of business. Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal requirements for accreditation. Indeed, aside from COMELECs moral objection and the belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlads morality, or lack thereof. Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of religion, or prohibiting the 24 free exercise thereof." At bottom, what our non-establishment clause calls for is "government neutrality in religious matters." Clearly, 25 "governmental reliance on religious justification is inconsistent with this policy of neutrality." We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act 26 for secular purposes and in ways that have primarily secular effects. As we held in Estrada v. Escritor: x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carp io holds. "Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The nonbelievers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens.1avvphi1
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In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state 27 interests. Public Morals as a Ground to Deny Ang Ladlads Petition for Registration Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be religion-based, it has long been transplanted into generally accepted public morals. The COMELEC argues: Petitioners accreditation was denied not necessarily because their group consists of LGBTs but because of the danger it poses to the people especially the youth. Once it is recognized by the government, a sector which believes that there is nothing wrong in having sexual relations with individuals of the same gender is a bad example. It will bring down the standard of morals we cherish in our 28 civilized society. Any society without a set of moral precepts is in danger of losing its own existence. We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally 29 accepted public morals" have not been convincingly transplanted into the realm of law. The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG agrees that "there 30 should have been a finding by the COMELEC that the groups members have committed or are committing immoral acts." The OSG argues: x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than one gender, but mere attraction does not translate to immoral acts. There is a great divide between thought and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its hands full of disqualification cases against both the "straights" and the gays." 31 Certainly this is not the intendment of the law. Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the COMELEC condescended to justify its position that petitioners admission into the party-list system would be so harmful as to irreparably damage the moral fabric of society. We, of course, do not suggest that the state is wholly without authority to regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the government will and should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without bothering to go through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny. We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission, establishment, condition of property, or anything else which shocks, defies, or disregards decency or morality," the remedies for which are a prosecution under the Revised Penal Code or any local 32 ordinance, a civil action, or abatement without judicial proceedings. A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination of liability or culpability. As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. Respondents blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our equal protection clause. Election Laws COMELEC
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Equal Protection Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person be denied equal protection of the laws," courts have never interpreted the provision as an absolute prohibition on classification. "Equality," said Aristotle, "consists in 33 the same treatment of similar persons." The equal protection clause guarantees that no person or class of persons shall be deprived 34 of the same protection of laws which is enjoyed by other persons or other classes in the same place and in like circumstances. Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the 35 classification as long as it bears a rational relationship to some legitimate government end. In Central Bank Employees Association, 36 Inc. v. Banko Sentral ng Pilipinas, we declared that "[i]n our jurisdiction, the standard of analysis of equal protection challenges x x x have followed the rational basis test, coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law 37 unless there is a showing of a clear and unequivocal breach of the Constitution." The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the asserted state interest here that is, moral disapproval of an unpopular minority is not a legitimate state interest that is sufficient to satisfy rational basis review under the equal protection clause. The COMELECs differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a disfavored group. From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors. It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals insofar as the party-list system is concerned does not imply that any other law distinguishing between heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the OSGs position that homosexuals are a class in themselves for the purposes of the equal 38 protection clause. We are not prepared to single out homosexuals as a separate class meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized under the same basis as all other groups similarly situated, and that the COMELEC made "an unwarranted and impermissible classification not justified by the circumstances of the case." Freedom of Expression and Association Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the validity of its position 39 through normal democratic means. It is in the public square that deeply held convictions and differing opinions should be distilled and 40 deliberated upon. As we held in Estrada v. Escritor: In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic governance. Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies including protection of religious freedom "not only for a minority, however small not only for a majority, however large but for each of us" the majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities. Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one. This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning ones homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well.
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Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct violates 41 public morality does not justify criminalizing same-sex conduct. European and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal protection provisions in foreign and 42 international texts. To the extent that there is much to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Courts analysis. In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular expression of opinion, public institutions must show that their actions were caused by "something more than a mere desire to avoid the discomfort and unpleasantness that always 43 accompany an unpopular viewpoint." With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party may campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic means and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that political ideas that challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of association, even if such ideas 44 may seem shocking or unacceptable to the authorities or the majority of the population. A political group should not be hindered solely 45 because it seeks to publicly debate controversial political issues in order to find solutions capable of satisfying everyone concerned. Only if a political party incites violence or puts forward policies that are incompatible with democracy does it fall outside the protection of 46 the freedom of association guarantee. We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court is concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community. Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of homosexuality through this Decision. The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then there has been no restriction on their freedom of expression or association. The OSG argues that: There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of Section 4, Article III of the Constitution. xxxx A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to vote is a constitutionally-guaranteed right which cannot be limited. As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlads petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its members to fully and equally participate in public life through engagement in the party list elections. This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations imposed by law. x x x
47
The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list system, and as advanced by the OSG itself the moral objection offered by the COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of COMELECs action, from publicly expressing its views as a political party and participating on an equal basis in the political process with other equally-qualified party-list candidates, we find that there has, indeed, been a transgression of petitioners fundamental rights. Non-Discrimination and International Law
402
In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For individuals and groups struggling with inadequate structural and governmental support, international human rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct. Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR. The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows: Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to "sex" in Article 26 48 should be construed to include "sexual orientation." Additionally, a variety of United Nations bodies have declared discrimination on 49 the basis of sexual orientation to be prohibited under various international agreements. The UDHR provides: Article 21. (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. Likewise, the ICCPR states: Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country. As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows: 1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant. xxxx 15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the legislative provisions which 50 exclude any group or category of persons from elective office. 403 Election Laws COMELEC
We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioners invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and 51 Gender Identity), which petitioner declares to reflect binding principles of international law. At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not 52 find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice. Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status. We also hasten to add that not everything that society or a certain segment of society wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if "wants" are couched in "rights" language, then they are no longer controversial.1avvphi1 Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are at best de lege ferenda and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the "soft law" nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning desires, without 53 the support of either State practice or opinio juris. As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Courts role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate. WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioners application for party-list accreditation. SO ORDERED.
404
JOSE L. ATIENZA, JR., MATIAS V. DEFENSOR, JR., RODOLFO G. VALENCIA, DANILO E. SUAREZ, SOLOMON R. CHUNGALAO, SALVACION ZALDIVAR-PEREZ, HARLIN CAST-ABAYON, MELVIN G. MACUSI and ELEAZAR P. QUINTO, Petitioners, vs. COMMISSION ON ELECTIONS, MANUEL A. ROXAS II, FRANKLIN M. DRILON and J.R. NEREUS O. ACOSTA, Respondents. DECISION ABAD, J.: This petition is an offshoot of two earlier cases already resolved by the Court involving a leadership dispute within a political party. In this case, the petitioners question their expulsion from that party and assail the validity of the election of new party leaders conducted by the respondents. Statement of the Facts and the Case For a better understanding of the controversy, a brief recall of the preceding events is in order. On July 5, 2005 respondent Franklin M. Drilon (Drilon), as erstwhile president of the Liberal Party (LP), announced his partys withdrawal of support for the administration of President Gloria Macapagal-Arroyo. But petitioner Jose L. Atienza, Jr. (Atienza), LP Chairman, and a number of party members denounced Drilons move, claiming that he made the announcement without consulting his party. On March 2, 2006 petitioner Atienza hosted a party conference to supposedly discuss local autonomy and party matters but, when convened, the assembly proceeded to declare all positions in the LPs ruling body vacant and elected new officers, with Atienza as LP 1 president. Respondent Drilon immediately filed a petition with the Commission on Elections (COMELEC) to nullify the elections. He claimed that it was illegal considering that the partys electing bodies, the National Executive Council (NECO) and the National Political 2 Council (NAPOLCO), were not properly convened. Drilon also claimed that under the amended LP Constitution, party officers were elected to a fixed three-year term that was yet to end on November 30, 2007. On the other hand, petitioner Atienza claimed that the majority of the LPs NECO and NAPOLCO attended the March 2, 2006 assembly. The election of new officers on that occasion could be likened to "people power," wherein the LP majority removed 3 respondent Drilon as president by direct action. Atienza also said that the amendments to the original LP Constitution, or the Salonga Constitution, giving LP officers a fixed three-year term, had not been properly ratified. Consequently, the term of Drilon and the other officers already ended on July 24, 2006. On October 13, 2006, the COMELEC issued a resolution, partially granting respondent Drilons petition. It annulled the March 2, 2006 elections and ordered the holding of a new election under COMELEC supervision. It held that the election of petitioner Atienza and the others with him was invalid since the electing assembly did not convene in accordance with the Salonga Constitution. But, since the amendments to the Salonga Constitution had not been properly ratified, Drilons term may be deemed to have ended. Thus, he held the position of LP president in a holdover capacity until new officers were elected. Both sides of the dispute came to this Court to challenge the COMELEC rulings. On April 17, 2007 a divided Court issued a resolution, granting respondent Drilons petition and denying that of petitioner Atienza. The Court held, through the majority, that the COMELEC had jurisdiction over the intra-party leadership dispute; that the Salonga Constitution had been validly amended; and that, as a consequence, respondent Drilons term as LP president was to end only on November 30, 2007.
5 4
Subsequently, the LP held a NECO meeting to elect new party leaders before respondent Drilons term expired. Fifty-nine NECO members out of the 87 who were supposedly qualified to vote attended. Before the election, however, several persons associated with petitioner Atienza sought to clarify their membership status and raised issues regarding the composition of the NECO. Eventually, that meeting installed respondent Manuel A. Roxas II (Roxas) as the new LP president.
405
On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo G. Valencia, Danilo E. Suarez, Solomon R. Chungalao, Salvacion Zaldivar-Perez, Harlin Cast-Abayon, Melvin G. Macusi, and Eleazar P. Quinto, filed a petition for mandatory and prohibitory 6 injunction before the COMELEC against respondents Roxas, Drilon and J.R. Nereus O. Acosta, the party secretary general. Atienza, et al. sought to enjoin Roxas from assuming the presidency of the LP, claiming that the NECO assembly which elected him was invalidly convened. They questioned the existence of a quorum and claimed that the NECO composition ought to have been based on a list appearing in the partys 60th Anniversary Souvenir Program. Both Atienza and Drilon adopted that list as common exhibit in the earlier cases and it showed that the NECO had 103 members. Petitioners Atienza, et al. also complained that Atienza, the incumbent party chairman, was not invited to the NECO meeting and that some members, like petitioner Defensor, were given the status of "guests" during the meeting. Atienzas allies allegedly raised these issues but respondent Drilon arbitrarily thumbed them down and "railroaded" the proceedings. He suspended the meeting and moved it to another room, where Roxas was elected without notice to Atienzas allies. On the other hand, respondents Roxas, et al. claimed that Roxas election as LP president faithfully complied with the provisions of the amended LP Constitution. The partys 60th Anniversary Souvenir Program could not be used for determining the NECO members because supervening events changed the bodys number and composition. Some NECO members had died, voluntarily resigned, or had gone on leave after accepting positions in the government. Others had lost their re-election bid or did not run in the May 2007 elections, making them ineligible to serve as NECO members. LP members who got elected to public office also became part of the NECO. Certain persons of national stature also became NECO members upon respondent Drilons nomination, a privilege granted the LP president under the amended LP Constitution. In other words, the NECO membership was not fixed or static; it changed due to supervening circumstances. Respondents Roxas, et al. also claimed that the party deemed petitioners Atienza, Zaldivar-Perez, and Cast-Abayon resigned for holding the illegal election of LP officers on March 2, 2006. This was pursuant to a March 14, 2006 NAPOLCO resolution that NECO subsequently ratified. Meanwhile, certain NECO members, like petitioners Defensor, Valencia, and Suarez, forfeited their party membership when they ran under other political parties during the May 2007 elections. They were dropped from the roster of LP members. On June 18, 2009 the COMELEC issued the assailed resolution denying petitioners Atienza, et al.s petition. It noted that the May 2007 elections necessarily changed the composition of the NECO since the amended LP Constitution explicitly made incumbent senators, members of the House of Representatives, governors and mayors members of that body. That some lost or won these positions in the May 2007 elections affected the NECO membership. Petitioners failed to prove that the NECO which elected Roxas as LP president was not properly convened. As for the validity of petitioners Atienza, et al.s expulsion as LP members, the COMELEC observed that this was a membership issue that related to disciplinary action within the political party. The COMELEC treated it as an internal party matter that was beyond its jurisdiction to resolve. Without filing a motion for reconsideration of the COMELEC resolution, petitioners Atienza, et al. filed this petition for certiorari under Rule 65. The Issues Presented Respondents Roxas, et al. raise the following threshold issues: 1. Whether or not the LP, which was not impleaded in the case, is an indispensable party; and 2. Whether or not petitioners Atienza, et al., as ousted LP members, have the requisite legal standing to question Roxas election. Petitioners Atienza, et al., on the other hand, raise the following issues: 3. Whether or not the COMELEC gravely abused its discretion when it upheld the NECO membership that elected respondent Roxas as LP president; 4. Whether or not the COMELEC gravely abused its discretion when it resolved the issue concerning the validity of the NECO meeting without first resolving the issue concerning the expulsion of Atienza, et al. from the party; and 5. Whether or not respondents Roxas, et al. violated petitioners Atienza, et al.s constitutional right to due process by the latters expulsion from the party.
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The Courts Ruling One. Respondents Roxas, et al. assert that the Court should dismiss the petition for failure of petitioners Atienza, et al. to implead the LP as an indispensable party. Roxas, et al. point out that, since the petition seeks the issuance of a writ of mandatory injunction against 7 the NECO, the controversy could not be adjudicated with finality without making the LP a party to the case. But petitioners Atienza, et al.s causes of action in this case consist in respondents Roxas, et al.s disenfranchisement of Atienza, et al. from the election of party leaders and in the illegal election of Roxas as party president. Atienza, et al. were supposedly excluded from the elections by a series of "despotic acts" of Roxas, et al., who controlled the proceedings. Among these acts are Atienza, et al.s expulsion from the party, their exclusion from the NECO, and respondent Drilons "railroading" of election proceedings. Atienza, et al. attributed all these illegal and prejudicial acts to Roxas, et al. Since no wrong had been imputed to the LP nor had some affirmative relief been sought from it, the LP is not an indispensable party. Petitioners Atienza, et al.s prayer for the undoing of respondents Roxas, et al.s acts and the reconvening of the NECO are directed against Roxas, et al. Two. Respondents Roxas, et al. also claim that petitioners Atienza, et al. have no legal standing to question the election of Roxas as LP 8 president because they are no longer LP members, having been validly expelled from the party or having joined other political parties. As non-members, they have no stake in the outcome of the action. But, as the Court held in David v. Macapagal-Arroyo, legal standing in suits is governed by the "real parties-in-interest" rule under Section 2, Rule 3 of the Rules of Court. This states that "every action must be prosecuted or defended in the name of the real party-ininterest." And "real party-in-interest" is one who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. In other words, the plaintiffs standing is based on his own right to the relief sought. In raising petitioners Atienza, et al.s lack of standing as a threshold issue, respondents Roxas, et al. would have the Court hypothetically assume the truth of the allegations in the petition. Here, it is precisely petitioners Atienza, et al.s allegations that respondents Roxas, et al. deprived them of their rights as LP members by summarily excluding them from the LP roster and not allowing them to take part in the election of its officers and that not all who sat in the NECO were in the correct list of NECO members. If Atienza, et al.s allegations were correct, they would have been irregularly expelled from the party and the election of officers, void. Further, they would be entitled to recognition as members of good standing and to the holding of a new election of officers using the correct list of NECO members. To this extent, therefore, Atienza, et al. who want to take part in another election would stand to be benefited or prejudiced by the Courts decision in this case. Consequently, they have legal standing to pursue this petition. Three. In assailing respondent Roxas election as LP president, petitioners Atienza, et al. claim that the NECO members allowed to take part in that election should have been limited to those in the list of NECO members appearing in the partys 60th Anniversary Souvenir Program. Atienza, et al. allege that respondent Drilon, as holdover LP president, adopted that list in the earlier cases before the COMELEC and it should thus bind respondents Roxas, et al. The Courts decision in the earlier cases, said Atienza, et al., anointed that list for the next party election. Thus, Roxas, et al. in effect defied the Courts ruling when they removed Atienza as party chairman 10 and changed the NECOs composition. But the list of NECO members appearing in the partys 60th Anniversary Souvenir Program was drawn before the May 2007 elections. After the 2007 elections, changes in the NECO membership had to be redrawn to comply with what the amended LP Constitution required. Respondent Drilon adopted the souvenir program as common exhibit in the earlier cases only to prove that the NECO, which supposedly elected Atienza as new LP president on March 2, 2006, had been improperly convened. It cannot be regarded as an immutable list, given the nature and character of the NECO membership. Nothing in the Courts resolution in the earlier cases implies that the NECO membership should be pegged to the partys 60th Anniversary Souvenir Program. There would have been no basis for such a position. The amended LP Constitution did not intend the 11 NECO membership to be permanent. Its Section 27 provides that the NECO shall include all incumbent senators, members of the House of Representatives, governors, and mayors who were LP members in good standing for at least six months. It follows from this that with the national and local elections taking place in May 2007, the number and composition of the NECO would have to yield to changes brought about by the elections. Former NECO members who lost the offices that entitled them to membership had to be dropped. Newly elected ones who gained the privilege because of their offices had to come in. Furthermore, former NECO members who passed away, resigned from the party, or went on leave could not be expected to remain part of the NECO that convened and held elections on November 26, 2007. In addition, Section 27 of the amended LP Constitution expressly authorized the party president to nominate "persons of national stature" to the NECO. Thus, petitioners Atienza, et al. cannot validly object to the admission of 12 NECO members nominated by respondent Drilon when he was LP president. Even if this move could be regarded as respondents Roxas, et al.s way of ensuring their election as party officers, there was certainly nothing irregular about the act under the amended LP Constitution. 407 Election Laws COMELEC
9
The NECO was validly convened in accordance with the amended LP Constitution. Respondents Roxas, et al. explained in details how 12 they arrived at the NECO composition for the purpose of electing the party leaders. The explanation is logical and consistent with party rules. Consequently, the COMELEC did not gravely abuse its discretion when it upheld the composition of the NECO that elected Roxas as LP president. Petitioner Atienza claims that the Courts resolution in the earlier cases recognized his right as party chairman with a term, like respondent Drilon, that would last up to November 30, 2007 and that, therefore, his ouster from that position violated the Courts 13 resolution. But the Courts resolution in the earlier cases did not preclude the party from disciplining Atienza under Sections 29 and 14 46 of the amended LP Constitution. The party could very well remove him or any officer for cause as it saw fit. Four. Petitioners Atienza, et al. lament that the COMELEC selectively exercised its jurisdiction when it ruled on the composition of the NECO but refused to delve into the legality of their expulsion from the party. The two issues, they said, weigh heavily on the leadership controversy involved in the case. The previous rulings of the Court, they claim, categorically upheld the jurisdiction of the COMELEC 15 over intra-party leadership disputes. But, as respondents Roxas, et al. point out, the key issue in this case is not the validity of the expulsion of petitioners Atienza, et al. from the party, but the legitimacy of the NECO assembly that elected respondent Roxas as LP president. Given the COMELECs finding as upheld by this Court that the membership of the NECO in question complied with the LP Constitution, the resolution of the issue of whether or not the party validly expelled petitioners cannot affect the election of officers that the NECO held.1avvphi1 While petitioners Atienza, et al. claim that the majority of LP members belong to their faction, they did not specify who these members were and how their numbers could possibly affect the composition of the NECO and the outcome of its election of party leaders. Atienza, et al. has not bothered to assail the individual qualifications of the NECO members who voted for Roxas. Nor did Atienza, et al. present proof that the NECO had no quorum when it then assembled. In other words, the claims of Atienza, et al. were totally unsupported by evidence. Consequently, petitioners Atienza, et al. cannot claim that their expulsion from the party impacts on the party leadership issue or on the election of respondent Roxas as president so that it was indispensable for the COMELEC to adjudicate such claim. Under the circumstances, the validity or invalidity of Atienza, et al.s expulsion was purely a membership issue that had to be settled within the party. It is an internal party matter over which the COMELEC has no jurisdiction. What is more, some of petitioner Atienzas allies raised objections before the NECO assembly regarding the status of members from their faction. Still, the NECO proceeded with the election, implying that its membership, whose composition has been upheld, voted out those objections. The COMELECs jurisdiction over intra-party disputes is limited. It does not have blanket authority to resolve any and all controversies involving political parties. Political parties are generally free to conduct their activities without interference from the state. The COMELEC may intervene in disputes internal to a party only when necessary to the discharge of its constitutional functions. The COMELECs jurisdiction over intra-party leadership disputes has already been settled by the Court. The Court ruled in Kalaw v. 16 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 17 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 intra-party leadership dispute, in a proper case brought before it, as an incident of its power to register political parties. The validity of respondent Roxas election as LP president is a leadership issue that the COMELEC had to settle. Under the amended LP Constitution, the LP president is the issuing authority for certificates of nomination of party candidates for all national elective positions. It is also the LP president who can authorize other LP officers to issue certificates of nomination for candidates to local 18 elective posts. In simple terms, it is the LP president who certifies the official standard bearer of the party. The law also grants a registered political party certain rights and privileges that will redound to the benefit of its official candidates. It imposes, too, legal obligations upon registered political parties that have to be carried out through their leaders. The resolution of the 19 leadership issue is thus particularly significant in ensuring the peaceful and orderly conduct of the elections. Five. Petitioners Atienza, et al. argue that their expulsion from the party is not a simple issue of party membership or discipline; it involves a violation of their constitutionally-protected right to due process of law. They claim that the NAPOLCO and the NECO should have first summoned them to a hearing before summarily expelling them from the party. According to Atienza, et al., proceedings on 20 party discipline are the equivalent of administrative proceedings and are, therefore, covered by the due process requirements laid 21 down in Ang Tibay v. Court of Industrial Relations.
408
But the requirements of administrative due process do not apply to the internal affairs of political parties. The due process standards set in Ang Tibay cover only administrative bodies created by the state and through which certain governmental acts or functions are performed. An administrative agency or instrumentality "contemplates an authority to which the state delegates governmental power for 22 the performance of a state function." The constitutional limitations that generally apply to the exercise of the states powers thus, apply too, to administrative bodies. The constitutional limitations on the exercise of the states powers are found in Article III of the Constitution or the Bill of Rights. The Bill of Rights, which guarantees against the taking of life, property, or liberty without due process under Section 1 is generally a limitation on the states powers in relation to the rights of its citizens. The right to due process is meant to protect ordinary citizens against arbitrary government action, but not from acts committed by private individuals or entities. In the latter case, the specific statutes that provide reliefs from such private acts apply. The right to due process guards against unwarranted encroachment by the state into the 23 fundamental rights of its citizens and cannot be invoked in private controversies involving private parties. Although political parties play an important role in our democratic set-up as an intermediary between the state and its citizens, it is still a private organization, not a state instrument. The discipline of members by a political party does not involve the right to li fe, liberty or property within the meaning of the due process clause. An individual has no vested right, as against the state, to be accepted or to prevent his removal by a political party. The only rights, if any, that party members may have, in relation to other party members, correspond to those that may have been freely agreed upon among themselves through their charter, which is a contract among the party members. Members whose rights under their charter may have been violated have recourse to courts of law for the enforcement of those rights, but not as a due process issue against the government or any of its agencies. But even when recourse to courts of law may be made, courts will ordinarily not interfere in membership and disciplinary matters within a political party. A political party is free to conduct its internal affairs, pursuant to its constitutionally-protected right to free association. In 24 Sinaca v. Mula, the Court said that judicial restraint in internal party matters serves the public interest by allowing the political processes to operate without undue interference. It is also consistent with the state policy of allowing a free and open party system to 25 evolve, according to the free choice of the people. To conclude, the COMELEC did not gravely abuse its discretion when it upheld Roxas election as LP president but refused to rule on the validity of Atienza, et al.s expulsion from the party. While the question of party leadership has implications on the COMELECs performance of its functions under Section 2, Article IX-C of the Constitution, the same cannot be said of the issue pertaining to Atienza, et al.s expulsion from the LP. Such expulsion is for the moment an issue of party membership and discipline, in which the COMELEC cannot intervene, given the limited scope of its power over political parties. WHEREFORE, the Court DISMISSES the petition and UPHOLDS the Resolution of the Commission on Elections dated June 18, 2009 in COMELEC Case SPP 08-001. SO ORDERED.
409
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION
G.R. No. 107852 October 20, 1993 GREGORIO M. ARUELO, JR., petitioner, vs. THE COURT OF APPEALS, PRESIDING JUDGE, REGIONAL TRIAL COURT OF BULACAN, BRANCH 17, MALOLOS BULACAN, and DANILO F. GATCHALIAN, respondents. Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner. Venustiano S. Roxas & Associates for private respondent.
QUIASON, J.: This is a petition for certiorari and prohibition under rule 65 of the Revised Rules of Court, to set aside the Decision of the Court of Appeals dated November 24, 1992 in CA-G.R. SP No, 28621, which ruled that the answer and counter-protest of respondent Danilo F. Gatchalian was filed timely and ordered the Regional Trial Court, Branch 17, Malolos, Bulacan to continue with the proceedings in Civil Case No. 343-M-92, the protest case filed by petitioner Gregorio N. Aruelo, Jr. Aruelo and Gatchalian were rival candidates in the May 11, 1992 elections for the office of the Vice-Mayor of the Municipality of Balagtas, Province of Bulacan. Gatchalian won over Aruelo by a margin of four votes, such that on May 13, 1992, the Municipal Board of Canvassers proclaimed him as the duly elected Vice-Mayor of Balagtas, Bulacan. On May 22, 1992, Aruelo filed with the Commission on Elections (COMELEC) a petition docketed as SPC No. 92-130, seeking to annul Gatchalian's proclamation on the ground of "fraudulent alteration and tampering" of votes in the tally sheets and the election returns. On June 2, 1992, Aruelo filed with the Regional Trial Court, Branch 17, Malolos, Bulacan, a petition docketed as Civil Case No. 343-M92 protesting the same election. Aruelo, however, informed the trial court of the pendency of the pre-proclamation case before the COMELEC. On June 10, 1992, Gatchalian was served an Amended Summons from the trial court, giving him five days within which to answer the petition. Instead of submitting his answer, Gatchalian filed on June 15, 1992 a Motion to Dismiss claiming that: (a) the petition was filed out of time; (b) there was a pending protest case before the COMELEC; and (c) Aruelo failed to pay the prescribed filing fees and cash deposit on the petition. Meanwhile in SPC Case No. 92-130, the COMELEC on June 6, 1992 denied Aruelo's petition for non-compliance with Section 20 of R.A. No. 7166, which requires the submission of the evidence and documents in support of the petition to annul Gatchalian's proclamation (Rollo, p. 42). The trial court, on the other hand, issued an order dated July 10, 1992, denying Gatchalian's Motion to Dismiss and ordering him to file his answer to the petition within five days from notice, otherwise, "a general denial shall be deemed to have been entered" (Rollo, p. 45). The trial court also directed Aruelo to pay the deficiency in his filing fee, which the latter complied with. Gatchalian filed a Motion for Reconsideration of the order but the trial court denied the same on August 3, 1992. On August 6, 1992, Gatchalian filed before the Court of Appeals, a petition for certiorari docketed as CA-G.R. SP No. 28621, which alleged grave abuse of discretion on the part of the trial court in denying his Motion to Dismiss and his Motion for Reconsideration. Earlier, that is on July 23, 1992, Gatchalian filed before the trial court a Motion for Bill of Particulars, which was opposed by Aruelo. The trial court denied Gatchalian's motion in an order dated August 5, 1992, a copy of which was received by him on August 6, 1992.
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On August 11, 1992, Gatchalian submitted before the trial court his Answer with Counter-Protest and Counterclaim, alleging inter alia, that Aruelo was the one who committed the election fraud and that were it not for the said fraud, Gatchalian's margin over Aruelo would have been greater. Gatchalian prayed for the dismissal of the petition, the confirmation of his election and the award of damages. On the day the answer was filed, the trial court issued an order admitting it, and without Gatchalian's specific prayer, directed the revision of ballots in the precincts enumerated in Gatchalian's Counter-Protest and Construction. For this purpose, the trial court ordered the delivery of the contested ballot boxes to the Branch Clerk of Court. On August 14, 1992, Aruelo filed with the trial court a Motion to Reconsider As Well As To Set Aside "Answer with Counter-Protest and Counterclaim" Filed Out of Time by Protestee. The trial court, on September 2, 1992, denied Aruelo's motion and forthwith scheduled the constitution of the revision committee. On September 28, 1992, Aruelo prayed before the Court of Appeals for the issuance of a temporary restraining order or a writ of preliminary injunction to restrain the trial court from implementing the Order of August 11, 1992, regarding the revision of ballots. The Court of Appeals belatedly issued a temporary restraining order on November 9, 1992, after actual revision of the contested ballots ended on October 28, 1992. Meanwhile, Gatchalian filed with the Court of Appeals on September 21, 1992 another petition for certiorari (CA-G.R. SP No. 28977), again alleging grave abuse of discretion on the part of the trial court in issuing the Order dated August 5, 1992, which denied his Motion for Bill of Particulars. The Court of Appeals, in its Resolution dated September 28, 1992, dismissed this petition for lack of merit. On November 24, 1992, the Court of Appeals rendered a decision in CA-G.R. SP No. 28621, denying Gatchalian's petition, but declared, at the same time, that Gatchalian's Answer With Counter-Protest and Counterclaim was timely filed. The appellate court also lifted the temporary restraining order and ordered the trial court to "proceed with dispatch in the proceedings below" (Rollo, p. 212). Hence, this petition. Aruelo claims that in election contests, the COMELEC Rules of Procedure gives the respondent therein only five days from receipt of summons within which to file his answer to the petition (Part VI, Rule 35, Sec. 7) and that this five-day period had lapsed when Gatchalian filed his answer. According to him, the filing of motions to dismiss and motions for bill of particulars is prohibited by Section 1, Rule 13, Part III of the COMELEC Rules of Procedure; hence, the filing of said pleadings did not suspend the running of the five-day period, or give Gatchalian a new five-day period to file his answer. We do not agree. Petitioner filed the election protest (Civil Case No. -343-M-92) with the Regional Trial Court, whose proceedings are governed by the Revised Rules of Court. Section 1, Rule 13, Part III of the COMELEC Rules of Procedure is not applicable to proceedings before the regular courts. As expressly mandated by Section 2, Rule 1, Part I of the COMELEC Rules of Procedure, the filing of motions to dismiss and bill of particulars, shall apply only to proceedings brought before the COMELEC. Section 2, Rule 1, Part I provides: Sec. 2. Applicability These rules, except Part VI, shall apply to all actions and proceedings brought before the Commission. Part VI shall apply to election contests and quo warranto cases cognizable by courts of general or limited jurisdiction. It must be noted that nowhere in Part VI of the COMELEC Rules of Procedure is it provided that motions to dismiss and bill of particulars are not allowed in election protests or quo warranto cases pending before the regular courts. Constitutionally speaking, the COMELEC can not adopt a rule prohibiting the filing of certain pleadings in the regular courts. The power to promulgate rules concerning pleadings, practice and procedure in all courts is vested on the Supreme Court (Constitution, Art VIII, Sec. 5 [5]). Private respondent received a copy of the order of the Regional Trial Court denying his motion for a bill of particulars on August 6, 1992. Under Section 1 (b), Rule 12 of the Revised Rules of Court, a party has at least five days to file his answer after receipt of the order denying his motion for a bill of particulars. Private respondent, therefore, had until August 11, 1992 within which to file his answer. The Answer with Counter-Protest and Counterclaim filed by him on August 11, 1992 was filed timely. The instant case is different from a pre-proclamation controversy which the law expressly mandates to be resolved in a summary proceeding (B.P. Blg. 881, Art. XX, Sec. 246; COMELEC Rules of Procedure, Part V, Rule 27, Sec. 2; Dipatuan v. Commission on Elections, 185 SCRA 86 [1990]). Pre-proclamation controversies should be summarily decided, consistent with the legislators' desire that the canvass of the votes and the proclamation of the winning candidate be done with dispatch and without unnecessary delay. Questions as those involving the appreciation of the votes and the conduct of the balloting, which require more deliberate and 411 Election Laws COMELEC
necessarily longer consideration, are left for examination in the corresponding election protest (Abella v. Larrazabal, 180 SCRA 509 [1989]; Alonto v. Commission on Elections, 22 SCRA 878 [1968]). An election protest does not merely concern the personal interests of rival candidates for an office. Over and above the desire of the candidates to win, is the deep public interest to determine the true choice of the people. For this reason, it is a well-established principle that laws governing election protests must be liberally construed to the end that the popular will, expressed in the election of public officers, will not, by purely technical reasons, be defeated (Unda v. Commission on Elections, 190 SCRA 827 [1990]; De Leon v. Guadiz, Jr., 104 SCRA 591 [1981]; Macasundig v. Macalangan, 13 SCRA 577 [1965]; Corocoro v. Bascara, 9 SCRA 519 [1963]). We find no grave abuse of discretion on the part of the Court of Appeals. WHEREFORE, the petition is hereby DISMISSED. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 179431-32 June 22, 2010
LUIS K. LOKIN, JR., as the second nominee of CITIZENS BATTLE AGAINST CORRUPTION (CIBAC), Petitioner, vs. COMMISSION ON ELECTIONS and the HOUSE OF REPRESENTATIVES, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 180443 LUIS K. LOKIN, JR., Petitioner, vs. COMMISSION ON ELECTIONS (COMELEC), EMMANUEL JOEL J. VILLANUEVA, CINCHONA C. GONZALES and ARMI JANE R. BORJE, Respondents. DECISION BERSAMIN, J.: The principal question posed in these consolidated special civil actions for certiorari and mandamus is whether the Commission on Elections (COMELEC) can issue implementing rules and regulations (IRRs) that provide a ground for the substitution of a party-list 1 nominee not written in Republic Act (R.A.) No. 7941, otherwise known as the Party-List System Act, the law that the COMELEC thereby implements. Common Antecedents The Citizens Battle Against Corruption (CIBAC) was one of the organized groups duly registered under the party-list system of representation that manifested their intent to participate in the May 14, 2007 synchronized national and local elections. Together with its 2 manifestation of intent to participate, CIBAC, through its president, Emmanuel Joel J. Villanueva, submitted a list of five nominees from which its representatives would be chosen should CIBAC obtain the required number of qualifying votes. The nominees, in the order 3 that their names appeared in the certificate of nomination dated March 29, 2007, were: (1) Emmanuel Joel J. Villanueva; (2) herein petitioner Luis K. Lokin, Jr.; (3) Cinchona C. Cruz-Gonzales; (4) Sherwin Tugna; and (5) Emil L. Galang. The nominees certificates of acceptance were attached to the certificate of nomination filed by CIBAC. The list of nominees was later published in two newspapers 4 5 of general circulation, The Philippine Star News (sic) and The Philippine Daily Inquirer. Prior to the elections, however, CIBAC, still through Villanueva, filed a certificate of nomination, substitution and amendment of the list 6 of nominees dated May 7, 2007, whereby it withdrew the nominations of Lokin, Tugna and Galang and substituted Armi Jane R. Borje as one of the nominees. The amended list of nominees of CIBAC thus included: (1) Villanueva, (2) Cruz-Gonzales, and (3) Borje. Following the close of the polls, or on June 20, 2007, Villanueva sent a letter to COMELEC Chairperson Benjamin Abalos, transmitting therewith the signed petitions of more than 81% of the CIBAC members, in order to confirm the withdrawal of the nomination of Lokin, Tugna and Galang and the substitution of Borje. In their petitions, the members of CIBAC averred that Lokin and Tugna were not among the nominees presented and proclaimed by CIBAC in its proclamation rally held in May 2007; and that Galang had signified his desire to focus on his family life. On June 26, 2007, CIBAC, supposedly through its counsel, filed with the COMELEC en 8 Canvassers a motion seeking the proclamation of Lokin as its second nominee. The right of right of Lokin to be thus proclaimed were purportedly based on Party-List Canvass Report garnered a grand total of 744,674 votes. Using all relevant formulas, the motion asserted that seat and Lokin to a proclamation. The motion was opposed by Villanueva and Cruz-Gonzales. banc sitting as the National Board of CIBAC to a second seat as well as the No. 26, which showed CIBAC to have CIBAC was clearly entitled to a second
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Notwithstanding Villanuevas filing of the certificate of nomination, substitution and amendment of the list of nominees and the petitions of more than 81% of CIBAC members, the COMELEC failed to act on the matter, prompting Villanueva to file a petition to confirm the 9 certificate of nomination, substitution and amendment of the list of nominees of CIBAC on June 28, 2007. On July 6, 2007, the COMELEC issued Resolution No. 8219, whereby it resolved to set the matter pertaining to the validity of the withdrawal of the nominations of Lokin, Tugna and Galang and the substitution of Borje for proper disposition and hearing. The case was docketed as E.M. No. 07-054. In the meantime, the COMELEC en banc, sitting as the National Board of Canvassers, issued National Board of Canvassers (NBC) 11 Resolution No. 07-60 dated July 9, 2007 to partially proclaim the following parties, organizations and coalitions participating under the Party-List System as having won in the May 14, 2007 elections, namely: Buhay Hayaan Yumabong, Bayan Muna, CIBAC, Gabriela Women's Party, Association of Philippine Electric Cooperatives, Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms, Inc., Akbayan! Citizen's Action Party, Alagad, Luzon Farmers Party, Cooperative-Natco Network Party, Anak Pawis, Alliance of Rural Concerns and Abono; and to defer the proclamation of the nominees of the parties, organizations and coalitions with pending disputes until final resolution of their respective cases. The COMELEC en banc issued another resolution, NBC Resolution No. 07-72 dated July 18, 2007, proclaiming Buhay Hayaan Yumabong as entitled to 2 additional seats and Bayan Muna, CIBAC, Gabriela Women's Party, and Association of Philippine Electric Cooperatives to an additional seat each; and holding in abeyance the proclamation of the nominees of said parties, organizations and coalitions with pending disputes until the final resolution of their respective cases. With the formal declaration that CIBAC was entitled to an additional seat, Ricardo de los Santos, purportedly as secretary general of CIBAC, informed Roberto P. Nazareno, Secretary General of the House of Representatives, of the promulgation of NBC Resolution No. 07-72 and requested that Lokin be formally sworn in by Speaker Jose de Venecia, Jr. to enable him to assume office. Nazareno replied, however, that the request of Delos Santos could not be granted because COMELEC Law Director Alioden D. Dalaig had notified him of the pendency of E.M. 07-054. On September 14, 2007, the COMELEC en banc resolved E.M. No. 07-054
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thuswise:
WHEREFORE, considering the above discussion, the Commission hereby approves the withdrawal of the nomination of Atty. Luis K. Lokin, Sherwin N. Tugna and Emil Galang as second, third and fourth nominees respectively and the substitution thereby with Atty. Cinchona C. Cruz-Gonzales as second nominee and Atty. Armi Jane R. Borje as third nominee for the party list CIBAC. The new order of CIBAC's nominees therefore shall be: 1. Emmanuel Joel J. Villanueva 2. Cinchona C. Cruz-Gonzales 3. Armi Jane R. Borje SO ORDERED. The COMELEC en banc explained that the actions of Villanueva in his capacity as the president of CIBAC were presumed to be within the scope of his authority as such; that the president was charged by Section 1 of Article IV of the CIBAC By-Laws to oversee and direct the corporate activities, which included the act of submitting the party's manifestation of intent to participate in the May 14, 2007 elections as well as its certificate of nominees; that from all indications, Villanueva as the president of CIBAC had always been provided the leeway to act as the party's representative and that his actions had always been considered as valid; that the act of withdrawal, although done without any written Board approval, was accomplished with the Boards acquiescence or at least understanding; and that the intent of the party should be given paramount consideration in the selection of the nominees. As a result, the COMELEC en banc proclaimed Cruz-Gonzales as the official second nominee of CIBAC. oath of office as a Party-List Representative of CIBAC on September 17, 2007. Precs of the Consolidated Cases In G.R. No. 179431 and G.R. No. 179432, Lokin seeks through mandamus to compel respondent COMELEC to proclaim him as the official second nominee of CIBAC.
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Cruz-Gonzales took her
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In G.R. No. 180443, Lokin assails Section 13 of Resolution No. 7804 promulgated on January 12, 2007; and the resolution dated September 14, 2007 issued in E.M. No. 07-054 (approving CIBACs withdrawal of the nominations of Lokin, Tugna and Galang as CIBACs second, third and fourth nominees, respectively, and the substitution by Cruz-Gonzales and Borje in their stead, based on the 17 right of CIBAC to change its nominees under Section 13 of Resolution No. 7804). He alleges that Section 13 of Resolution No. 7804 18 expanded Section 8 of R.A. No. 7941. the law that the COMELEC seeks to thereby implement. In its comment, the COMELEC asserts that a petition for certiorari is an inappropriate recourse in law due to the proclamation of CruzGonzales as Representative and her assumption of that office; that Lokins proper recourse was an electoral protest filed in the House of Representatives Electoral Tribunal (HRET); and that, therefore, the Court has no jurisdiction over the matter being raised by Lokin. For its part, CIBAC posits that Lokin is guilty of forum shopping for filing a petition for mandamus and a petition for certiorari, considering that both petitions ultimately seek to have him proclaimed as the second nominee of CIBAC. Issues The issues are the following: (a) Whether or not the Court has jurisdiction over the controversy; (b) Whether or not Lokin is guilty of forum shopping; (c) Whether or not Section 13 of Resolution No. 7804 is unconstitutional and violates the Party-List System Act; and (d) Whether or not the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in approving the withdrawal of the nominees of CIBAC and allowing the amendment of the list of nominees of CIBAC without any basis in fact or law and after the close of the polls, and in ruling on matters that were intra-corporate in nature. Ruling The petitions are granted. A The Court has jurisdiction over the case The COMELEC posits that once the proclamation of the winning party-list organization has been done and its nominee has assumed office, any question relating to the election, returns and qualifications of the candidates to the House of Representatives falls under the jurisdiction of the HRET pursuant to Section 17, Article VI of the 1987 Constitution. Thus, Lokin should raise the question he poses herein either in an election protest or in a special civil action for quo warranto in the HRET, not in a special civil action for certiorari in this Court. We do not agree. An election protest proposes to oust the winning candidate from office. It is strictly a contest between the defeated and the winning candidates, based on the grounds of electoral frauds and irregularities, to determine who between them has actually obtained the majority of the legal votes cast and is entitled to hold the office. It can only be filed by a candidate who has duly filed a certificate of candidacy and has been voted for in the preceding elections. A special civil action for quo warranto refers to questions of disloyalty to the State, or of ineligibility of the winning candidate. The objective of the action is to unseat the ineligible person from the office, but not to install the petitioner in his place. Any voter may initiate the action, which is, strictly speaking, not a contest where the parties strive for supremacy because the petitioner will not be seated even if the respondent may be unseated. The controversy involving Lokin is neither an election protest nor an action for quo warranto, for it concerns a very peculiar situation in which Lokin is seeking to be seated as the second nominee of CIBAC. Although an election protest may properly be available to one party-list organization seeking to unseat another party-list organization to determine which between the defeated and the winning partylist organizations actually obtained the majority of the legal votes, Lokins case is not one in which a nominee of a particular party-list organization thereby wants to unseat another nominee of the same party-list organization. Neither does an action for quo warranto lie, considering that the case does not involve the ineligibility and disloyalty of Cruz-Gonzales to the Republic of the Philippines, or some other cause of disqualification for her.
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Lokin has correctly brought this special civil action for certiorari against the COMELEC to seek the review of the September 14, 2007 resolution of the COMELEC in accordance with Section 7 of Article IX-A of the 1987 Constitution, notwithstanding the oath and assumption of office by Cruz-Gonzales. The constitutional mandate is now implemented by Rule 64 of the 1997 Rules of Civil Procedure, which provides for the review of the judgments, final orders or resolutions of the COMELEC and the Commission on Audit. As Rule 64 states, the mode of review is by a petition for certiorari in accordance with Rule 65 to be filed in the Supreme Court within a limited period of 30 days. Undoubtedly, the Court has original and exclusive jurisdiction over Lokins petitions for certiorari and for mandamus against the COMELEC. B Petitioner is not guilty of forum shopping Forum shopping consists of the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. Thus, forum shopping may arise: (a) whenever as a result of an adverse decision in one forum, a party seeks a favorable decision (other than by appeal or certiorari) in another; or (b) if, after having filed a petition in the Supreme Court, a party files another petition in the Court of Appeals, because he thereby deliberately splits appeals "in the hope that even as one case in which a particular remedy is sought is dismissed, another case (offering a similar remedy) would still be open"; or (c) where a party attempts to obtain a writ of preliminary injunction from a court after failing to obtain the 19 writ from another court. What is truly important to consider in determining whether forum shopping exists or not is the vexation caused to the courts and the litigants by a party who accesses different courts and administrative agencies to rule on the same or related causes or to grant the same or substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered by the different fora 20 upon the same issue. The filing of identical petitions in different courts is prohibited, because such act constitutes forum shopping, a malpractice that is proscribed and condemned as trifling with the courts and as abusing their processes. Forum shopping is an improper conduct that 21 degrades the administration of justice. Nonetheless, the mere filing of several cases based on the same incident does not necessarily constitute forum shopping. The test is 22 whether the several actions filed involve the same transactions and the same essential facts and circumstances. The actions must 23 also raise identical causes of action, subject matter, and issues. Elsewise stated, forum shopping exists where the elements of litis 24 pendentia are present, or where a final judgment in one case will amount to res judicata in the other. Lokin has filed the petition for mandamus to compel the COMELEC to proclaim him as the second nominee of CIBAC upon the issuance of NBC Resolution No. 07-72 (announcing CIBACs entitlement to an additional seat in the House of Representatives), and to strike down the provision in NBC Resolution No. 07-60 and NBC Resolution No. 07-72 holding in abeyance "all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases." He has insisted that the COMELEC had the ministerial duty to proclaim him due to his being CIBACs second nominee; and that the COMELEC had no authority to exercise discretion and to suspend or defer the proclamation of winning party-list organizations with pending disputes. On the other hand, Lokin has resorted to the petition for certiorari to assail the September 14, 2007 resolution of the COMELEC (approving the withdrawal of the nomination of Lokin, Tugna and Galang and the substitution by Cruz-Gonzales as the second nominee and Borje as the third nominee); and to challenge the validity of Section 13 of Resolution No. 7804, the COMELECs basis for allowing CIBACs withdrawal of Lokins nomination. Applying the test for forum shopping, the consecutive filing of the action for certiorari and the action for mandamus did not violate the rule against forum shopping even if the actions involved the same parties, because they were based on different causes of action and the reliefs they sought were different. C Invalidity of Section 13 of Resolution No. 7804 The legislative power of the Government is vested exclusively in the Legislature in accordance with the doctrine of separation of powers. As a general rule, the Legislature cannot surrender or abdicate its legislative power, for doing so will be unconstitutional. Although the power to make laws cannot be delegated by the Legislature to any other authority, a power that is not legislative in 25 character may be delegated. Under certain circumstances, the Legislature can delegate to executive officers and administrative boards the authority to adopt and promulgate IRRs. To render such delegation lawful, the Legislature must declare the policy of the law and fix the legal principles that are to control in given cases. The Legislature should set a definite or primary standard to guide those empowered to execute the law. For as long as the policy is laid down and a proper standard is established by statute, there can be no unconstitutional delegation of legislative power when the Legislature leaves to selected instrumentalities the duty of making subordinate rules within the prescribed 416 Election Laws COMELEC
limits, although there is conferred upon the executive officer or administrative board a large measure of discretion. There is a distinction between the delegation of power to make a law and the conferment of an authority or a discretion to be exercised under and in 26 pursuance of the law, for the power to make laws necessarily involves a discretion as to what it shall be. The authority to make IRRs in order to carry out an express legislative purpose, or to effect the operation and enforcement of a law is not a power exclusively legislative in character, but is rather administrative in nature. The rules and regulations adopted and promulgated must not, however, subvert or be contrary to existing statutes. The function of promulgating IRRs may be legitimately exercised only for the purpose of carrying out the provisions of a law. The power of administrative agencies is confined to implementing the law or putting it into effect. Corollary to this is that administrative regulation cannot extend the law and amend a legislative enactment. It is axiomatic that the clear letter of the law is controlling and cannot be amended by a mere administrative rule issued for its implementation. Indeed, administrative or executive acts shall be valid only when they are not contrary to the laws or the 27 Constitution. To be valid, therefore, the administrative IRRs must comply with the following requisites to be valid: 1. Its promulgation must be authorized by the Legislature; 2. It must be within the scope of the authority given by the Legislature; 3. It must be promulgated in accordance with the prescribed procedure; and 4. It must be reasonable. The COMELEC is constitutionally mandated to enforce and administer all laws and regulations relative to the conduct of an election, a 29 plebiscite, an initiative, a referendum, and a recall. In addition to the powers and functions conferred upon it by the Constitution, the COMELEC is also charged to promulgate IRRs implementing the provisions of the Omnibus Election Code or other laws that the 30 COMELEC enforces and administers. The COMELEC issued Resolution No. 7804 pursuant to its powers under the Constitution, Batas Pambansa Blg. 881, and the Party31 List System Act. Hence, the COMELEC met the first requisite. The COMELEC also met the third requisite. There is no question that Resolution No. 7804 underwent the procedural necessities of publication and dissemination in accordance with the procedure prescribed in the resolution itself. Whether Section 13 of Resolution No. 7804 was valid or not is thus to be tested on the basis of whether the second and fourth requisites were met. It is in this respect that the challenge of Lokin against Section 13 succeeds. As earlier said, the delegated authority must be properly exercised. This simply means that the resulting IRRs must not be ultra vires as 32 to be issued beyond the limits of the authority conferred. It is basic that an administrative agency cannot amend an act of Congress, for administrative IRRs are solely intended to carry out, not to supplant or to modify, the law. The administrative agency issuing the IRRs may not enlarge, alter, or restrict the provisions of the law it administers and enforces, and cannot engraft additional non33 contradictory requirements not contemplated by the Legislature. Section 8 of R.A. No. 7941 reads: Section 8. Nomination of Party-List Representatives.-Each registered party, organization or coalition shall submit to the COMELEC not later that 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 of any elective office or a person who has lost his bid for an elective office in the immedia tely preceding election. No change of names or alteration of the order of 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. The provision is daylight clear. The Legislature thereby deprived the party-list organization of the right to change its nominees or to alter the order of nominees once the list is submitted to the COMELEC, except when: (a) the nominee dies; (b) the nominee withdraws in writing his nomination; or (c) the nominee becomes incapacitated. The provision must be read literally because its language is plain and free from ambiguity, and expresses a single, definite, and sensible meaning. Such meaning is conclusively presumed to be the meaning that the Legislature has intended to convey. Even where the courts should be convinced that the Legislature really intended 417 Election Laws COMELEC
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some other meaning, and even where the literal interpretation should defeat the very purposes of the enactment, the explicit declaration 34 of the Legislature is still the law, from which the courts must not depart. When the law speaks in clear and categorical language, there 35 is no reason for interpretation or construction, but only for application. Accordingly, an administrative agency tasked to implement a 36 statute may not construe it by expanding its meaning where its provisions are clear and unambiguous. The legislative intent to deprive the party-list organization of the right to change the nominees or to alter the order of the nominees was also expressed during the deliberations of the Congress, viz: MR. LAGMAN: And again on Section 5, on the nomination of party list representatives, I do not see any provision here which prohibits or for that matter allows the nominating party to change the nominees or to alter the order of prioritization of names of nominees. Is the implication correct that at any time after submission the names could still be changed or the listing altered? MR. ABUEG: Mr. Speaker, that is a good issue brought out by the distinguished Gentleman from Albay and perhaps a perfecting amendment may be introduced therein. The sponsoring committee will gladly consider the same. MR. LAGMAN: In other words, what I would like to see is that after the list is submitted to the COMELEC officially, no more changes should be made in the names or in the order of listing. MR. ABUEG: Mr. Speaker, there may be a situation wherein the name of a particular nominee has been submitted to the Commission on Elections but before election day the nominee changed his political party affiliation. The nominee is therefore no longer qualified to be included in the party list and the political party has a perfect right to change the name of that nominee who changed his political party affiliation. MR. LAGMAN: Yes of course. In that particular case, the change can be effected but will be the exception rather than the rule. Another exception most probably is the nominee dies, then there has to be a change but any change for that matter should always be at the last 37 part of the list so that the prioritization made by the party will not be adversely affected. The usage of "No" in Section 8 "No change of names or alteration of the order of 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, or becomes incapacitated, in which case the name of the substitute nominee shall be placed last in the list" renders Section 8 a negative law, and is indicative of the legislative intent to make the statute mandatory. Prohibitive or negative words can rarely, if ever, be directory, for 38 there is but one way to obey the command "thou shall not," and that is to completely refrain from doing the forbidden a ct, subject to certain exceptions stated in the law itself, like in this case. Section 8 does not unduly deprive the party-list organization of its right to choose its nominees, but merely divests it of the right to change its nominees or to alter the order in the list of its nominees names after submission of the list to the COMELEC. The prohibition is not arbitrary or capricious; neither is it without reason on the part of lawmakers. The COMELEC can rightly presume from the submission of the list that the list reflects the true will of the party-list organization. The COMELEC will not concern itself with whether or not the list contains the real intended nominees of the party-list organization, but will only determine whether the nominees pass all the requirements prescribed by the law and whether or not the nominees possess all the qualifications and none of the disqualifications. Thereafter, the names of the nominees will be published in newspapers of general circulation. Although the people vote for the party-list organization itself in a party-list system of election, not for the individual nominees, they still have the right to know who the nominees of any particular party-list organization are. The publication of the list of the party-list nominees in newspapers of general circulation serves that right of the people, enabling the voters to make intelligent and informed choices. In contrast, allowing the party-list organization to change its nominees through withdrawal of their nominations, or to alter the order of the nominations after the submission of the list of nominees circumvents the voters demand for transparency. The lawmakers exclusion of such arbitrary withdrawal has eliminated the possibility of such circumvention. D Exceptions in Section 8 of R.A. 7941 are exclusive Section 8 of R.A. No. 7941 enumerates only three instances in which the party-list organization can substitute another person in place of the nominee whose name has been submitted to the COMELEC, namely: (a) when the nominee dies; (b) when the nominee withdraws in writing his nomination; and (c) when the nominee becomes incapacitated. The enumeration is exclusive, for, necessarily, the general rule applies to all cases not falling under any of the three exceptions. When the statute itself enumerates the exceptions to the application of the general rule, the exceptions are strictly but reasonably construed. The exceptions extend only as far as their language fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exceptions. Where the general rule is established by a statute with exceptions, none but the enacting authority can curtail the former. Not even the courts may add to the latter by implication, and it is a rule that an express exception excludes all 418 Election Laws COMELEC
others, although it is always proper in determining the applicability of the rule to inquire whether, in a particular case, it accords with 39 reason and justice. 1avvphi1 The appropriate and natural office of the exception is to exempt something from the scope of the general words of a statute, which is otherwise within the scope and meaning of such general words. Consequently, the existence of an exception in a statute clarifies the intent that the statute shall apply to all cases not excepted. Exceptions are subject to the rule of strict construction; hence, any doubt will be resolved in favor of the general provision and against the exception. Indeed, the liberal construction of a statute will seem to require in many circumstances that the exception, by which the operation of the statute is limited or abridged, should receive a restricted construction. E Section 13 of Resolution No. 7804 expanded the exceptions under Section 8 of R.A. No. 7941 Section 13 of Resolution No. 7804 states: Section 13. Substitution of nominees. A party-list nominee may be substituted only when he dies, or his nomination is withdrawn by the party, or he becomes incapacitated to continue as such, or he withdraws his acceptance to a nomination. In any of these cases, the name of the substitute nominee shall be placed last in the list of nominees. No substitution shall be allowed by reason of withdrawal after the polls. Unlike Section 8 of R.A. No. 7941, the foregoing regulation provides four instances, the fourth being when the "nomination is withdrawn by the party." Lokin insists that the COMELEC gravely abused its discretion in expanding to four the three statutory grounds for substituting a nominee. We agree with Lokin. The COMELEC, despite its role as the implementing arm of the Government in the enforcement and administration of all laws and 40 regulations relative to the conduct of an election, has neither the authority nor the license to expand, extend, or add anything to the law it seeks to implement thereby. The IRRs the COMELEC issues for that purpose should always accord with the law to be implemented, and should not override, supplant, or modify the law. It is basic that the IRRs should remain consistent with the law they 41 intend to carry out. Indeed, administrative IRRs adopted by a particular department of the Government under legislative authority must be in harmony with the provisions of the law, and should be for the sole purpose of carrying the laws general provisions into effect. The law itself cannot be 42 expanded by such IRRs, because an administrative agency cannot amend an act of Congress. The COMELEC explains that Section 13 of Resolution No. 7804 has added nothing to Section 8 of R.A. No. 7941, merely reworded and rephrased the statutory provisions phraseology. The explanation does not persuade. To reword means to alter the wording of or to restate in other words; to rephrase is to phrase anew or in a new form. signify that the meaning of the original word or phrase is not altered.
44 43
because it has
Both terms
However, the COMELEC did not merely reword or rephrase the text of Section 8 of R.A. No. 7941, because it established an entirely new ground not found in the text of the provision. The new ground granted to the party-list organization the unilateral right to withdraw its nomination already submitted to the COMELEC, which Section 8 of R.A. No. 7941 did not allow to be done. Neither was the grant of the unilateral right contemplated by the drafters of the law, who precisely denied the right to withdraw the nomination (as the quoted record of the deliberations of the House of Representatives has indicated). The grant thus conflicted with the statutory intent to save the nominee from falling under the whim of the party-list organization once his name has been submitted to the COMELEC, and to spare the electorate from the capriciousness of the party-list organizations. We further note that the new ground would not secure the object of R.A. No. 7941 of developing and guaranteeing a full, free and open party-list electoral system. The success of the system could only be ensured by avoiding any arbitrariness on the part of the party-list organizations, by seeing to the transparency of the system, and by guaranteeing that the electorate would be afforded the chance of making intelligent and informed choices of their party-list representatives. 419 Election Laws COMELEC
The insertion of the new ground was invalid. An axiom in administrative law postulates that administrative authorities should not act arbitrarily and capriciously in the issuance of their IRRs, but must ensure that their IRRs are reasonable and fairly adapted to secure the end in view. If the IRRs are shown to bear no reasonable relation to the purposes for which they were authorized to be issued, they 45 must be held to be invalid and should be struck down. F Effect of partial nullity of Section 13 of Resolution No. 7804 An IRR adopted pursuant to the law is itself law. In case of conflict between the law and the IRR, the law prevails. There can be no 47 question that an IRR or any of its parts not adopted pursuant to the law is no law at all and has neither the force nor the effect of law. The invalid rule, regulation, or part thereof cannot be a valid source of any right, obligation, or power. Considering that Section 13 of Resolution No. 7804 to the extent that it allows the party-list organization to withdraw its nomination already submitted to the COMELEC was invalid, CIBACs withdrawal of its nomination of Lokin and the others and its substitution of them with new nominees were also invalid and ineffectual. It is clear enough that any substitution of Lokin and the others could only be for any of the grounds expressly stated in Section 8 of R.A. No. 7941. Resultantly, the COMELECs approval of CIBACs petition of withdrawal of the nominations and its recognition of CIBACs substitution, both through its assailed September 14, 2007 resolution, should be struck down for lack of legal basis. Thereby, the COMELEC acted without jurisdiction, having relied on the invalidly issued Section 13 of Resolution No. 7804 to support its action. WHEREFORE, we grant the petitions for certiorari and mandamus. We declare Section 13 of Resolution No. 7804 invalid and of no effect to the extent that it authorizes a party-list organization to withdraw its nomination of a nominee once it has submitted the nomination to the Commission on Elections. Accordingly, we annul and set aside: (a) The resolution dated September 14, 2007 issued in E. M. No. 07-054 approving Citizens Battle Against Corruptions withdrawal of the nominations of Luis K. Lokin, Jr., Sherwin N. Tugna, and Emil Galang as its second, third, and fourth nominees, respectively, and ordering their substitution by Cinchona C. Cruz-Gonzales as second nominee and Armi Jane R. Borje as third nominee; and (b) The proclamation by the Commission on Elections of Cinchona C. Cruz-Gonzales as a Party-List Representative representing Citizens Battle Against Corruption in the House of Representatives. We order the Commission on Elections to forthwith proclaim petitioner Luis K. Lokin, Jr. as a Party-List Representative representing Citizens Battle Against Corruption in the House of Representatives. We make no pronouncements on costs of suit. SO ORDERED.
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G.R. Nos. L-68379-81 September 22, 1986 EVELIO B. JAVIER, petitioner, vs. THE COMMISSION ON ELECTIONS, and ARTURO F. PACIFICADOR, respondents. Raul S. Roco and Lorna Patajo-Kapunan for petitioner.
CRUZ, J.: The new Solicitor General has moved to dismiss this petition on the ground that as a result of supervening events it has become moot and academic. It is not as simple as that. Several lives have been lost in connection with this case, including that of the petitioner himself. The private respondent is now in hiding. The purity of suffrage has been defiled and the popular will scorned through a confabulation of those in authority. This Court cannot keep silent in the face of these terrible facts. The motion is denied. The petitioner and the private respondent were candidates in Antique for the Batasang Pambansa in the May 1984 elections. The former appeared to enjoy more popular support but the latter had the advantage of being the nominee of the KBL with all its perquisites of power. On May 13, 1984, the eve of the elections, the bitter contest between the two came to a head when several followers of the petitioner were ambushed and killed, allegedly by the latter's men. Seven suspects, including respondent Pacificador, are now facing trial for these murders. The incident naturally heightened tension in the province and sharpened the climate of fear among the electorate. Conceivably, it intimidated voters against supporting the Opposition candidate or into supporting the candidate of the ruling party. It was in this atmosphere that the voting was held, and the post-election developments were to run true to form. Owing to what he claimed were attempts to railroad the private respondent's proclamation, the petitioner went to the Commission on Elections to question the canvass of the election returns. His complaints were dismissed and the private respondent was proclaimed winner by the Second Division of the said body. The petitioner thereupon came to this Court, arguing that the proclamation was void because made only by a division and not by the Commission on Elections en banc as required by the Constitution. Meanwhile, on the strength of his proclamation, the private respondent took his oath as a member of the Batasang Pambansa. The case was still being considered by this Court when on February 11, 1986, the petitioner was gunned down in cold blood and in broad daylight. The nation, already indignant over the obvious manipulation of the presidential elections in favor of Marcos, was revolted by the killing, which flaunted a scornful disregard for the law by the assailants who apparently believed they were above the law. This ruthless murder was possibly one of the factors that strengthened the cause of the Opposition in the February revolution that toppled the Marcos regime and installed the present government under President Corazon C. Aquino. The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent-both of whom have gone their separate ways-could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic. The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen c omes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future. It is a notorious fact decried by many people and even by the foreign press that elections during the period of the Marcos dictatorship were in the main a desecration of the right of suffrage. Vote-buying, intimidation and violence, illegal listing of voters, falsified returns, and other elections anomalies misrepresented and vitiated the popular will and led to the induction in office of persons who did not enjoy the confidence of the sovereign electorate. Genuine elections were a rarity. The price at times was human lives. The rule was 421 Election Laws COMELEC
chicanery and irregularity, and on all levels of the polls, from the barangay to the presidential. This included the rigged plebiscites and referenda that also elicited the derision and provoked the resentments of the people. Antique in 1984 hewed to the line and equaled if it did not surpass the viciousness of elections in other provinces dominated by the KBL. Terrorism was a special feature, as demonstrated by the killings previously mentioned, which victimized no less than one of the main protagonists and implicated his rival as a principal perpetrator. Opposition leaders were in constant peril of their lives even as their supporters were gripped with fear of violence at the hands of the party in power. What made the situation especially deplorable was the apparently indifferent attitude of the Commission on Elections toward the anomalies being committed. It is a matter of record that the petitioner complained against the terroristic acts of his opponents. All the electoral body did was refer the matter to the Armed Forces without taking a more active step as befitted its constitutional role as the guardian of free, orderly and honest elections. A more assertive stance could have averted the Sibalom election eve massacre and saved the lives of the nine victims of the tragedy. Public confidence in the Commission on Elections was practically nil because of its transparent bias in favor of the administration. This prejudice left many opposition candidates without recourse except only to this Court. Alleging serious anomalies in the conduct of the elections and the canvass of the election returns, the petitioner went to the 1 Commission on Elections to prevent the impending proclamation of his rival, the private respondent herein. Specifically, the petitioner charged that the elections were marred by "massive terrorism, intimidation, duress, vote-buying, fraud, tampering and falsification of election returns under duress, threat and intimidation, snatching of ballot boxes perpetrated by the armed men of respondent 2 Pacificador." Particular mention was made of the municipalities of Caluya, Cabate, Tibiao, Barbaza, Laua-an, and also of San Remigio, where the petitioner claimed the election returns were not placed in the ballot boxes but merely wrapped in cement bags or Manila paper. On May 18, 1984, the Second Division of the Commission on Elections directed the provincial board of canvassers of Antique to 3 proceed with the canvass but to suspend the proclamation of the winning candidate until further orders. On June 7, 1984, the same Second Division ordered the board to immediately convene and to proclaim the winner without prejudice to the outcome of the case 4 before the Commission. On certiorari before this Court, the proclamation made by the board of canvassers was set aside as 5 premature, having been made before the lapse of the 5-day period of appeal, which the petitioner had seasonably made. Finally, on July 23, 1984, the Second Division promulgated the decision now subject of this petition which inter alia proclaimed Arturo F. 6 Pacificador the elected assemblyman of the province of Antique. This decision was signed by Chairman Victoriano Savellano and Commissioners Jaime Opinion and Froilan M. Bacungan. Previously 7 asked to inhibit himself on the ground that he was a former law partner of private respondent Pacificador, Opinion had refused. The petitioner then came to this Court, asking us to annul the said decision. The core question in this case is one of jurisdiction, to wit: Was the Second Division of the Commission on Elections authorized to promulgate its decision of July 23, 1984, proclaiming the private respondent the winner in the election? The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973 Constitution. Section 2 confers on the Commission on Elections the power to: (2) Be the sole judge of all contests relating to the election, returns and qualifications of all member of the Batasang Pambansa and elective provincial and city officials. Section 3 provides: The Commission on Elections may sit en banc or in three divisions. All election cases may be heard and decided by divisions except contests involving members of the Batasang Pambansa, which shall be heard and decided en banc. Unless otherwise provided by law, all election cases shall be decided within ninety days from the date of their submission for decision. While both invoking the above provisions, the petitioner and the respondents have arrived at opposite conclusions. The records are voluminous and some of the pleadings are exhaustive and in part even erudite. And well they might be, for the noble profession of the law-despite all the canards that have been flung against it-exerts all efforts and considers all possible viewpoints in its earnest search of the truth. The petitioner complains that the Proclamation made by the Second Division is invalid because all contests involving the members of the Batasang Pambansa come under the jurisdiction of the Commission on Elections en banc. This is as it should be, he says, to insure 422 Election Laws COMELEC
a more careful decision, considering the importance of the offices involved. The respondents, for their part, argue that only contests need to be heard and decided en banc and all other cases can be-in fact, should be-filed with and decided only by any of the three divisions. The former Solicitor General makes much of this argument and lays a plausible distinction between the terms "contests" and "cases" to 8 prove his point. Simply put, his contention is that the pre-proclamation controversy between the petitioner and the private respondent was not yet a contest at that time and therefore could be validly heard by a mere division of the Commission on Elections, consonant with Section 3. The issue was at this stage still administrative and so was resoluble by the Commission under its power to administer all 9 laws relative to the conduct of elections, not its authority as sole judge of the election contest. A contest, according to him, should involve a contention between the parties for the same office "in which the contestant seeks not only 10 to oust the intruder but also to have himself inducted into the office." No proclamation had as yet been made when the petition was filed and later decided. Hence, since neither the petitioner nor the private respondent had at that time assumed office, there was no Member of the Batasang Pambansa from Antique whose election, returns or qualifications could be examined by the Commission on Elections en banc. In providing that the Commission on Elections could act in division when deciding election cases, according to this theory, the Constitution was laying down the general rule. The exception was the election contest involving the members of the Batasang 11 Pambansa, which had to be heard and decided en banc. The en banc requirement would apply only from the time a candidate for the Batasang Pambansa was proclaimed as winner, for it was only then that a contest could be permitted under the law. All matters arising before such time were, necessarily, subject to decision only by division of the Commission as these would come under the general heading of "election cases." As the Court sees it, the effect of this interpretation would be to divide the jurisdiction of the Commission on Elections into two, viz.: (1) over matters arising before the proclamation, which should be heard and decided by division in the exercise of its administrative power; and (2) over matters arising after the proclamation, which could be heard and decided only en banc in the exercise of its judicial power. Stated otherwise, the Commission as a whole could not act as sole judge as long as one of its divisions was hearing a pre-proclamation matter affecting the candidates for the Batasang Pambansa because there was as yet no contest; or to put it still another way, the Commission en banc could not do what one of its divisions was competent to do, i.e., decide a pre-proclamation controversy. Moreover, a mere division of the Commission on Elections could hear and decide, save only those involving the election, returns and qualifications of the members of the Batasang Pambansa, all cases involving elective provincial and city officials from start to finish, including preproclamation controversies and up to the election protest. In doing so, it would exercise first administrative and then judicial powers. But in the case of the Commission en banc, its jurisdiction would begin only after the proclamation was made and a contest was filed and not at any time and on any matter before that, and always in the exercise only of judicial power. This interpretation would give to the part more powers than were enjoyed by the whole, granting to the division while denying to the banc. We do not think this was the intention of the Constitution. The framers could not have intended such an irrational rule. We believe that in making the Commission on Elections the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners. It is worth observing that the special procedure for the settlement of what are now called "pre-proclamation controversies" is a relatively recent innovation in our laws, having been introduced only in 1978, through P.D. No. 1296, otherwise known as the 1978 Election Code. Section 175 thereof provided: Sec. 175. Suspension and annulment of proclamation.-The Commission shall be the sole judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall be final and executory. It may, motu proprio or upon written petition, and after due notice and hearing order the suspension of the proclamation of a candidate-elect or annul any proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173 and 174 thereof. Before that time all proceedings affecting the election, returns and qualifications of public officers came under the complete jurisdiction of the competent court or tribunal from beginning to end and in the exercise of judicial power only. It therefore could not have been the intention of the framers in 1935, when the Commonwealth Charter was adopted, and even in 1973, when the past Constitution was imposed, to divide the electoral process into the pre-proclamation stage and the post-proclamation stage and to provide for a separate jurisdiction for each stage, considering the first administrative and the second judicial. Besides, the term "contest" as it was understood at the time Article XII-C. Section 2(2) was incorporated in the 1973 Constitution did not follow the strict definition of a contention between the parties for the same office. Under the Election Code of 1971, which presumably was taken into consideration when the 1973 Constitution was being drafted, election contests included the quo warranto petition that could be filed by any voter on the ground of disloyalty or ineligibility of the contestee although such voter was himself not claiming the 12 office involved. 423 Election Laws COMELEC
The word "contests" should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claim of title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute. Needless to stress, the term should be given a consistent meaning and understood in the same sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution. The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee's title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of his certificate of candidacy. All these came under the exclusive jurisdiction of the Commission on Elections insofar as they applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of the 1973 Constitution, could be heard and decided by it only en banc. We interpret "cases" as the generic term denoting the actions that might be heard and decided by the Commission on Elections, only by division as a general rule except where the case was a "contest" involving members of the Batasang Pambansa, which had to be heard and decided en banc. As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving members of the Batasang Pambansa be heard and decided by the Commission en banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en banc only after the proclamation had been made, for it might then be too late already. We are all-too-familiar with the grab-the-proclamation-and-delay-the-protest strategy of many unscrupulous candidates which has resulted in the frustration of the popular will and the virtual defeat of the real winners in the election. The respondent's theory would make this gambit possible for the pre- proclamation proceedings, being summary in nature, could be hastily decided by only three members in division, without the care and deliberation that would have otherwise been observed by the Commission en banc. After that, the delay. The Commission en banc might then no longer be able to rectify in time the proclamation summarily and not very judiciously made by the division. While in the end the protestant might be sustained, he might find himself with only a Phyrric victory because the term of his office would have already expired. It may be argued that in conferring the initial power to decide the pre- proclamation question upon the division, the Constitution did not intend to prevent the Commission en banc from exercising the power directly, on the theory that the greater power embraces the lesser. It could if it wanted to but then it could also allow the division to act for it. That argument would militate against the purpose of the provision, which precisely limited all questions affecting the election contest, as distinguished from election cases in general, to the jurisdiction of the Commission en banc as sole judge thereof. "Sole judge" excluded not only all other tribunals but also and even the division of the Commission A decision made on the contest by less than the Commission en banc would not meet the exacting standard of care and deliberation ordained by the Constitution Incidentally, in making the Commission the "sole judge" of pre- proclamation controversies in Section 175, supra, the law was obviously 13 referring to the body sitting en banc. In fact, the pre-proclamation controversies involved in Aratuc vs. Commission on Elections, where the said provision was applied, were heard and decided en banc. Another matter deserving the highest consideration of this Court but accorded cavalier attention by the respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law partner of the private respondent, he obstinately 14 insisted on participating in the case, denying he was biased. Given the general attitude of the Commission on Elections toward the party in power at the time, and the particular relationship between Commissioner Opinion and MP Pacificador, one could not be at least apprehensive, if not certain, that the decision of the body would be adverse to the petitioner. As in fact it was. Commissioner Opinion's refusal to inhibit himself and his objection to the transfer of the case to another division cannot be justified by any criterion of propriety. His conduct on this matter belied his wounded protestations of innocence and proved the motives of the Second Division when it rendered its decision. This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due 15 process. To bolster that requirement, we have held that the judge must not only be impartial but must also appear to be impartial as 16 an added assurance to the parties that his decision will be just. The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect.
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Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play cans for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extra-judicial) proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law. The relationship of the judge with one of the parties may color the facts and distort the law to the prejudice of a just decision. Where this is probable or even only posssible, due process demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar's wife, he must be above suspicion. Commissioner Opinion, being a lawyer, should have recognized his duty and abided by this well-known rule of judicial conduct. For refusing to do so, he divested the Second Division of the necessary vote for the questioned 17 decision, assuming it could act, and rendered the proceeding null and void. Since this case began in 1984, many significant developments have taken place, not the least significant of which was the February revolution of "people power" that dislodged the past regime and ended well nigh twenty years of travail for this captive nation. The petitioner is gone, felled by a hail of bullets sprayed with deadly purpose by assassins whose motive is yet to be disclosed. The private respondent has disappeared with the "pomp of power" he had before enjoyed. Even the Batasang Pambansa itself has been abolished, "an iniquitous vestige of the previous regime" discontinued by the Freedom Constitution. It is so easy now, as has been suggested not without reason, to send the rec rds of this case to the archives and say the case is finished and the book is closed. But not yet. Let us first say these meager words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and all-exacting obsession: the return of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and Jonathan, "swifter than eagles and stronger than lions." A year ago this Court received a letter which began: "I am the sister of the late Justice Calixto Zaldivar. I am the mother of Rhium Z. Sanchez, the grandmother of Plaridel Sanchez IV and Aldrich Sanchez, the aunt of Mamerta Zaldivar. I lost all four of them in the election eve ambush in Antique last year." She pleaded, as so did hundreds of others of her provincemates in separate signed petitions sent us, for the early resolution of that horrible crime, saying: "I am 82 years old now. I am sick. May I convey to you my prayer in church and my plea to you, 'Before I die, I would like to see justice to my son and grandsons.' May I also add that the people of Antique have not stopped praying that the true winner of the last elections will be decided upon by the Supreme Court soon." That was a year ago and since then a new government has taken over in the wake of the February revolution. The despot has escaped, and with him, let us pray, all the oppressions and repressions of the past have also been banished forever. A new spirit is now upon our land. A new vision limns the horizon. Now we can look forward with new hope that under the Constitution of the future every Filipino shall be truly sovereign in his own country, able to express his will through the pristine ballow with only his conscience as his counsel. This is not an impossible dream. Indeed, it is an approachable goal. It can and will be won if we are able at last, after our long ordeal, to say never again to tyranny. If we can do this with courage and conviction, then and only then, and not until then, can we truly say that the case is finished and the book is closed. WHEREFORE, let it be spread in the records of this case that were it not for the supervening events that have legally rendered it moot and academic, this petition would have been granted and the decision of the Commission on Elections dated July 23, 1984, set aside as violative of the Constitution. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 80007 January 25, 1988 CARMELO F. LAZATIN, petitioner, vs. THE COMMISSION ON ELECTIONS, FRANCISCO R. BUAN, JR., and LORENZO G. TIMBOL, respondents.
PARAS, J.: Petitioner filed the instant petition assailing the jurisdiction of the COMELEC to annul his proclamation after he had taken his oath of office, assumed office, and discharged the duties of Congressman of the First District of Pampanga. The petitioner claims that the House Electoral Tribunal and not the COMELEC is the sole judge of all election contests. (Sec. 17 Art. 6 of the 1987 Constitution), In the Comments of candidates Buan, Jr., and Timbol, they allege that the instant petition has become moot and academic because the assailed COMELEC Resolution had already become final and executory when the Supreme Court issued a temporary restraining order on October 6, 1987. They also allege that the COMELEC hastily proclaimed petitioner Lazatin without first resolving their separate written protests against the Election returns in Pampanga, docketed as SPC Nos. 87-234, 87-358, 87-351. In the COMMENT of the Solicitor General, he alleges that the instant petition should be given due course because the proclamation was valid. The Telex Order issued by the COMELEC directing the canvassing board to proclaim the winner if warranted under Section 245 of the Omnibus Election Code, was in effect a grant of authority by the COMELEC to the canvassing board, to proclaim the winner. A Separate Comment was filed by the COMELEC, alleging that the proclamation of petitioner was illegal and void because the board simply corrected the returns contested by the petitioner without waiting for the final resolutions of the petitions of candidates Timbol, Buan, Jr., and the petitioner himself, against certain election returns. The Consolidated Reply filed by the petitioner, reiterates previous arguments. The Supreme Court, in a Resolution dated November 17, 1987 resolved to give due course to the petition. The petition is impressed with merit because petitioner has been proclaimed winner of the Congressional elections in the first district of Pampanga, has taken his oath of office as such, and assumed his duties as Congressman. For this Court to take cognizance of the electoral protest against him would be to usurp the functions of the House Electoral Tribunal. The alleged invalidity of the proclamation (which had been previously ordered by the COMELEC itself) despite alleged irregularities in connection therewith, and despite the pendency of the protests of the rival candidates, is a matter that is also addressed, considering the premises, to the sound judgment of the Electoral Tribunal. WHEREFORE, the revocation by the COMELEC of petitioner's proclamation is hereby SET ASIDE. SO ORDERED.
426
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 84297 December 8, 1988 CARMELO F. LAZATIN, petitioner, vs. THE HOUSE ELECTORAL TRIBUNAL and LORENZO G. TIMBOL, respondents. Angara, Abello, Concepcion, Regala & Cruz for petitioner. The Solicitor General for respondents.
CORTES, J.: Petitioner and private respondent were among the candidates for Representative of the first district of Pampanga during the elections of May 11, 1987. During the canvassing of the votes, private respondent objected to the inclusion of certain election returns. But since the Municipal Board of Canvassers did not rule on his objections, he brought his case to the Commission on Elections. On May 19, 1987, the COMELEC ordered the Provincial Board of Canvassers to suspend the proclamation of the winning candidate for the first district of Pampanga. However, on May 26, 1987, the COMELEC ordered the Provincial Board of Canvassers to proceed with the canvassing of votes and to proclaim the winner. On May 27, 1987, petitioner was proclaimed as Congressman-elect. Private respondent thus filed in the COMELEC a petition to declare petitioners proclamation void ab initio. Later, private respondent also filed a petition to prohibit petitioner from assuming office. The COMELEC failed to act on the second petition so petitioner was able to assume office on June 30, 1987. On September 15, 1987, the COMELEC declared petitioner's proclamation void ab initio. Petitioner challenged the COMELEC resolution before this Court in a petition entitled "Carmelo F. Lazatin v. The Commission on Elections, Francisco R. Buan, Jr. and Lorenzo G. Timbol," docketed as G.R. No. 80007. In a decision promulgated on January 25, 1988, the Court set aside the COMELEC's revocation of petitioner's proclamation. On February 8, 1988, private respondent filed in the House of Representatives Electoral Tribunal (hereinafter referred to as HRET an election protest, docketed as Case No. 46. Petitioner moved to dismiss private respondent's protest on the ground that it had been filed late, citing Sec. 250 of the Omnibus Election Code (B.P. Blg. 881). However, the HRET filed that the protest had been filed on time in accordance with Sec. 9 of the HRET Rules. Petitioner's motion for reconsideration was also denied. Hence, petitioner has come to this Court, challenging the jurisdiction of the HRET over the protest filed by private respondent. A. The Main Case This special civil action for certiorari and prohibition with prayer for the issuance of a writ of preliminary injunction and/or restraining order seeks the annulment and setting aside of (1) the resolution of the HRET, dated May 2, 1988, in Case No. 46, holding that the protest filed by private respondent had been filed on time, and (2) its July 29, 1988 resolution denying the motion for reconsideration. Without giving due course to the petition, the Court required the respondents to comment on the petition. The Solicitor General filed a comment in behalf of the HRET while the private respondent filed his comment with a motion to admit counter/cross petition and the petitioner filed his consolidated reply. Thereafter, the Court resolved to give due course to the petition, taking the comments filed as the answers to the petition, and considered the case submitted for decision. Resolution of the instant controversy hinges on which provision governs the period for filing protests in the HRET. Should Sec. 250 of the Omnibus Election Code be held applicable, private respondent's election protest would have been filed out of time. On the other hand, if Sec. 9 of the HRET Rules is applicable, the filing of the protest would be timely. Succinctly stated, the basic issue is whether or not private respondent's protest had been seasonably filed. To support his contention that private respondent's protest had been filed out of time and, therefore, the HRET did not acquire jurisdiction over it, petitioner relies on Sec. 250 of the Omnibus Election Code, which provides: Sec. 250. Election contests for Batasang Pambansa, regional, provincial and city offices. A sworn petition contesting the election of any Member of the Batasang Pambansa or any regional, provincial or city official shall be 427 Election Laws COMELEC
filed with the Commission by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the election. [Emphasis supplied.] Petitioner argues that even assuming that the period to file an election protest was suspended by the pendency of the petition to annul his proclamation, the petition was filed out of time, considering that he was proclaimed on May 27, 1987 and therefore private respondent had only until June 6, 1987 to file a protest; that private respondent filed a petition to annul the proclamation on May 28, 1987 and the period was suspended and began to run again on January 28, 1988 when private respondent was served with a copy of the decision of the Court in G.R, No. 80007; that private respondent therefore only had nine (9) days left or until February 6, 1988 within which to file his protest; but that private respondent filed his protest with the HRET only on February 8, 1988. On the other hand, in finding that the protest was flied on time, the HRET relied on Sec. 9 of its Rules, to wit: Election contests arising from the 1987 Congressional elections shall be filed with the Office of the Secretary of the Tribunal or mailed at the post office as registered matter addressed to the Secretary of the Tribunal, together with twelve (12) legible copies thereof plus one (1) copy for each protestee, within fifteen (15) days from the effectivity of these Rules on November 22, 1987 where the proclamation has been made prior to the effectivity of these Rules, otherwise, the same may be filed within fifteen (15) days from the date of the proclamation. Election contests arising from the 1987 Congressional elections filed with the Secretary of the House of Representatives and transmitted by him to the Chairman of the Tribunal shall be deemed filed with the tribunal as of the date of effectivity of these Rules, subject to payment of filing fees as prescribed in Section 15 hereof. [Emphasis supplied.] Thus, ruled the HRET: On the basis of the foregoing Rule, the protest should have been filed within fifteen (15) days from November 22, 1987, or not later than December 7, 1987. However, on September 15, 1987, the COMELEC acting upon a petition filed by the Protestant (private respondent herein), promulgated a Resolution declaring the proclamation void ab initio. This resolution had the effect of nullifying the proclamation, and such proclamation was not reinstated until Protestant received a copy of the Supreme Court's decision annulling the COMELEC Resolution on January 28, 1988. For all intents and purposes, therefore, Protestee's (petitioner herein) proclamation became effective only on January 28, 1988, and the fifteen-day period for Protestant to file his protest must be reckoned from that date. Protestant filed his protest on February 8, 1988, or eleven (11) days after January 28. The protest, therefore, was filed well within the reglementary period provided by the Rules of this Tribunal. (Rollo, p. 129.] The Court is of the view that the protest had been filed on time and, hence, the HRET acquired jurisdiction over it. Petitioner's reliance on Sec. 250 of the Omnibus Election Code is misplaced. Sec. 250 is couched in unambiguous terms and needs no interpretation. It applies only to petitions filed before the COMELEC contesting the election of any Member of the Batasang Pambansa, or any regional, provincial or city official. Furthermore, Sec. 250 should be read together with Sec. 249 of the same code which provides that the COMELEC "shall be the sole judge of all contests relating to the elections, returns and qualifications of all Members of the Batasang Pambansa, elective regional, provincial and city officials," reiterating Art. XII-C, Sec. 2(2) of the 1973 Constitution. It must be emphasized that under the 1973 Constitution there was no provision for an Electoral Tribunal, the jurisdiction over election contests involving Members of the Batasang Pambansa having been vested in the COMELEC. That Sec. 250 of the Omnibus Election Code, as far as contests regarding the election, returns and qualifications of Members of the Batasang Pambansa is concerned, had ceased to be effective under the 1987 Constitution is readily apparent. First, the Batasang Pambansa has already been abolished and the legislative power is now vested in a bicameral Congress. Second, the Constitution vests exclusive jurisdiction over all contests relating to the election, returns and qualifications of the Members of the Senate and the House of Representatives in the respective Electoral Tribunals [Art. VI, Sec. 171. The exclusive original jurisdiction of the COMELEC is limited by constitutional fiat to election contests pertaining to election regional, provincial and city offices and its appellate jurisdiction to those involving municipal and barangay offices [Art. IX-C, Sec. 2(2)]. Petitioner makes much of the fact that the provisions of the Omnibus Election Code on the conduct of the election were generally made applicable to the congressional elections of May 11, 1987. It must be emphasized, however, that such does not necessarily imply the application of all the provisions of said code to each and every aspect of that particular electoral exercise, as petitioner contends. On the contrary, the Omnibus Election Code was only one of several laws governing said elections. * An examination of the Omnibus Election Code and the executive orders specifically applicable to the May 11, 1987 congressional elections reveals that there is no provision for the period within which to file election protests in the respective Electoral Tribunals. Thus, the question may well be asked whether the rules governing the exercise of the Tribunals' constitutional functions may be prescribed by statute.
428
The Court is of the considered view that it may not. The power of the HRET, as the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives, to promulgate rules and regulations relative to matters within its jurisdiction, including the period for filing election protests before it, is beyond dispute. Its rule-making power necessarily flows from the general power granted it by the Constitution. This is the import of the ruling in the landmark case of Angara v. Electoral Commission [63 Phil. 139 (1936)], where the Court, speaking through Justice Laurel, declared in no uncertain terms: ... [The creation of the Electoral Commission carried with it ex necessitate rei the power regulative in character to limit the time within which protests entrusted to its cognizance should be filed. It is a settled rule of construction that where a general power is conferred or duly enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred (Cooley, Constitutional Limitations, eighth ed., vol. 1, pp. 138, 139). In the absence of any further constitutional provision relating to the procedure to be followed in filing protests before the Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the proper exercise of its exclusive power to judge all contests relating to the election, returns and qualifications of members of the National Assembly, must be deemed by necessary implication to have been lodged also in the Electoral Commission. [At p. 177; emphasis supplied.] A short review of our constitutional history reveals that, except under the 1973 Constitution, the power to judge all contests relating to the election, returns and qualifications of the members of the legislative branch has been exclusively granted either to the legislative body itself [i.e., the Philippine Assembly under the Philippine Bill of 1902 and the Senate and the House of Representatives under the Philippine Autonomy Act (Jones Law)] or to an independent, impartial and non-partisan body attached to the legislature [i.e., the Electoral Commission under the 1935 Constitution and the Electoral Tribunals under the amended 1935 and the 1987 Constitutions]. Except under the 1973 Constitution, the power granted is that of being the sole judge of all contests relating to the election, returns and qualifications of the members of the legislative body. Article VI of the 1987 Constitution states it in this wise: See. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. The use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred [Angara v. Electoral Commission, supra, at 1621. The exercise of the power by the Electoral Commission under the 1935 Constitution has been described as "intended to be as complete and unimpaired as if it had remained originally in the legislature" [Id. at 175]. Earlier, this grant of power to the legislature was characterized by Justice Malcolm as "full, clear and complete" [Veloso v. Board of Canvassers of Leyte and Samar, 39 Phil. 886 (1919)]. Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal Suanes v. Chief Accountant of the Senate, 81 Phil. 818 (1948)] and it remained as full, clear and complete as that previously granted the legislature and the Electoral Commission Lachica v. Yap, G.R. No. L25379, September 25, 1968, 25 SCRA 1401. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution. The 1935 and 1987 Constitutions, which separate and distinctly apportion the powers of the three branches of government, lodge the power to judge contests relating to the election, returns and qualifications of members of the legislature in an independent, impartial and non-partisan body attached to the legislature and specially created for that singular purpose (i.e., the Electoral Commission and the Electoral Tribunals) [see Suanes v. Chief Accountant of the Senate, supra]. It was only under the 1973 Constitution where the delineation between the powers of the Executive and the Legislature was blurred by constitutional experimentation that the jurisdiction over election contests involving members of the Legislature was vested in the COMELEC, an agency with general jurisdiction over the conduct of elections for all elective national and local officials. That the framers of the 1987 Constitution intended to restore fully to the Electoral Tribunals exclusive jurisdiction over all contests relating to the election, returns and qualifications of its Members, consonant with the return to the separation of powers of the three branches of government under the presidential system, is too evident to escape attention. The new Constitution has substantially retained the COMELEC's purely administrative powers, namely, the exclusive authority to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall; to decide, except those involving the right to vote, all questions affecting elections; to deputize law enforcement agencies and government instrumentalities for election purposes; to register political parties and accredit citizens' arms; to file in court petitions for inclusion and exclusion of voters and prosecute, where appropriate, violations of election laws [Art. IX(C), Sec. 2(1), (3)-(6)], as well as its rule-making power. In this sense, and with regard to these areas of election law, the provisions of the Omnibus Election Code are fully applicable, except where specific legislation provides otherwise. But the same cannot be said with regard to the jurisdiction of the COMELEC to hear and decide election contests. This has been trimmed down under the 1987 Constitution. Whereas the 1973 Constitution vested the COMELEC with jurisdiction to be the sole judge of all contests relating to the elections, returns and qualifications of all Members of the Batasang Pambansa and elective 429 Election Laws COMELEC
provincial and city officials [Art. XII(C), Sec. 2(2)], the 1987 Constitution, while lodging in the COMELEC exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial and city officials and appellate jurisdiction over contests relating to the election of municipal and barangay officials [Art. IX(C), Sec. 2(2)]. expressly makes the Electoral Tribunals of the Senate and the House of Representatives the sole judge of all contests relating to the election, returns and qualifications of their respective Members [Art. VI, Sec. 17]. The inescapable conclusion from the foregoing is that it is well within the power of the HRET to prescribe the period within which protests may be filed before it. This is founded not only on historical precedents and jurisprudence but, more importantly, on the clear language of the Constitution itself. Consequently, private respondent's election protest having been filed within the period prescribed by the HRET, the latter cannot be charged with lack of jurisdiction to hear the case. B. Private-Respondent's Counter/Cross Petition Private respondent in HRET Case No. 46 prayed for the issuance of a temporary restraining order and/or writ of preliminary injunction to enjoin petitioner herein from discharging his functions and duties as the Representative of the first district of Pampanga during the pendency of the protest. However, on May 5, 1988, the HRET resolved to defer action on said prayer after finding that the grounds therefor did not appear to be indubitable. Private respondent moved for reconsideration, but this was denied by the HRET on May 30, 1988. Thus, private respondent now seeks to have the Court annul and set aside these two resolutions and to issue a temporary restraining order and/or writ of preliminary injunction on the premise that the grounds therefor are too evident to be doubted. The relief prayed for in private respondent's counter/cross petition is not forthcoming. The matter of whether or not to issue a restraining order or a writ of preliminary injunction during the pendency of a protest lies within the sound discretion of the HRET as sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives. Necessarily, the determination of whether or not there are indubitable grounds to support the prayer for the aforementioned ancilliary remedies also lies within the HRETs sound judgment. Thus, in G.R. No. 80007, where the Court declined to take cognizance of the private respondent's electoral protest, this Court said: The alleged invalidity of the proclamation (which had been previously ordered by the COMELEC itself) despite alleged irregularities in connection therewith, and despite the pendency of the protests of the rival candidates, is a matter that is also addressed, considering the premises, to the sound judgment of the Electoral Tribunal. Moreover, private respondent's attempt to have the Court set aside the HRET's resolution to defer action on his prayer for provisional relief is undeniably premature, considering that the HRET had not yet taken any final action with regard to his prayer. Hence, there is actually nothing to review or and and set aside. But then again, so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to the election, returns and qualifications of Members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court. As stated earlier, the power granted to the Electoral Tribunal is full, clear and complete and "excludes the exercise of any authority on the part of this Court that would in any wise restrict or curtail it or even affect the same." (Lachica v. Yap, supra, at 143.] As early as 1938 in Morrero v. Bocar (66 Phil. 429, 431 (1938)), the Court declared that '[the judgment rendered by the [Electoral] Commission in the exercise of such an acknowledged power is beyond judicial interference, except, in any event, upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process of law." Under the 1987 Constitution, the scope of the Court's authority is made explicit. The power granted to the Court includes the duty "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government (Art. VIII, Sec. 11. Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the HRET's judgment. In the instant case, there is no occasion for the exercise of the Court's collective power, since no grave abuse of discretion that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed for has been clearly shown. WHEREFORE, the instant Petition is hereby DISMISSED. Private respondent's Counter/Cross Petition is likewise DISMISSED. SO ORDERED.
430
Republic of the Philippines SUPREME COURT Manila
EN BANC
MILES ANDREW MARI ROCES, G.R. NO. 167499 Petitioner, Present: DAVIDE, JR., C.J., PUNO, PANGANIBAN, QUISUMBING, YNARES-SANTIAGO, - versus - SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, and GARCIA, JJ. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and Promulgated: MARIA ZENAIDA B. ANG PING, Respondents. September 15, 2005 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x DECISION PUNO, J.: If there is a right, there must be a remedy is an old legal adage. The case at bar provides the perfect setting for the application of this adage which is a demand for simple justice. The facts will show how the respondent's right to run for a public office has been frustrated by unscrupulous officials in charge of the sanctity of our electoral process. Petitioner Miles Roces (Roces) and former Congressman Harry Ang Ping (Mr. Ang Ping) filed their respective certificates of candidacy rd (COCs) for the position of Representative for the 3 Congressional District of Manila in the May 2004 elections. On January 5, 2004, a registered voter of Manila named Alejandro Gomez questioned Mr. Ang Ping's candidacy before the COMELEC through a petition to deny due course or cancel his COC.[1] The petition alleged that Mr. Ang Ping misrepresented himself to be a natural-born citizen, hence was disqualified for the position. Acting for the COMELEC First Division, Commissioner Virgilio O. Garcilliano issued an order on April 30, 2004scheduling the promulgation of its resolution on May 5, 2004.[2] Two days before the scheduled promulgation or on May 3, 2004, Mr. Ang Ping filed with the COMELEC a Sworn Declaration of Withdrawal of his COC.[3] The next day, May 4, 2004, the General Counsel for the Nationalist Peoples Coalition, the political party of Mr. Ang Ping, sought that Mr. Ang Ping's wife, Ma. Zenaida Ang Ping (Mrs. Ang Ping), substitute for him.[4] Mr. Ang Ping also filed a motion to cancel the scheduled promulgation and dismiss the petition to deny due course or cancel his COC on the same date.[5] On May 5, 2004, Commissioner Resurreccion Z. Borra deferred the promulgation for lack of quorum as he was the sole Commissioner in attendance.[6] Despite all these developments, the COMELEC First Division, through Commissioners Rufino S.B. Javier, Resurreccion Z. Borra, and Virgilio O. Garcilliano, issued a resolution granting the petition to deny due course to Mr. Ang Ping's COC and ordering the Board of Election Inspectors of Manila not to count any vote cast in his favor.[7] It ruled that the resolution which was originally scheduled for promulgation by Commissioner Garcilliano on May 5, 2004was instead promulgated on April 30, 2004, 431 Election Laws COMELEC
the same date that the notice of promulgation was issued.[8] The resolution was served on Mr. Ang Ping's counsel on May 8, 2004.[9] Compounding the woes of Mr. Ang Ping, and despite the deferment of the promulgation by Commissioner Borra at a hearing on May 5, 2004, the COMELEC First Division issued on the same date an order denying Mr. Ang Ping's motion to dismiss. It held that the motion to dismiss was filed after the 'promulgation of the April 30, 2004 resolution granting the petition to deny due course to Mr. Ang Ping's COC.[10] On May 9, 2004, and before the expiration of the five-day reglementary period,[11] Mr. Ang Ping moved for reconsideration of the April 30, 2004 resolution and the case was elevated to the COMELEC en banc.[12] While the case was still with the COMELEC First Division, or on May 8, 2004, the COMELEC en banc issued Resolution No. 6823, declaring moot Mr. Ang Ping's Affidavit of Withdrawal, denying due course to the substitute COC of Mrs. Ang Ping and ordering the Regional Election Director to delete Mr. Ang Ping's name from the certified list of candidates.[13] Among the signatories to the Resolution were Commissioners Javier, Borra, and Garcilliano of the COMELEC First Division before which the petition to deny due course was still pending.[14] Mr. Ang Ping had no knowledge of the resolution. Racing against time or on May 11, 2004, the spouses Ang Ping repaired to this Court and filed a petition for certiorari with prayer for temporary restraining order, status quo order and/or writ of preliminary injunction docketed as G.R. No. 163259, assailing COMELEC Resolution No. 6823.[15] The next day or on May 12, 2004, this Court issued a resolution requiring Roces to comment and denied the issuance of an order suspending the proclamation.[16] On the election day itself, the Manila City Board of Canvassers resolved not to canvass the votes for Mr. or Mrs. Ang Ping citing COMELEC Resolution No. 6823.[17] On May 15, 2004, after counting only 6,347 votes out of the 150,387 registered voters in the district, it proclaimed Roces winner.[18] The spouses Ang Ping appealed the Board resolution to the COMELEC en banc[19] and filed a petition to annul the proclamation[20] but these were dismissed by COMELEC's Resolution No. 7257 and Omnibus Order of July 6, 2004.[21] On May 19, 2004, Roces filed his Comment to the petition of spouses Ang Ping with this Court.[22] On May 25, 2004, this Court required the spouses Ang Ping to file their consolidated reply to the Comment.[23] On May 24, 2004, Mrs. Ang Ping filed an Election Protest Ad Cautelam with the House of Representatives Electoral Tribunal (HRET), which was docketed as HRET Case No. 04-004.[24] In her election protest, Mrs. Ang Ping alleged, among others, that COMELEC Resolution No. 6823 was a 'glaring case of deprivation of Mr. and Mrs. Ang Ping's right to 'elevate SPC 04-224 to the Commission en banc and that the COMELEC's April 30, 2004 resolution was irregularly promulgated. Roces filed his answer alleging, among others, that the HRET has no jurisdiction over the case.[25] On July 16, 2004, the spouses Ang Ping filed their consolidated reply with this Court.[26] On July 27, 2004, we required Mrs. Ang Ping to show cause why the petition in G.R. No. 163259 should not be dismissed in view of the filing and pendency of HRET Case No. 04004.[27] In her Compliance filed on July 30, 2004, Mrs. Ang Ping explained that the issue of whether the COMELEC gravely abused its discretion in issuing the COMELEC Resolution No. 6823 may be ventilated as one of the issues to be settled in the HRET Election Protest since the non-canvassing of the 'Ang Ping votes' and the proclamation of petitioner Roces were founded on COMELEC Resolution No. 6823 and were raised as the principal issues in the HRET Election Protest. This notwithstanding, the spouses Ang Ping manifested that they will 'submit to any disposal which this Honorable Court may find appropriate under the above circumstances' and 'would defer and will accept any order/resolution of the Honorable Court that would resolve to dismiss the instant petition/controversy, but allowing them to pursue and concentrate their time and effort in the above-mentioned Ad Cautela HRET Election Protest Case, which they intend to convert to a REGULAR PROTEST case, in such an event.[28] On August 10, 2004, this Court dismissed G.R. No. 163259 in view of the pending HRET protest filed by Mrs. Ang Ping.[29] The resolution eventually became final and executory.[30] Thereafter, Mrs. Ang Ping filed in the HRET a motion to convert the ad cautelam protest to a regular protest. The HRET granted the motion on September 9, 2004.[31] In the HRET, Roces filed a motion to dismiss the protest, assailing in the main the personality of Mrs. Ang Ping to file the protest. It also raised the following issues: (1) whether the HRET has jurisdiction to review COMELEC Resolution No. 6823; (2) whether Mrs. Ang Ping can validly substitute for Mr. Ang Ping; (3) whether the protest may be resolved by mere canvass of election returns; (4) whether the proceeding is a 'protest considering that it questions proceedings held before the Manila City Board of Canvassers; (5) whether Mrs. Ang Ping could claim any right to the ballots cast considering she was not listed in the certified list of COMELEC candidates; (6) whether the petition is sufficient in form and substance despite failing to state the specific precincts protested; and (7) whether forum shopping was committed. After extensive oral arguments, the HRET denied Roces's motion to dismiss on March 3, 2005. It ruled that Mrs. Ang Ping was a proper party to file the protest against Roces since: (1) there was no final COMELEC resolution disqualifying or denying due course to the COC of Mr. Ang Ping, thus her substitution for the latter was legally permissible under the Omnibus Election Code;[32] (2) she was rd one of the candidates voted for during election day in the 3 District of Manila;[33] and (3) the COMELEC Order of May 5, 2004 was of questionable validity for the reason that: (a) it was issued in violation of its April 30, 2004 resolution setting the promulgation for 432 Election Laws COMELEC
May 5, 2004 and despite the fact that the records had not yet reached the COMELEC en banc;[34] and (b) there was no prior notice and hearing in violation of Section 78 of the Omnibus Election Code.[35] Roces's motion for reconsideration of the HRET order was denied on March 21, 2005. Roces then filed the present petition for certiorari assailing the two preceding resolutions of the HRET.[36] The issues for resolution are: (1) whether or not the HRET committed grave abuse of discretion amounting to lack or excess of jurisdiction when it ruled that Mrs. Ang Ping is a proper party to file the election protest despite the denial in due course and cancellation of her COC under COMELEC Resolution No. 6823; and (2) whether or not HRET has jurisdiction to review a resolution or order of the COMELEC and/or declare the same as void and disregard or set it aside. After several months or on April 28, 2005, the COMELEC en banc issued a resolution denying Mr. Ang Ping's motion for reconsideration of the COMELEC's April 30, 2004 resolution for being moot and academic due to the petitioner's proclamation, Mr. Ang Ping's withdrawal of his candidacy and Mrs. Ang Ping's attempt to substitute for her husband.[37] We hold that the HRET did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it denied the petitioner's motion to dismiss for the following reasons: First. ' The HRET is the sole judge of all contests relating to the election, returns, and qualifications of the members of the House of Representatives[38] and has the power to promulgate procedural rules to govern proceedings brought before it.[39] This exclusive jurisdiction includes the power to determine whether it has the authority to hear and determine the controversy presented, and the right to decide whether that state of facts exists which confers jurisdiction, as well as all other matters which arise in the case legitimately before it.[40] Accordingly, it has the power to hear and determine, or inquire into, the question of its own jurisdiction, both as to parties and as to subject matter, and to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction.[41] One of the three essential elements of jurisdiction is that proper parties must be present.[42] Consequently, the HRET merely exercised its exclusive jurisdiction when it ruled that Mrs. Ang Ping was a proper party to contest the election of Roces. Second. There is no dispute that to support his motion to dismiss, Roces offered as evidence the COMELEC resolutions denying due course to Mrs. Ang Ping's COC. In doing so, Roces submitted to the HRET the admissibility and validity of these resolutions and the HRET cannot be faulted in reviewing the said resolutions especially for the purpose of determining whether Roces was able to discharge his burden of proving that Mrs. Ang Ping is not the proper party to assail his election. In passing upon the COMELEC resolutions especially for that purpose, it cannot be said that the HRET usurped the jurisdiction of the COMELEC. On the merits of the HRET ruling, we hold that the HRET did not abuse its discretion in holding that Mrs. Ang Ping is a proper party to contest the election of Roces. Under COMELEC rules, the procedure of promulgation of a decision or resolution is as follows: SECTION 5. Promulgation. ' The promulgation of a decision or resolution of the Commission or a Division shall be made on a date previously fixed, of which notice shall be served in advance upon the parties or their attorneys personally or by registered mail or by telegram.[43]
Promulgation is important because it determines when the reglementary period begins to toll. In the case at bar, Commissioner Garcilliano fixed the promulgation of its resolution whether to give due course to the candidacy of Mr. Ang Ping on May 5, 2004. For mysterious reasons, the COMELEC First Division of Commissioner Garcillano did not promulgate the resolution on May 5, 2004in accordance with its notice of promulgation. In violation of the abovecited rule, and despite the deferment of the promulgation by Commissioner Borra to a date to be set by the COMELEC First Division, the resolution was deemed 'promulgated by the COMELEC on April 30, 2004 when it was filed with the clerk of court. The April 30, 2004COMELEC resolution was received by Mr. Ang Ping's counsel only on May 8, 2004.[44] The mysterious April 30, 2004 resolution was thereafter used to run roughshod over the rights of the Ang Pings. Thus, on May 5, 2004, the COMELEC First Division of Commissioner Garcilliano denied Mr. Ang Ping's motion to dismiss. Allegedly, Mr. Ang Ping's motion was filed after the April 30, 2004 resolution. To make matters worse, the COMELEC en banc usurped the jurisdiction of the COMELEC First Division when it issued Resolution No. 6823 on May 8, 2004 which ordered the deletion of Mr. Ang Ping's name from the Certified List of Candidates and denied the spouses Ang Ping's motions to withdraw and substitute despite the fact that: (1) the reglementary period of Mr. Ang Ping to appeal had not yet expired; and (2) Mr. Ang Ping had filed a motion for reconsideration of the preceding order on May 10, 2004 within the five-day reglementary period. Nowhere is it provided in the law that the COMELEC en banc has the power to assume jurisdiction motu proprio over a petition to deny due course pending before a division of the Commission. Diametrically opposed thereto are the provisions of the Constitution and COMELEC Rules of Procedure which provide that motions for 433 Election Laws COMELEC
reconsideration of the COMELEC division's decisions, resolutions, orders or rulings must first be filed in the Divisions before the Commission en banc may take cognizance thereof, viz.: SECTION 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.[45]
SECTION 3. The Commission Sitting in Divisions. ' The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special proceedings except in accreditation of citizens' arms of the Commission.[46]
SECTION 5. How Motion for Reconsideration Disposed Of. ' Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc.
SECTION 6. Duty of Clerk of Court of Commission to Calendar Motion for Resolution. ' The Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the certification thereof. (Emphases supplied)[47]
This premature COMELEC Resolution No. 6823 was then used on May 12, 2004, or on the election day itself, by the Manila City Board of Canvassers as the basis of its resolution not to canvass the votes for Mr. or Mrs. Ang Ping. It then proclaimed Roces the winner despite having counted only 6,347 votes out of the 150,387 registered voters of the district.[48] Following these highly suspect resolutions, Roces was proclaimed winner on May 15, 2004. All told, it cannot be denied that the effect of COMELEC en banc Resolution No. 6823 was to execute the April 30, 2004 resolution of its First Division which, at that time, had not yet become final and executory. These irregularities cannot be swept away by the belated COMELEC en banc's April 28, 2005resolution denying Mr. Ang Ping's motion for reconsideration dated May 10, 2004.[49] It is argued that Mrs. Ang Ping's motions for reconsideration and appeals 'cured whatever defects occurred at the COMELEC. Citing T.H. Valderama & Sons, Inc. v. Drilon,[50] Roces points to the petition for certiorari filed with this Court on May 11, 2004 by Mrs. Ang Ping assailing COMELEC Resolution No. 6823 and her acquiescence to any 'appropriate action taken (by the Court) including the dismissal of the above petition. Contrary to Roces's posture, Valderama and its kin required that the aggrieved party be given an opportunity to be heard. In the case at bar, it ought to be emphasized that the private respondent was systematically denied the opportunity to be heard. The resolution of the COMELEC's First Division was made before its priorily set date of promulgation, deemed final and executory by the COMELEC en banc in Resolution No. 6823 before expiry of the reglementary period, and executed by the Manila City Board of Canvassers. The petition for certiorari filed by Mrs. Ang Ping challenged these resolutions and could not have cured these blatant violations of her right to due process. In truth, this Court referred the case of Mrs. Ang Ping to the HRET where she has filed a protest ad cautelam. There is no iota of doubt that the COMELEC's resolutions are void ab initio for violating Mrs. Ang Ping's constitutional right to due process. Judgments entered in a proceeding failing to comply with procedural due process are void, as is one entered by a court acting in a manner inconsistent with due process.[51] A void judgment is defined as one that, from its inception, is a complete nullity and without legal effect. A void judgment is not entitled to the respect accorded to, and is attended by none of the consequences of, a valid adjudication. Indeed, a void judgment need not be recognized by anyone, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It has no legal or binding force or efficacy for any purpose or at any place. It cannot affect, impair, or create rights, nor can any rights be based on it. All proceedings founded on the void judgment are themselves regarded as invalid and ineffective for any purpose.[52] Needless to stress, the HRET did not commit grave abuse of discretion in assuming jurisdiction over the election protest as the COMELEC Resolution dated April 30, 2004, Order of May 5, 2004, and Resolution No. 6823 were void ab initio.
434
Third. Petitioner contends that the HRET cannot review decisions of the COMELEC and that COMELEC decisions, orders, or rulings may be solely reviewed by the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.[53] It is true that generally, the method of assailing a judgment or order of the COMELEC is via petition for certiorari.[54] As aforestated, however, it was petitioner who submitted these resolutions to the HRET as proofs that Mrs. Ang Ping was not a proper party. These same resolutions were collaterally attacked by Mrs. Ang Ping before the HRET when she alleged that these violated her right to due process.[55] A void judgment or resolution may be impeached through collateral attack.[56] A direct attack on a judgment or resolution is defined as an attempt to avoid or correct it in some manner provided by law, in a proceeding instituted for that very purpose, in the same action and in the same tribunal. Conversely, a collateral attack is an attempt to impeach the judgment or resolution by matters dehors the record, before a tribunal other than the one in which it was rendered, in an action other than that in which it was rendered; an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it; any proceeding which is not instituted for the express purpose of annulling, correcting, or modifying such decree; an objection, incidentally raised in the course of the proceeding, which presents an issue collateral to the issues made by the pleadings.[57] The rule that a void judgment or decree is subject to collateral attack at any time is based upon a court's inherent authority to expunge void acts from its records.[58] The void resolutions of the COMELEC, especially the April 30, 2004 resolution issued by its First Division, cannot oust the HRET of its jurisdiction over the case at bar. Fourth. We hasten to add that judgments, orders and resolutions should only be declared void in the most exceptional circumstances due to detrimental effects on the doctrine of finality of judgments. The circumstances of this case, however, are unique in that the private respondent was denied due process and was forced to seek justice in the HRET. In fact, it was this Court that referred the private respondent to the HRET when it dismissed the latter's petition in G.R. No. 163259 on the ground of the pendency of HRET Case No. 04-004. To grant the petition now would effectively foreclose the private respondent's access to any remedy despite violation of her right to due process. IN VIEW WHEREOF, the petition is dismissed. The temporary restraining order previously issued by the Court is lifted. SO ORDERED.
435
JOSELITO R. MENDOZA, Petitioner, vs. COMMISSION ON ELECTIONS and ROBERTO M. PAGDANGANAN, Respondents. DECISION BRION, J.: The present case involves a clash between the power under the Philippine Constitution of the respondent Commission on Elections (COMELEC) in the handling of a provincial election contest, and the claimed due process rights of a party to the contest. The petitio ner 1 Joselito R. Mendoza (the petitioner) essentially asserts in his petition for certiorari that the COMELEC conducted proceedings in the election contest for the gubernatorial position of the Province of Bulacan, between him and the respondent Roberto M. Pagdanganan (the respondent), without due regard to his fundamental due process rights. The COMELEC, on the other hand, claims that its decisionmaking deliberations are internal, confidential and do not require notice to and the participation of the contending parties. THE ANTECEDENTS The petitioner and the respondent vied for the position of Governor of the Province of Bulacan in the May 14, 2007 elections. The petitioner was proclaimed winning candidate and assumed the office of Governor. The respondent seasonably filed an election protest with the COMELEC, which was raffled to the Second Division and docketed as EPC No. 2007-44. Revision of ballots involving the protested and counter-protested precincts in Angat, Bocaue, Calumpit, Doa Remedios Trinidad, Guiginto, Malolos, Meycauayan, Norzagaray, Pandi, Paombong, Plaridel, Pulilan, San Rafael and San Jose del Monte soon followed. The revision was conducted at the COMELECs office in Intramuros. After revision, the parties presented their other evidence, leading to the parties formal offer of their respective evidence. The COMELEC approved the parties formal offer of evidence and then required the parties to submit their respective memoranda. The parties complied with the COMELECs order. The case was thereafter submitted for resolution. On March 2, 2009 the COMELEC transferred the Bulacan ballot boxes, including those involved in the provincial election contest, to the Senate Electoral Tribunal (SET) in connection with the protest filed by Aquilino Pimentel III against Juan Miguel Zubiri. In light of this development, the petitioner moved to suspend further proceedings. . The COMELECs Second Division denied the petitioners motion in its Order of April 29, 2009, ruling that the COMELEC has plenary powers to find alternative methods to facilitate the resolution of the election protest; thus, it concluded that it would continue the proceedings after proper coordination with the SET. The petitioner moved to reconsider this Order, but the COMELECs Second Division denied the motion in its Order of May 26, 2009. These inter-related Resolutions led to the COMELECs continued action specifically, the appreciation of ballots on the provincial election contest at the SET offices. Allegedly alarmed by information on COMELEC action on the provincial election contest within the SET premises without notice to him and without his participation, the petitioners counsel wrote the SET Secretary, Atty. Irene Guevarra, a letter dated June 10, 2009 to 2 confirm the veracity of the reported conduct of proceedings. The SET Secretary responded on June 17, 2009 as follows: x x x please be informed that the conduct of proceedings in COMELEC EPC No. 2007-44 (Pagdanganan vs. Mendoza) within the Tribunal Premises was authorized by then Acting Chairman of the Tribunal, Justice Antonio T. Carpio, upon formal request of the Office of Commissioner Lucenito N. Tagle. Basis of such grant is Section 3, Comelec Resolution No. 2812 dated 17 October 1995, stating that "(t)he Tribunals, the Commission and the Courts shall coordinate and make arrangement with each other so as not to delay or interrupt the revision of ballots being conducted. The synchronization of revision of ballots shall be such that the expeditious disposition of the respective protest case shall be the primary concern." While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of 3 other proceedings in local election protest cases within its premises as may be requested. [emphasis supplied] 436 Election Laws COMELEC
THE PETITION The SET Secretarys response triggered the filing of the present petition raising the following ISSUES A. WHETHER OR NOT THE COMELEC VIOLATED DUE PROCESS BY CONDUCTING PROCEEDINGS WITHOUT GIVING DUE NOTICE TO THE PETITIONER. B. WHETHER OR NOT THE COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO AN EXCESS OF JURISDICTION IN APPRECIATING BALLOTS WHICH ARE NOT IN ITS OFFICIAL CUSTODY AND ARE OUTSIDE ITS OWN PREMISES, AUTHORITY AND CONTROL. The petitioner argues that the election protest involves his election as Governor; thus, its subject matter involves him and the people of the Province of Bulacan who elected him. On this basis, he claims entitlement to notice and participation in all matters that involve or are related to the election protest. He further asserts that he had the legitimate expectation that no further proceedings would be held or conducted in the case after its submission for decision. Citing the commentaries of Father Joaquin Bernas, the petitioner argues that the proceedings before the COMELEC in election protests are judicial in nature and character. Thus, the strictures of judicial due process specifically, (a) opportunity to be heard and (b) that judgment be rendered only after lawful hearing apply. Notices in judicial dispute, he claims, are not really just a matter of courtesy; they are elementary fundamental element of due process, they are part and parcel of a right of a party to be heard. He further 5 cites Justice Isagani A. Cruz, who wrote: x x x Every litigant is entitled to his day in court. He has a right to be notified of every incident of the proceeding and to be present at every stage thereof so that he may be heard by himself and counsel for the protection of his interest. The petitioner claims that without notice to him of the proceedings, the due process element of the right to have judgment only after lawful hearing is absent. There is no way, he claims, that a judicial proceeding held without notice to the parties could be described as a lawful hearing, especially a proceeding which has as its subject matter the sovereign will of an entire province. He was therefore denied his day in court, he claims, when the COMELEC conducted the examination and appreciation of ballots. The proceedings should be stopped and declared null and void; its future results, too, should be nullified, as nothing derived from the anomalous and unconstitutional clandestine and unilateral proceedings should ever be part of any decision that the COMELEC may subsequently render. The poisonous fruits (derived from the proceedings) should have no part and should not be admitted for any purpose and/or in any judicial proceeding. Other than his due process concern, the petitioner takes issue with the COMELECs appreciation of ballots even when the ballots and other election materials were no longer in its official custody and were outside its premises, authority and control. He asserts that an important element of due process is that the judicial body should have jurisdiction over the property that is the subject matter of the proceedings. In this case, the COMELEC has transferred possession, custody and jurisdiction over the ballots to the SET, a tribunal separate and independent from the COMELEC and over which the COMELEC exercises no authority or jurisdiction. For the COMELEC to still conduct proceedings on property, materials and evidence no longer in its custody violates the principle of separation of powers. The petitioner also points out that the COMELECs unilateral appreciation of the ballots in the SET premises deviates from the Commissions usual and time honored practice and procedure of conducting proceedings within its premises and while it has custody over the ballots. There is no precedent, according to the petitioner, for this deviation, nor is there any compelling reason to make the present case an exception. Citing Cabagnot v. Commission on Elections (G.R. No. 124383, August 9, 1996) which involves a transfer or change of venue of the revision of ballots, the petitioner alleges that this Court has been very emphatic in denouncing the COMELEC for its departure from its own rules and usual practice; while Cabagnot involves the issue of change of venue, the petitioner finds parallel applicability in the present case which also involves a deviation from COMELEC rules and usual practice. The petitioner adds that the act of the Second Division is effectively an arrogation of the authority to promulgate rules of procedure a power that solely belongs to the COMELEC en banc. After a preliminary finding of a genuine due process issue, we issued a Status Quo Order on July 14, 2009. THE RESPONDENTS COMMENTS In his Comment to the Petition with Extremely Urgent Motion to Lift/Dissolve Status Quo Ante Order, the private respondent asserts that the petition contains deliberate falsehoods and misleading allegations that led the Court to grant the injunctive relief the petitioner had asked. He asserts that the "proceeding" the petitioner stated in his petition was actually the COMELECs decision-making process, i.e., the appreciation of ballots, which is a procedure internal to the Members of the Second Division of the COMELEC and their staff members; no revision of ballots took place as revision had long been finished. What was therefore undertaken within the SETs 437 Election Laws COMELEC
4
premises was unilateral COMELEC action that is exclusive to the COMELEC and an internal matter that is confidential in nature. In this light, no due process violation ever arose. The private respondent also asserts that the petitioner cannot claim that he was not notified of and denied participation in the revision proceedings, as the petitioner himself is fully aware that the revision of the ballots was completed as early as July 28, 2008 and the petitioner was present and actively participated in the entire proceedings, all the way to the filing of the required memoranda. Thus, the petitioners right to due process was duly satisfied. The private respondent implores us to commence contempt proceedings against the petitioner who, the respondent claims, has not been forthright in his submissions and was not guided by the highest standards of truthfulness, fair play and nobility in his conduct as a party and in his relations with the opposing party, the other counsel and the Court. Lastly, the private respondent posits that the present petition was filed out of time i.e., beyond the reglementary period provided under Rule 64. All these reasons, the private respondent argues, constitute sufficient basis for the lifting of the status quo order and the dismissal of the petition. Public respondent COMELEC, for its part, claims that the petition is without basis in fact and in law and ought to be dismissed outright. Given the possibility of simultaneous election contests involving national and local officials, it has institutionalized an order of preference in the custody and revision of ballots in contested ballot boxes. The established order of preference is not without exception, as the expeditious disposition of protest cases is a primary concern. Additionally, the order of preference does not prevent the COMELEC from proceeding with pending protest cases, particularly those already submitted for decision. It claims that it has wide latitude to employ means to effectively perform its duty in safeguarding the sanctity of the elections and the integrity of the ballot. The COMELEC further argues that in the absence of a specific rule on whether it can conduct appreciation of ballots outside its premises or official custody, the issue boils down to one of discretion the authority of the COMELEC to control as it deems fit the processes or incidents of a pending election protest. Under Section 4 of the COMELEC Rules of Procedure, the COMELEC may use all auxiliary writs, processes and other means to carry into effect its powers or jurisdiction; if the procedure to be followed in the exercise of such power or jurisdiction is not specifically provided for by law or the Rules of Procedure, any suitable process or proceeding not prohibited by law or by its rules may be adopted. The COMELEC lastly submits that while due process requires giving the parties an opportunity to intervene in all stages of the proceedings, the COMELEC in the present case is not actually conducting further proceedings requiring notice to the parties; there is no revision or correction of the ballots, as the election protest had already been submitted for resolution. When the COMELEC coordinated with the SET, it was simply for purposes of resolving the submitted provincial election contest before it; the parties do not take part in this aspect of the case which necessarily requires utmost secrecy. On the whole, the petitioner was afforded every opportunity to present his case. To now hold the election protest hostage until the conclusion of the protest pending before the SET defeats the COMELECs mandate of ensuring free, orderly and honest election. THE COURTS RULING We review the present petition on the basis of the combined application of Rules 64 and 65 of the Rules of Court. While COMELEC jurisdiction over the Bulacan election contest is not disputed, the legality of subsequent COMELEC action is assailed for having been undertaken with grave abuse of discretion amounting to lack or excess of jurisdiction. Thus, our standard of review is "grave abuse of discretion," a term that defies exact definition, but generally 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 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 6 manner by reason of passion and hostility." Mere abuse of discretion is not enough; the abuse must be grave to merit our positive 7 action. After due consideration, we find the petition devoid of merit. The petition is anchored on the alleged conduct of proceedings in the election protest following the completed revision of ballots at the SET premises without notice to and without the participation of the petitioner. Significantly, "the conduct of proceedings" is 8 confirmed by the SET Secretary in the letter we quoted above. As the issues raised show the petitioners focus is not really on the COMELEC Orders denying the suspension of proceedings when the ballot boxes and other election materials pertinent to the election contest were transferred to the SET; the focus is on what the COMELEC did after to the issuance of the Resolutions. We read the 9 petition in this context as these COMELEC Orders are now unassailable as the period to challenge them has long passed. The substantive issue we are primarily called upon to resolve is whether there were proceedings within the SET premises, entitling the petitioner to notice and participation, which were denied to him; in other words, the issue is whether the petitioners right to due process has been violated. A finding of due process violation, because of the inherent arbitrariness it carries, necessarily amounts to grave abuse of discretion. 438 Election Laws COMELEC
As a preliminary matter, we note that the petitioner has claimed that COMELEC exercises judicial power in its action over provincial election contests and has argued its due process position from this view. We take this opportunity to clarify that judicial power in our 10 country is "vested in one Supreme Court and in such lower courts as may be established by law." This exclusive grant of authority to the Judiciary is reinforced under the second paragraph of Section 1, Article VIII of the Constitution which further states that "Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable.. .," thus constitutionally locating the situs of the exercise of judicial power in the courts. In contrast with the above definitions, Section 2, Article IX(C) of the Constitution lists the COMELECs powers and functions, among others, as follows: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay officials shall be final, executory, and not appealable. (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. Under these terms, the COMELEC under our governmental structure is a constitutional administrative agency and its powers are 11 essentially executive in nature (i.e., to enforce and administer election laws), quasi-judicial (to exercise original jurisdiction over election contests of regional, provincial and city officials and appellate jurisdiction over election contests of other lower ranking officials), and quasi-legislative (rulemaking on all questions affecting elections and the promulgation of its rules of procedure). Historically, the COMELEC has always been an administrative agency whose powers have been increased from the 1935 Constitution to the present one, to reflect the countrys awareness of the need to provide greater regulation and protection to our electoral processes to ensure their integrity. In the 1935 Constitution, the powers and functions of the COMELEC were defined as follows: SECTION 2. The Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative questions affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials. All law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest election. The decisions, orders, and rulings of the Commission shall be subject to review by the Supreme Court. [emphasis supplied] These evolved into the following powers and functions under the 1973 Constitution: (1) Enforce and administer all laws relative to the conduct of elections. (2) Be the sole judge of all contests relating to the elections, returns, and qualifications of all members of the National Assembly and elective provincial and city officials. (3) Decide, save those involving the right to vote, administrative questions affecting elections, including the determination of the number and location of polling places, the appointment of election officials and inspectors, and the registration of voters. These powers have been enhanced in scope and details under the 1987 Constitution, but retained all the while the character of an administrative agency. The COMELECs adjudicative function is quasi-judicial since it is a constitutional body, other than a court, vested with authority to decide election contests, and in the course of the exercise of its jurisdiction, to hold hearings and exercise discretion of a judicial 12 nature; it receives evidence, ascertain the facts from these submissions, determine the law and the legal rights of the parties, and on 13 the basis of all these decides on the merits of the case and renders judgment. Despite the exercise of discretion that is essentially judicial in character, particularly with respect to election contests, COMELEC is not a tribunal within the judicial branch of government 14 and is not a court exercising judicial power in the constitutional sense; hence, its adjudicative function, exercised as it is in the course of administration and enforcement, is quasi-judicial.
439
As will be seen on close examination, the 1973 Constitution used the unique wording that the COMELEC shall "be the sole judge of all contests," thus giving the appearance that judicial power had been conferred. This phraseology, however, was changed in the 1987 Constitution to give the COMELEC "exclusive jurisdiction over all contests," thus removing any vestige of exercising its adjudicatory 15 power as a court and correctly aligning it with what it is a quasi-judicial body. Consistent with the characterization of its adjudicatory power as quasi-judicial, the judicial review of COMELEC en banc decisions (together with the review of Civil Service Commission decisions) is via the prerogative writ of certiorari, not through an appeal, as the traditional mode of review of quasi-judicial decisions of administrative tribunals in the exercise the Courts supervisory authority. This means that the Court will not supplant the decision of the COMELEC as a quasi-judicial body except where a grave abuse of discretion or any other jurisdictional error exists. The appropriate due process standards that apply to the COMELEC, as an administrative or quasi-judicial tribunal, are those outlined in 16 the seminal case of Ang Tibay v. Court of Industrial Relations, quoted below: (1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. xxx (2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, a place when directly attached. (4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be "substantial." "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. (7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it. These are now commonly referred to as cardinal primary rights in administrative proceedings. The first of the enumerated rights pertain to the substantive rights of a party at hearing stage of the proceedings. The essence of this aspect of due process, we have consistently held, is simply the opportunity to be heard, or as applied to administrative proceedings, an 17 opportunity to explain ones side or an opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at all times and in all instances essential; in the case of COMELEC, Rule 17 of its Rules of Procedure defines the requirements for a hearing and these serve as the standards in the determination of the presence or denial of due process. The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are reinforcements of the right to a hearing and are the inviolable rights applicable at the deliberative stage, as the decision-maker decides on the evidence presented during the hearing. These standards set forth the guiding considerations in deliberating on the case and are the material and substantial components of decision-making. Briefly, the tribunal must consider the totality of the evidence presented which must all be found in the records of the case (i.e., those presented or submitted by the parties); the conclusion, reached by the decision-maker himself and not by a 18 subordinate, must be based on substantial evidence. Finally, the last requirement, relating to the form and substance of the decision of a quasi-judicial body, further complements the hearing and decision-making due process rights and is similar in substance to the constitutional requirement that a decision of a court 19 must state distinctly the facts and the law upon which it is based. As a component of the rule of fairness that underlies due process, this is the "duty to give reason" to enable the affected person to understand how the rule of fairness has been administered in his case, to expose the reason to public scrutiny and criticism, and to ensure that the decision will be thought through by the decision-maker. In the present case, the petitioner invokes both the due process component rights at the hearing and deliberative stages and alleges that these component rights have all been violated. We discuss all these allegations below. The Right to Notice and to be Heard. 440 Election Laws COMELEC
a. At the Hearing and Revision of Ballots. Based on the pleadings filed, we see no factual and legal basis for the petitioner to complain of denial of his hearing stage rights. In the first place, he does not dispute that he fully participated in the proceedings of the election protest until the case was deemed submitted for resolution; he had representation at the revision of the ballots, duly presented his evidence, and summed up his case through a memorandum. These various phases of the proceedings constitute the hearing proper of the election contest and the COMELEC has more than satisfied the opportunity to be heard that the Ang Tibay hearing stage rights require. In these proceedings, the petitioner stood head-to-head with the respondent in an adversarial contest where both sides were given their respective rights to speak, make their presentations, and controvert each others submission, subject only to established COMELEC rules of procedures. Under these undisputed facts, both parties had their day in court, so to speak, and neither one can complain of any denial of notice or of the right to be heard. b. At the "Proceedings" at the SET. A critical question to be answered in passing upon due process questions at this stage of the election contest is the nature of the so-called "proceedings" after the ballots and other materials pertinent to the provincial election contest were transferred to the SET. In the petition, the petitioner alleged that there were "strange proceedings" which were "unilateral, clandestine and surreptitious" within the premises of the SET, on "documents, ballots and election materials whose possession and custody have been transferred" to 21 the SET, and the "petitioner was NEVER OFFICIALLY NOTIFIED of the strange on-goings" at the SET. Attached to the petition was the letter of the Secretary of the SET confirming the "conduct of proceedings" in the provincial election contest, and citing as basis the authority of Acting SET Chairman, Justice Antonio T. Carpio, upon the formal request of the Office of Commissioner Lucenito N. Tagle, and citing Section 3, COMELEC Resolution No. 2812 dated 17 October 1995 on the coordination envisioned among the COMELEC, the SET and the courts "so as not to delay or interrupt the revision of ballots being conducted." While the SET letter made the reservation that "While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of other proceedings in local election protest cases within its premises as may be requested," no mention whatsoever was made of the kind of proceedings taking place. It was at this point that this Court intervened, in response to the petitioners prayer for the issuance of temporary injunctive relief, through the issuance of a Status Quo Order with a non-extendible directive for the respondents to file their comments on the petition; for indeed, any further revision of ballots or other adversarial proceedings after the case has been submitted for resolution, would not only be strange and unusual but would indicate a gross violation of due process rights. After consideration of the respondents Comments and the petitioners petition and Reply, we hold that the contested proceedings at the SET ("contested proceedings) are no longer part of the adversarial aspects of the election contest that would require notice of hearing and the participation of the parties. As the COMELEC stated in its Comment and without any contrary or disputing claim in the 22 petitioners Reply: "However, contrary to the claim of petitioner, public respondent in the appreciation of the contested ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting "further proceedings" requiring notice to the parties. There is no revision or correction of the ballots because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating with the SET, is simply resolving the submitted protest case before it. The parties necessarily take no part in said deliberation, which require utmost secrecy. Needless to state, the actual decision-making process is supposed to be conducted only by the designated members of the Second Division of the public respondent in strict confidentiality." In other words, what took place at the SET were the internal deliberations of the COMELEC, as a quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial election contest on the merits. These deliberations are no different 23 from judicial deliberations which are considered confidential and privileged. We find it significant that the private respondents Comment fully supported the COMELECs position and disavowed any participation in the contested proceeding the petitioner complained about. The petitioner, on the other hand, has not shown that the private respondent was ever present in any proceeding at the SET relating to the provincial election contest. To conclude, the rights to notice and to be heard are not material considerations in the COMELECs handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC has been conducted at the SET that would require notice and hearing because of the possibility of prejudice to the other party. The COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of deliberating on the merits of the provincial election contest. In the context of our standard of review for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation of ballots this deliberation entailed. Alleged Violations of 441 Election Laws COMELEC
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Deliberation Stage Rights. On the basis of the above conclusion, we see no point in discussing any alleged violation of the deliberative stage rights. First, no illegal proceeding ever took place that would bear the "poisonous fruits" that the petitioner fears. Secondly, in the absence of the results of the COMELEC deliberations through its decision on the election protest, no basis exists to apply the Ang Tibay deliberative stage rights; there is nothing for us to test under the standards of the due process deliberative stages rights before the COMELEC renders its decision. Expressed in terms of our standard of review, we have as yet no basis to determine the existence of any grave abuse of discretion. Conduct of COMELEC Deliberations at the SET Premises We turn to the issue of the propriety of the COMELECs consideration of the provincial election contest (specifically its appreciation of the contested ballots) at the SET premises and while the same ballots are also under consideration by the SET for another election contest legitimately within the SETs own jurisdiction. We state at the outset that the COMELEC did not lose jurisdiction over the provincial election contest, as the petitioner seems to imply, because of the transmittal of the provincial ballot boxes and other election materials to the SET. The Constitution conferred upon the COMELEC jurisdiction over election protests involving provincial officials. The COMELEC in this case has lawfully acquired jurisdiction over the subject matter, i.e., the provincial election contest, as well as over the parties. After its jurisdiction attached, this jurisdiction cannot be ousted by subsequent events such as the temporary transfer of evidence and material records of the proceedings to another tribunal exercising its own jurisdiction over another election contest pursuant to the Constitution. This is the rule of adherence of 24 jurisdiction. Thus, the jurisdiction of the COMELEC over provincial election contest exists side by side with the jurisdiction of the Senate Electoral Tribunal, with each tribunal being supreme in their respective areas of concern (the Senate election contests for the SET, and the regional, provincial and city election contests for the COMELEC), and with neither one being higher than the other in terms of precedence so that the jurisdiction of one must yield to the other. But while no precedence in jurisdiction exists, the COMELEC, vowing to the reality that only a single ballot exists in an election for national and local officials, saw it fit to lay down the rule on the "order of preference in the custody and revision of ballots and other documents contained in the ballot boxes." The order, in terms of the adjudicatory tribunal and as provided in COMELEC Resolution No. 2812, runs: 1. Presidential Electoral Tribunal; 2. Senate Electoral Tribunal; 3. House of Representatives Electoral Tribunal; 4. Commission on Elections; and 5. Regional Trial Courts. This order of preference dictated that the ballot boxes and other election materials in Bulacans provincial election contest, had to be transferred to the SET when the latter needed these materials for its revision of ballots. The transfer to the SET, however, did not mean that the Bulacan provincial election contest at that time already submitted for decision had to be suspended as the COMELEC held 25 in its Orders of 29 April 2009 and 26 May 2009 in EPC No. 2007-44. This is particularly true in Bulacans case as no revision had to be undertaken, the revision having been already terminated. With the COMELEC retaining its jurisdiction over the Bulacan provincial election contest, the legal effect of the physical transfer of the ballots and other election materials to the SET for purposes of its own revision becomes a non-issue, given the arrangement between the COMELEC and the SET, pursuant to COMELEC Resolution No. 2812, to "coordinate and make arrangements with each other so as not to delay or interrupt the revision of ballots being conducted," all for the purpose of the expeditious disposition of their respective protest cases. The SET itself honored this arrangement as shown by the letter of the SET Secretary that the COMELEC could "conduct 26 proceedings" within the Tribunal premises as authorized by the Acting Chairman of the Tribunal, Justice Antonio T. Carpio. This arrangement recognized the COMELECs effective authority over the Bulacan ballots and other election materials, although these were temporarily located at the SET premises. This arrangement, too, together with the side by side and non-conflicting existence of the COMELEC and SET jurisdictions, negate the validity of the petitioners argument that the COMELEC transgressed the rule on separation of powers when it acted on the Bulacan provincial election contest while the ballot boxes were at the SET premises. Rather than negate, this arrangement reinforced the separate but co-existing nature of these tribunals respective jurisdictions.1avvphi1 442 Election Laws COMELEC
As the petitioner argues and the COMELEC candidly admits, "there is no specific rule which allows the COMELEC to conduct an 27 appreciation of ballots outside its premises and of those which are outside its own custody." But while this is true, there is likewise nothing to prohibit the COMELEC from undertaking the appreciation of ballot side by side with the SETs own revision of ballots for the senatorial votes, in light especially of the COMELECs general authority to adopt means to effect its powers and jurisdiction under its Rules of Procedure. Section 4 of these Rules states: Sec. 4. Means to Effect Jurisdiction. - All auxiliary writs, processes and other means necessary to carry into effect its powers or jurisdiction may be employed by the Commission; and if the procedure to be followed in the exercise of such power or jurisdiction is not specifically provided for by law or these rules, any suitable process or proceeding may be adopted. This rule is by no means unusual and unique to the COMELEC as the courts have the benefit of this same type of rule under Section 6, Rule 136 of the Rules of Court. The courts own rule provides: Means to Carry Jurisdiction into Effect. When by law jurisdiction is conferred o n a court or judicial officer, all auxiliary writs, writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules. Incidentally, the COMELEC authority to promulgate the above rule enjoys constitutional moorings; in the grant to the COMELEC of its jurisdiction, the Constitution provided it with the accompanying authority to promulgate its own rules concerning pleadings and practice 28 before it or before any of its offices, provided that these rules shall not diminish, increase or modify substantive rights. The Constitution additionally requires that the rules of procedure that the COMELEC will promulgate must expedite the disposition of 29 election cases, including pre-proclamation controversies. This constitutional standard is authority, no less, that the COMELEC can cite in defending its action. For ultimately, the appreciation of the Bulacan ballots that the COMELEC undertook side by side with the SETs own revision of ballots, constitutes an exercise of discretion made under the authority of the above-cited COMELEC rule of procedure. On the basis of the standards set by Section 4 of the COMELEC Rules of Procedure, and of the Constitution itself in the handling of election cases, we rule that the COMELEC action is a valid exercise of discretion as it is a suitable and reasonable process within the exercise of its jurisdiction over provincial election contests, aimed at expediting the disposition of this case, and with no adverse, prejudicial or discriminatory effects on the parties to the contest that would render the rule unreasonable. Since the COMELEC action, taken by its Second Division, is authorized under the COMELEC Rules of Procedure, the Second Division cannot in any sense be said to be intruding into the COMELEC en banc rule-making prerogative when the Second Division chose to undertake ballot appreciation within the SET premises side by side with the SET revision of ballots. To be exact, the Second Division never laid down any new rule; it merely acted pursuant to a rule that the COMELEC en banc itself had previously enacted. In light of these conclusions, we need not discuss the other issues raised. WHEREFORE, premises considered, we DISMISS the petition for certiorari for lack of merit. We accordingly LIFT the STATUS QUO ORDER we issued, effective immediately. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 89604 April 20, 1990 ROQUE FLORES, petitioner, vs. COMMISSION ON ELECTIONS , NOBELITO RAPISORA, respondents. Felix B. Claustro for petitioner. Romeo B. Astudillo for private respondent.
CRUZ, J.: Petitioner Roque Flores was proclaimed by the board of canvassers as having received the highest number of votes for kagawad in the elections held on 28 March 1989, in Barangay Poblacion, Tayum, Abra, and thus became punong barangay in accordance with Section 5 of Rep. Act No. 6679, providing in part as follows Sec. 5. There shall be a sangguniang barangay in every duly constituted barangay which shall be the legislative body and shall be composed of seven (7) kagawads to be elected by the registered voters of the barangay. The candidate who obtains the highest number of votes shall be the punong barangay . . . . However, his election was protested by Nobelito Rapisora, herein private respondent, who placed second in the election with 463 votes, or one vote less than the petitioner. The Municipal Circuit Trial Court of Tayum, Abra, sustained Rapisora and installed him as punong 1 barangay in place of the petitioner after deducting two votes as stray from the latter's total. Flores appealed to the Regional Trial Court of Abra, which affirmed the challenged decision in toto. Judge Francisco O. Villarta, Jr. agreed that the four votes cast for "Flores" only, without any distinguishing first name or initial, should all have been considered invalid instead of being divided equally between the petitioner and Anastacio Flores, another candidate for kagawad. The judge held that the 2 original total credited to the petitioner was correctly reduced by 2, to 462, demoting him to second place. The petitioner then went to the Commission on Elections, but his appeal was dismissed on the ground that the public respondent had 3 no power to review the decision of the regional trial court. This ruling, embodied in its resolution dated 3 August 1989, was presumably based on Section 9 of Rep. Act No. 6679, which was quoted therein in full as follows: Sec. 9. A sworn petition contesting the election of a barangay official may be filed with the proper municipal or metropolitan trial court by any candidate who has duly filed a certificate of candidacy and has been voted for a barangay office within ten (10) days after the proclamation of the result of the election. The trial court shall decide the election protest within (30) days after the filing thereof. The decision of the municipal or metropolitan trial court may be appealed within ten (10) days from receipt of a copy thereof by the aggrieved party to the regional trial court which shall decide the issue within thirty (30) days from receipt of the appeal and whose decision on questions of fact shall be final and non-appealable. For purposes of the barangay elections, no pre-proclamation cases shall be allowed. In this petition for certiorari, the Commission on Elections is faulted for not taking cognizance of the petitioner's appeal and for not ruling that all the four questioned votes should have been credited to him under the equity of the incumbent rule in Section 211(2) of the Omnibus Election Code. The Commission on Elections was obviously of the opinion that it could not entertain the petitioner's appeal because of the provision in Rep. Act No. 6679 that the decision of the regional trial court in a protest appealed to it from the municipal trial court in barangay elections "on questions of fact shall be final and non-appealable." While supporting the dismissal of the appeal, the Solicitor General justifies this action on an entirely different and more significant ground, to wit, Article IX-C, Section 2(2) of the Constitution, providing that the Commission on Elections shall:
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(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. (Emphasis supplied.) Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. His submission is that municipal or metropolitan courts being courts of limited jurisdiction, their decisions in barangay election contests are subject to the exclusive appellate jurisdiction of the Commission on Elections under the afore-quoted section. Hence, the decision rendered by the Municipal Circuit Trial Court of Tayum, Abra, should have been appealed directly to the Commission on Elections and not to the Regional Trial Court of Abra. It is recalled that in the case of Luison v. Garcia, respondent Garcia's certificate of candidacy was declared invalid by the Commission on Elections for non-compliance with the statutory requirements. What he did was appeal to the court of first instance, which held that the certificate was merely defective but not altogether null and void. Garcia continued his candidacy on the strength of this ruling and was subsequently proclaimed elected, thereafter assuming office as municipal mayor. In sustaining the quo warranto petition filed against him by Luison, this Court declared that all the votes cast for Garcia should have been rejected as stray because he did not have a valid certificate of candidacy. The action of the Commission on Elections should have been appealed not to the court of first instance but to the Supreme Court as required by the 1935 Constitution. Since this was not done, the resolution of the Commission on Elections rejecting Garcia's certificate remained valid on the date of the election and rendered all votes cast for him as stray. The doctrine in that case, although laid down under the 1935 Constitution, is still controlling under the present charter as the interpretation by this Court of Article IX-C, Section 2(2). Accordingly, Section 9 of Rep. Act No. 6679, insofar as it provides that the decision of the municipal or metropolitan court in a barangay election case should be appealed to the regional trial court, must be declared unconstitutional. We make this declaration even if the law has not been squarely and properly challenged by the petitioner. Ordinarily, the Court requires 5 compliance with the requisites of a judicial inquiry into a constitutional question. In the case at bar, however, we feel there is no point in waiting to resolve the issue now already before us until it is raised anew, probably only in the next barangay elections. The time to resolve it is now, before such elections. We shall therefore disregard the technical obstacles in the case at bar so that the flaw in Rep. Act No. 6679 may be brought to the attention of Congress and the constitutional defect in Section 9 may be corrected. In taking this step, the Court does not disregard the fact that the petitioner was only acting in accordance with the said law when he appealed the decision of the Municipal Circuit Trial Court of Tayum to the Regional Trial Court of Abra. That is what the statute specifically directed in its Section 9 which, at the time the appeal was made, was considered constitutional. The petitioner had a light to rely on its presumed validity as everyone apparently did. Even the Congress and the Executive were satisfied that the measure was constitutional when they separately approved it after careful study. Indeed, no challenge to its validity had been lodged or even hinted not even by the public respondent as to suggest to the petitioner that he was following the wrong procedure. In fairness to him therefore, we shall consider his appeal to the Commission on Elections as having been made directly from the Municipal Circuit Trial Court of Tayum, Abra, disregarding the detour to the Regional Trial Court. Accordingly, we hold that the petitioner's appeal was validly made to the Commission on Elections under its "exclusive appellate jurisdiction over all contests. . . involving elective barangay officials decided by trial courts of limited jurisdiction." Its decision was in turn also properly elevated to us pursuant to Article IX-A, Section 7, of the Constitution, stating that "unless otherwise provided by this Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." Obviously, the provision of Article IX-C, Section 2(2) of the Constitution that "decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable" applies only to questions of fact and not of law. That provision was not intended to divest the Supreme Court of its authority to resolve questions of law 6 as inherent in the judicial power conferred upon it by the Constitution. We eschew a literal reading of that provision that would contradict such authority. The issue the petitioner was raising was one of law, viz., whether he was entitled to the benefits of the equity-of-the-incumbent rule, and so subject to our review. This issue was not resolved by the public respondent because it apparently believed itself to be without appellate jurisdiction over the decision of the Regional Trial Court of Abra. Considering that the public respondent has already manifested its position on this issue, as will appear presently, the Court will now rule upon it directly instead of adopting the round-about way of remanding the case to the Commission on Elections before its decision is elevated to this Court.
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Implementing Rep. Act No. 6679, the Commission on Elections promulgated Resolution No. 2022-A providing in Section 16(3) thereof that: Incumbent Barangay Captains, whether elected, appointed or designated shall be deemed resigned as such upon the filing of their certificates of candidacy for the office of "Kagawad," which is another office, for the March 28, 1989 barangay election. This was the reason why the Municipal Circuit Trial Court of Tayum, Abra, held that the four questioned votes cast for Flores could not 7 be credited to either Roque Flores or Anastacio Flores and should have been regarded as stray under Section 211(1) of the Omnibus Election Code. Rejecting the petitioner's claim, the court held that Roque Flores was not entitled to any of the four contested votes because he was not incumbent as punong barangay (or barangay captain, as the office was formerly called) on the date of the election. The petitioner insists on the application to him of Section 211(2) of the Code, stating pertinently that: 2. . . . If there are two or more candidates with the same full name, first name or surname and one of them is the incumbent, and on the ballot is written only such full name, first name or surname, the vote shall be counted in favor of the incumbent. because he should not have been considered resigned but continued to be entitled to the office of punong barangay under Section 8 of Rep. Act No. 6679, providing as follows: Sec. 8. Incumbent elective officials running for the same office shall not be considered resigned upon the filing of then, certificates of candidacy. They shall continue to hold office until their successors shall have been elected and qualified. The petitioner contends that the afore-quoted administrative regulation is inofficious because the forfeiture prescribed is not authorized by the statute itself and beyond the intentions of the legislature. Moreover, the enforcement of the rule would lead to discrimination against the punong barangay and in favor of the other kagawads, who, unlike him, could remain in office while running for re-election and, additionally, benefit from the equity-of-the-incumbent rule. Alternatively, the petitioner argues that, assuming the regulation to be valid he was nonetheless basically also a kagawad as he was a member of the sangguniang barangay like the other six councilmen elected with him in 1982. In fact, Section 5 of the Rep. Act No. 6679 also speaks of seven kagawads, the foremost of whom shall again be the punong barangay. He concludes that he should thus be regarded as running for the same office and therefore not considered resigned when he filed his certificate of candidacy for kagawad. The Court does not agree. It seems to us that the challenged resolution quite clearly expresses the mandate of the above-quoted Section 8 that all incumbent elected officials should not be considered resigned upon the filing of their certificates of candidacy as long as they were running for the same position. The purpose of the resolution was merely to implement this intention, which was clearly applicable not only to the ordinary members of the sangguniang barangay but also to the punong barangay. As for the questioned authority, this is found in Section 52 of the Omnibus Election Code, which empowers the public respondent to "promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to enforce and administer. . . ." The justification given by the resolution is that the position of punong barangay is different from that of kagawad as in fact it is. There should be no question that the punong barangay is an essentially executive officer, as the enumeration of his functions in Se ction 88 of the Local Government Code will readily show, unlike the kagawad, who is vested with mainly legislative functions (although he does assist the punong barangay in the administration of the barangay). Under Rep. Act No. 6679, the person who wins the highest number of votes as a kagawad becomes by operation of law the punong barangay, or the executive of the political unit. In the particular case of the petitioner, it should be noted that he was in fact not even elected in 1982 as one of the six councilmen but separately as the barangay captain. He was thus correctly deemed resigned upon his filing of a certificate of candidacy for kagawad in 1989, as this was not the position he was holding, or was incumbent in, at the time he filed such certificate. It is worth stressing that under the original procedure followed in the 1982 barangay elections, the petitioner was elected barangay captain directly by the voters, separately from the candidates running for mere membership in the sangguniang barangay. The offices of the barangay captain and councilmen were both open to the candidates, but they could run only for one or the other position and not simultaneously for both. By contrast, the candidate under the present law may aspire for both offices, but can run only for one, to wit, that of kagawad. While campaigning for this position, he may hope and actually strive to win the highest number of votes as this would 446 Election Laws COMELEC
automatically make him the punong barangay. In this sense, it may be said that he is a candidate for both offices. Strictly speaking, however, the only office for which he may run and for which a certificate of candidacy may be admitted is that of kagawad. It follows that the petitioner cannot insist that he was running not for kagawad only but ultimately also for punong barangay in the 28 March 1989 election. In fact, his certificate of candidacy was for kagawad and not for punong barangay. As the basic position being disputed in the barangay election was that of kagawad, that of punong barangay being conferred only by operation of law on the candidate placing first, the petitioner had to forfeit his position of punong barangay, which he was holding when he presented his candidacy for kagawad. Consequently, he cannot be credited with the four contested votes for Flores on the erroneous ground that he was still incumbent as punong barangay on the day of the election. The petitioner argues that he could not have run for reelection as punong barangay because the office was no longer subject to separate or even direct election by the voters. That may be so, but this argument goes to the wisdom of the law, not its validity, and is better addressed to the legislature. From the strictly legal viewpoint, the statute does not offend the equal protection clause, as there are, to repeat, substantial distinctions between the offices of punong barangay and kagawad. Precisely , the reason for divesting the punong barangay of his position was to place him on the same footing as the other candidates by removing the advantages he would enjoy if he were to continue as punong barangay while running for kagawad. In sum, we hold that Section 9 of Rep. Act No. 6679 is constitutionally defective and must be struck down, but the challenged resolution must be sustained as a reasonable and valid implementation of the said statute. The petitioner was no longer the incumbent punong barangay on election day and so was not entitled to the benefits of the equity-of-the-incumbent rule. The consequence is that the four votes claimed by him were correctly considered stray, making the private respondent the punong barangay of Poblacion, Tayum, Abra, for having received the highest number of votes for kagawad. It remains to stress that although the elections involved herein pertain to the lowest level of our political organization, this fact has not deterred the highest tribunal from taking cognizance of this case and discussing it at length in this opinion. This only goes to show that as long as a constitutional issue is at stake, even the barangay and its officers, for all their humility in the political hierarchy, deserve and will get the full attention of this Court. WHEREFORE, the petition is DISMISSED. Judgment is hereby rendered: 1. Declaring Section 9 of Rep. Act No. 6679 UNCONSTITUTIONAL insofar as it provides that barangay election contests decided by the municipal or metropolitan trial court shall be appealable to the regional trial court; 2. Declaring valid Section 16(3) of Com. Res. No. 2022-A dated January 5, 1989; and 3. Declaring private respondent Nobelito Rapisora the duly elected punong barangay of Poblacion, Tayum, Abra. No pronouncement as to costs. SO ORDERED.
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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION
G.R. No. 114795 July 17, 1996 LUCITA Q. GARCES, petitioner, vs. THE HONORABLE COURT OF APPEALS, SALVADOR EMPEYNADO and CLAUDIO CONCEPCION, respondents. RESOLUTION
FRANCISCO, J.:p Questioned in this petition for review is the decision of the Court of Appeals (CA), as well as its resolution, which affirmed the 3 decision of the Regional Trial Court (RTC) of Zamboanga del Norte in dismissing a petition for mandamus against a Provincial Election Supervisor and an incumbent Election Registrar. The undisputed facts are as follows: Petitioner Lucita Garces was appointed Election Registrar of Gutalac, Zamboanga del Norte on July 27, 1986. She was to replac e 4 respondent Election Registrar Claudio Concepcion who, in turn, was transferred to Liloy, Zamboanga del Norte. Correspondingly 5 approved by the Civil Service Commission, both appointments were to take effect upon assumption of office. Concepcion, however, 6 refused to transfer post as he did not request for it. Garces, on the other hand, was directed by the Office of Assistant Director for 7 Operations to assume the Gutalac post. But she was not able to do so because of a Memorandum issued by respondent Provincial 8 Election Supervisor Salvador Empeynado that prohibited her from assuming office in Gutalac as the same is not vacant. On February 24, 1987, Garces was directed by the same Office of Assistant Director to defer her assumption of the Gutalac post. On April 15, 1987, she received a letter from the Acting Manager, Finance Service Department, with an enclosed check to cover for the expenses on construction of polling booths. It was addressed "Mrs. Lucita Garces E.R. Gutalac, Zamboanga del Norte" which Garces 9 interpreted to mean as superseding the deferment order. Meanwhile, since respondent Concepcion continued occupying the Gutalac 10 office, the COMELEC en banc cancelled his appointment to Liloy. On February 26, 1988, Garces filed before the RTC a petition for mandamus with preliminary prohibitory and mandatory injunction and 11 damages against Empeynado and Concepcion, among others. Meantime, the COMELEC en banc through a Resolution dated June 12 3, 1988, resolved to recognize respondent Concepcion as the Election Registrar of Gutalac, and ordered that the appointments of 13 Garces to Gutalac and of Concepcion to Liloy be cancelled. In view thereof, respondent Empeynado moved to dismiss the petition for mandamus alleging that the same was rendered moot and academic by the said COMELEC Resolution, and that the case is cognizable only by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The RTC, thereafter, dismissed the petition for mandamus on 14 two grounds, viz., (1) that quo warranto is the proper remedy, and (2) that the "cases" or "matters" referred under the constitution pertain only to those involving the conduct of elections. On appeal, respondent CA affirmed the RTC's dismissal of the case. Hence, this petition The issues raised are purely legal. First, is petitioner's action for mandamus proper? And, second, is this case cognizable by the RTC or by the Supreme Court? On the first issue, Garces claims that she has a clear legal right to the Gutalac post which was deemed vacated at the time of her 15 appointment and qualification. Garces insists that the vacancy was created by Section 2, Article III of the Provisional Constitution. On the contrary, Concepcion posits that he did not vacate his Gutalac post as he did not accept the transfer to Liloy. Article III Section 2 of the Provisional Constitution provides: All elective and appointive officials and employees under the 1973 Constitution shall continue in the office until otherwise provided by proclamation or executive order or upon the designation or appointment and 448 Election Laws COMELEC
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qualification of their successors, if such is made within a period of one year from February 25, 1986. (Emphasis supplied). The above organic provision did not require any cause for removal of an appointive official under the 1973 Constitution. The 1 transition period from the old to the new Constitution envisioned an "automatic" vacancy; 7 hence the government is not hard 18 put to prove anything plainly and simply because the Constitution allows it. Mere appointment and qualification of the successor removes an incumbent from his post. Nevertheless, the government in an act of auto-limitation and to prevent indiscriminate dismissal of government personnel issued on May 28, 1986, Executive Order (E.O.) No. 17. This executive order, which applies in this case as it was passed prior to the issuance of Concepcion's transfer order, enumerates five grounds for separation or replacement of elective and appointive officials authorized under Article III, Section 2 of the Provisional Constitution, to wit: 1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law; 2. Existence of the probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the Ministry Head concerned; 3. Gross incompetence or inefficiency in the discharge of functions; 4. Misuse of public office for partisan political purposes; 5. Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement is in the interest of the service. Not one of these grounds was alleged to exist, much less proven by petitioner when respondent Concepcion was transferred 19 from Gutalac to Liloy. More, Concepcion was transferred without his consent. A transfer requires a prior appointment. If the 20 transfer was made without the consent of the official concerned, it is tantamount to removal without valid cause contrary to 21 the fundamental guarantee on non-removal except for cause. Concepcion's transfer thus becomes legally infirm and without effect for he was not validly terminated. His appointment to the Liloy post, in fact, was incomplete because he did not accept it. 22 Acceptance, it must be emphasized, it is indispensable to complete an appointment. Corollarily, Concepcion's post in Gutalac never became vacant. It is a basic precept in the law of public officers that "no person, no matter how qualified and 23 eligible he is for a certain position may be appointed to an office which is not vacant. There can be no appointment to a nonvacant position. The incumbent must first be legally removed, or his appointment validly terminated before one could be validly installed to succeed him. Further, Garces' appointment was ordered to be deferred by the COMELEC. The deferment order, we note, was not unequivocably lifted. Worse, her appointment to Gutalac was even cancelled by the COMELEC en banc. These factors negate Garces' claim for a well-defined, clear, certain legal right to the Gutalac post. On the contrary, her right to the said office is manifestly doubtful and highly questionable. As correctly ruled by respondent court, mandamus, which petitioner filed below, will not lie as this remedy applies only where petitioner's right is founded clearly in law and not when it is 24 25 doubtful. It will not issue to give him something to which he is not clearly and conclusively entitled. Considering that Concepcion continuously occupies the disputed position and exercises the corresponding functions therefor, the proper 26 remedy should have been quo warranto and not mandamus. Quo warranto tests the title to one's office claimed by another and has as its object the ouster of the holder from its enjoyment, while mandamus avails to enforce clear legal duties and not 2 to try disputed titles. 7 Garces' heavy reliance with the 1964 Tulawie case is misplaced for material and different factual considerations. Unlike in this case, the disputed office of "Assistant Provincial Agriculturist" in the case of Tulawie is clearly vacant and petitioner Tulawie's appointment was confirmed by the higher authorities making his claim to the disputed position clear and certain. Tulawie's petition for mandamus, moreover, was against the Provincial Agriculturist who never claimed title to the contested office. In this case, there was no vacancy in the Gutalac post and petitioner's appointment to which she could base her claim was revoked making her claim uncertain. Coming now to the second issue. The jurisdiction of the RTC was challenged by respondent Empeynado contending that this is a "case" or "matter" cognizable by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The COMELEC resolution cancelling the appointment of Garces as Election Registrar of Gutalac, he argues, should be raised only on certiorari before the Supreme Court and not before the RTC, else the latter court becomes a reviewer of an en banc COMELEC resolution contrary to Sec. 7, Art. IX-A. The contention is without merit. Sec. 7, Art. IX-A of the Constitution provides: 449 Election Laws COMELEC
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Each commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the commission or by the commission itself. Unless otherwise provided by this constitution or by law, any decision, order, or ruling of each commission may be brought to the supreme court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. This provision is inapplicable as there was no case or matter filed before the COMELEC. On the contrary, it was the COMELEC's resolution that triggered this controversy. The "case" or "matter" referred to by the constitution must be something within the jurisdiction of the COMELEC, i.e., it must pertain to an election dispute. The settled rule is that "decision, rulings, order" of the COMELEC that may be brought to the Supreme Court on certiorari under Sec. 7 Art. IX-A are those that 30 relate to the COMELEC's exercise of its adjudicatory or quasi-judicial powers involving "elective regional, provincial, and city 31 officials." In this case, what is being assailed is the COMELEC's choice of an appointee to occupy the Gutalac Post which is 32 an administrative duty done for the operational set-up of an agency. The controversy involves an appointive, not an elective, official. Hardly can this matter call for the certiorari jurisdiction of the Supreme Court. To rule otherwise would surely burden the Court with trivial administrative questions that are best ventilated before the RTC, a court which the law vests with the power to exercise original jurisdiction over "all cases not within the exclusive jurisdiction over of any court, tribunal, person or body exercising judicial or quasi-judicial 33 functions." WHEREFORE, premises considered, the petition for review is hereby DENIED without prejudice to the filing of the proper action with the appropriate body.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-60504 May 14, 1985 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS MELITON C. GERONIMO, petitioner vs. LT. FIDEL V. RAMOS IN HIS CAPACITY AS CHIEF OF THE CONSTABULARY AND THE COMMISSION ON ELECTIONS, respondents. G.R. No. L-60591 May 14, 1985 MELITON C. GERONIMO, petitioner, vs. JULIAN PENDRE, AND THE COMMISSION ON ELECTIONS, respondents. G.R. Nos. 60732-39 May 14, 1985 MELITON C. GERONIMO AND 75 OTHER PERSONS NAMED AS ACCUSED IN THE VARIOUS COMPLAINTS ATTACHED TO THIS PETITION, petitioners, vs. RICARDO E. JAVIER, AS MUNICIPAL CIRCUIT JUDGE OF BARAS, RIZAL and TERESA, RIZAL, SIMPLICIO C. PAGTALONAN ASSISTANT PROVINCIAL FISCAL OF RIZAL, FORTUNATO U. MALABANAN, INP Station COMMANDER of BARAS, RIZAL and THE PEOPLE OF THE PHILIPPINES, respondents.
GUTIERREZ, JR, J.: These interrelated petitions arose from the controversy over the mayoralty elections in 1980, wherein the petitioner who was elected to the post of mayor of Baras, Rizal was subsequently disqualified as a candidate for mayor by this Court's affirmance of the Commission on Elections' decision on the ground that he was a political turncoat. The controversy stemmed from the following uncontroverted facts: On January 8, 1980, private respondent Julian Pendre filed a petition with the Commission on Elections (COMELEC) to disqualify petitioner Meliton C. Geronimo from running as a candidate for the mayorship of Baras, Rizal on the ground of political turncoatism. After hearing the petition, the COMELEC on January 19. 1980 issued Resolution No. 8305 disqualifying Meliton C Geronimo. On January 22, 1980, Geronimo filed a motion to reconsider the said resolution, and on January 28, 1980 or two days before the elections, he filed with this Court a petition for certiorari to restrain the COMELEC from implementing its resolution. Or. the same day, this Court issued a temporary restraining order against the COMELEC. In the elections of January 30, 1980, Geronimo obtained a margin of 325 votes when he garnered 2,695 votes as against his opponent Bayani Ferrera's 2,370 votes. On March 11, 1980, the COMELEC issued Resolution No. 9554, reinstating the proclamation made earlier by the Municipal Board of Canvassers of Baras, Rizal in favor of Geronimo as the winning candidate for mayor but the proclamation was declared temporary subject to the decision of this Court on the petition for certiorari filed by Geronimo. On September 26, 1981, this Court rendered a decision in G.R. No. 52413, entitled "Meliton C. Geronimo v. Commission on Elections and Julian C. Pendre", dismissing the petition for certiorari and ordering the lifting of the restraining order of January 28, 1980. We ruled that Geronimo was disqualified to run as a candidate for mayor for being a political turncoat. The petitioner filed a motion for reconsideration but it was denied with finality on January 19, 1982.
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On February 15, 1982, the COMELEC issued the questioned resolution No. 82-428 which set aside the temporary proclamation of Geronimo "it appearing that the disqualification of said respondent Geronimo had been finally decided by the Supreme Court ..." and which further provided for the following: 1. To declare the certificate of candidacy of Meliton C. Geronimo for the position of Mayor in the January 30, 1980 elections null and void from the beginning; 2. To declare all votes cast for Meliton C. Geronimo for Mayor in the January 30, 1980 elections as "STRAY" votes; 3. To proclaim Bayani A. Ferrera, who garnered 2,370 votes, as the duly elected Mayor of Baras, Rizal in the January 30, 1980 elections: 4. To direct Meliton C. Geronimo to turn over to Bayani A. Ferrera the position and office of Municipal Mayor of Baras, Rizal. On February 15, 1982, Geronimo filed a motion to defer action which was denied by the COMELEC in Resolution No. 82429. On February 17, 1982, Geronimo filed a motion for reconsideration followed on March 18, 1982 by an urgent motion to set aside COMELEC Resolution Nos. 82-428 and 82- 429 with motion to enjoin Bayani Ferrera from exercising the functions of the mayor of Baras, Rizal. On March 22, 1982, the COMELEC denied Geronimo's motion for reconsideration. On May 3, 1982, the petitioner together with some of his political followers of more than fifty persons entered en masse the Municipal Hall of Baras, occupied its premises and continued to do so until May 13, 1982, causing a paralyzation of official business in the municipality. During this period, Ferrera held office in his own house. Parenthetically, Geronimo did not enter the office of the mayor but stayed in another room in the municipal building. On May 4, 1982, Pendre filed with the COMELEC a motion to cite and declare Geronimo in contempt. On May 10, Geronimo amended his urgent motion of March 18, 1982 and further moved to have the oath of office of Bayani A. Ferrera declared premature, ineffective, and void. On May 12, 1982, the COMELEC after hearing, issued Resolution No. 82-605, finding Geronimo guilty of contempt and sentencing him to suffer an imprisonment of five (5) months and to pay a fine of P1,000.00. In said resolution, the COMELEC simply "noted" Geronimo's urgent motion because of its previous denial of his motion for reconsideration. The amended urgent motion was likewise "noted", since it was declared a mere repetition of what was already decided by the COMELEC. At about 2:00 o'clock in the early morning of May 14, 1982, Geronimo and his followers, mostly women were forcibly taken out of the municipal hall of Baras, Rizal by the military with tile use of teargas grenades. Gun shots were also fired by the Philippine Constabulary. Some of Geronimo's followers retaliated with empty bottles when they heard the breaking of the glass windows of the room where Geronimo was staying. The petitioner was seized, handcuffed, and brought to the National Penitentiary in Muntinglupa, Rizal. Sometime between the months of April and May, 1982, a series of criminal charges were filed against Geronimo and his followers namely: Usurpation of Authority [Art. 177, Revised Penal Code (RPC)]; Violation of Usurpation of Authority of Official (sic) [Art. 177, Revised Penal Code (RPC)]; Tumultous Affray [Art. 153, RPC]: Sedition (Art. 139, RPC); Illegal Possession of Firearms; Disobedience to a Person in Authority or the Agent of such Person (Art. 151, RPC) and Alarm and Scandal (Art. 155, RPC). On May 19, 1982, Geronimo filed a petition for habeas corpus alleging that there is no legal basis for his arrest and detention since the COMELEC's resolution no. 82-605 holding him in contempt was issued with grave abuse of discretion and without jurisdiction. The petition was docketed as G.R. No. 60504. On May 27, 1982, this Court issued a resolution ordering the release of Geronimo on his own recognizance, pending the determination by this Court of the petition's merits. On May 31, 1982, Geronimo filed another petition docketed as G.R. No. 60591, seeking to annul and set aside COMELEC's resolution no. 82-605 declaring petitioner in contempt of the COMELEC and which also dismissed petitioner's motion to set aside COMELEC resolution nos. 82-428 and 82-429. The third petition was filed by Geronimo and seventy-five (75) others on June 16, 1982, docketed as G.R. Nos. 60732-39, seeking the dismissal of the criminal complaints earlier filed against them in the months of March, April and May, 1982. In the petition for the issuance of the writ of habeas corpus, Geronimo maintains that there is no legal basis for his detention. He contends that the resolution of the COMELEC ordering his detention was issued with grave abuse of discretion or without jurisdiction. Geronimo anchors his charge that COMELEC committed grave abuse of discretion on three grounds: (1) that the questioned resolution 452 Election Laws Fundamental Principle
was not properly promulgated; (2) that Ferrera did not acquire the plurality of votes for the mayorship of Baras; and (3) that Julian Pendre who filed the motion for contempt had no personality to institute the same because he did not file his candidacy for the position of mayor, of Baras, Rizal. Section 3, Rule 71 of the Rules of Court which governs contempt proceedings only requires(a) that a charge be made in writing and (b) that an opportunity be given to the accused to be heard by himself or counsel for certain acts enumerated in said rule, after which a person may be punished for contempt. As we held in Aguador v. Enerio (37 SCRA 164), "... there is no particular form prescribed by the Rules of Court in which a contempt charge shall be framed or described. There is also no requirement in the Rules of Court that a copy of the contempt charge shall be served on the respondent named therein when it is filed in court. All that Section 3, Rule 71 (formerly Rule 64) requires on this matter is that a charge in writing be filed. The respondent in a contempt proceeding is, of course, entitled to know the nature and cause of the accusation against him, but this requirement is properly satisfied when the court, after the respondent appears before it, reads to the respondent the complaint or furnishes him a copy thereof." Likewise, during the promulgation of the decision, the accused-respondent need not be present. It is enough that he is notified of the same either personally or by registered mail. Since the petitioner was duly notified of the charges against him and was given an opportunity to be heard, after which he was informed and shown a copy of the COMELEC resolution finding him guilty of contempt, there was sufficient compliance with the due process requirement in the contempt proceeding against him. The fact that Ferrera did not acquire the plurality of votes for the mayorship of Baras and the fact that Julian Pendre did not file his candidacy for the said position are both immaterial to the charge of contempt. What is important is whether or not the petitioner committed contumacious acts in utter disregard of the COMELEC resolution which was issued pursuant to the decision of this Court. The record shows that after hearing the petition filed by Juan C. Pendre, COMELEC issued Resolution No. 8305 disqualifying Meliton C. Geronimo for political turncoatism. The decision was based on Section 10, Article XII-C of the Constitution prior to its amendment in 1981 and on Presidential Decree No. 1661 and Batas Pambansa No. 52. As earlier stated, this decision of COMELEC was affirmed by this Court. Two motions for reconsideration were denied with finality and a third motion for reconsideration was no longer considered for deliberation but was merely noted. The regrettable defiance by the petitioner of a COMELEC decision affirmed by this Court and declared final is sufficient basis for the exercise of the contempt power. Nonetheless, we take certain factual considerations into account. The petitioner was acting under strong political pressures from his followers. His defiance of the COMELEC may have been based on an erroneous interpretation of the turncoatism provisions of the Constitution and statute as shown by our decision in G.R. No. 52413 dismissing Mr. Geronimo's petition. However, the emotional impulses which prodded him to act as he did must be understood in the light of his successful campaign for the mayorship and the happenstance that "turncoatism" was and remains a highly controversial and perplexing concept. As a matter of fact, the Constitution and the statute have been amended to allow political "turncoats" to run for member of the Batasang Pambansa in the last elections. There was no grave abuse of discretion on the part of respondent COMELEC when it held the petitioner guilty of contempt. However, we find the penalty of five (5) months imprisonment to be harsh. Time and again, this Court has held that the power to punish for contempt should be exercised on the preservative and not on the vindictive principle, on the corrective and not on the retaliatory Idea of punishment. (See Repeque v. Aquilizan, 130 SCRA 258; Lipata v. Tutaan, 124 SCRA 880, citing Gamboa v. Teodoro, 91 Phil. 270; and People v. Alarcon, 69 Phil. 265; Yangson v. Salandanan, 68 SCRA 43, Balasabas v. Aquilizan, 106 SCRA 502; and Sulit v. Tiangco, 115 SCRA 211-212). We rule, therefore, that the thirteen (13) days during which the petitioner was confined in the National Penitentiary at Muntinglupa, Rizal more than suffice for the purpose of serving his sentence for contempt. The second petition filed by Mr. Geronimo docketed as G.R. No. 60591, seeks to annul the same COMELEC Resolution No. 82-605, subject matter of the first petition for two reasons: (1) it declared petitioner guilty of contempt; and (2) it dismissed petitioner's urgent motion to set aside COMELEC Resolution Nos. 82-479 and 82-429 which, among others, proclaimed Ferrera as the winning candidate and directed herein petitioner to turn over to the former the position and office of the Municipal Mayor of Baras, Rizal. As we have already disposed of the issue of contempt in the first petition, we shall deal only with the other matter covered by the questioned resolution. The petitioner maintains that the COMELEC exceeded its power and jurisdiction when it proclaimed Bayani A. Ferrera as mayor of Baras, Rizal, in spite of the fact that he did not obtain the plurality of votes in the January 30, 1980 municipal elections. We find this contention impressed with merit. In the case of Yason v. Comelec (G.R. No. 52731, January 31, 1985.), we ruled that: In elections, the first consideration of every democratic polity is to give effect to the expressed will of the majority. It is true that constitutional and statutory provisions requiring compliance with measures intended to enhance the quality 453 Election Laws Fundamental Principle
of our democratic institutions must be obeyed. The restriction against turncoatism is one such measure. However, even as there should be compliance with the provision on turncoatism, an interpretation in particular cases which respects the free and untrammelled expression of the voters' choice must bee followed in its enforcement. The importance of the people's choice must be the paramount consideration in every election, for the Constitution has vested in them the right to freely select, by secret-ballot in clean elections, the men and women who shall make laws for them or govern in their name and behalf. The people have a natural and a constitutional right to participate directly in the form of government under which they live. Such a right is among the most important and sacred of the freedoms inherent in a democratic society and one which must be most vigilantly guarded if a people desires to maintain through self-government for themselves and their posterity a genuinely functioning democracy in which the individual may, in accordance with law, have a voice in the form of his government and in the choice of the people who will run that government for him. (See also U.S. v. Iturrius, 37 Phil. 765). Thus, it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared throu gh their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental Idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.) The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. This is particularly true where, as in this case, there is only one other candidate who ran for the public offic e. The votes for the deceased or non-qualified candidate are still expressive of a public clamor that the majority of the voters do not like the losing candidate to be their representative or to hold the reins of government for them. As early as 1912, this Court has already declared that the candidate who lost in an election cannot be proclaimed the winner in the event that the candidate who won is found ineligible for the office to which he was elected. This was the ruling in Topacio v. Paredes (23 Phil. 238) Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the election is quite different from that produced by declaring a person ineligible to hold such an office. ... 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. ... The result is a failure of elections for that particular office. The winning candidate is not qualified and cannot qualify for the office to which he was elected. A permanent vacancy is thus created. Section 48 of the Local Government Code, Batas Pambansa Big. 337, which provides: SEC. 48. Permanent Vacancy in the Office of the Governor, City or Municipal Mayor.. (l) In case a permanent vacancy arises when a governor, city or municipal mayor refuses to assume office, fails to qualify, dies or is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office, the vice-governor, city or municipal vice-mayor, as the case may be, shall assume the office for the unexpired term of the former. xxx xxx xxx merely reiterates the established and more democratic rule to meet the situation present in this case. It is, therefore, patent that the COMELEC committed a grave error when it proclaimed the defeated candidate, Bayani Ferrera, elected to the office of mayor. After the ineligibility of Geronimo had been ascertained and after his proclamation was set aside, the COMELEC should have proclaimed the vice-mayor as entitled to the office and not Ferrera who failed to obtain the plurality of votes in the election. Anent the third petition, G.R. Nos. 60732-39, petitioners maintain that the criminal charges filed against them are "excessive and harsh, obviously vindictive, harassing, intimidating and prosecuting, aimed primarily at discouraging and unnerving Meliton C. Geronimo from 454 Election Laws Fundamental Principle
asserting his right to the mayorship of Baras to which the electorate of Baras, many of whom are his co-accused in the many criminal suits pending against them, has elected him. It is an undisputed fact that all the criminal charges were the result of the events that transpired before and until the May 14,1982 incident, when Mr. Geronimo was forcibly taken out of the municipal building of Baras by the military. The charges were also filed almost successively: one on March 20; one on April 12; one on April 14; two on May 4, two on May 14, and one on May 19, and with the same court and presided over by the same judge. In one of the criminal complaints wherein about 75 people were charged, the warrants of arrest were issued on the same day that the preliminary examination was conducted. Such a hasty and manifestly haphazard manner of conducting the preliminary examination to determine probable cause for the issuance of the warrants of arrest and eventually for the filing of the necessary information cannot be sanctioned by this Court. A judge must first satisfy himself of the existence of probable cause before issuing a warrant or order of arrest. The requirements are strict. (See Placer v. Villanueva, 126 SCRA 463). The examination must be legitimate and not a feigned one intended to justify a course of action already predetermined. In the very recent case of Salonga v. Patio, et al, (G.R. No. 59924, February 18, 1985) we had occasion to underscore the importance and purpose of a preliminary investigation and how it should be conducted if it is to conform with the paramount requirements of due process. In that case we ruled: The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasan, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shag not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold ... Similar caution is warranted for the issuance of warrants of arrest. In the case at bar and especially considering the background circumstances which led to the filing of charges, we find it highly improbable for the judge to be able to determine the existence of reasonable grounds to believe that the offenses have been committed and that each and everyone of the seventy-six (76) persons are probably guilty thereof in a matter of a few hours and to proceed with the issuance of the warrants of arrest also on the same day. It should be remembered and the judge should have taken into account that all the offenses which were allegedly committed were only the product and result of the outburst of the feelings and emotions of the people of Baras due to the highly tense situation in the municipality, which culminated with the May 14, 1982 incident. The judge, therefore, in conducting his preliminary investigation should have ascertained with double care if, indeed, there was ample evidence to warrant the issuance of arrest warrants and eventually the filing of criminal informations against such a big number of persons, most of whom were impelled by different motivations and whose respective participations were of varying natures and degrees. One of the crimes charged was sedition, a particularly grave offense not to be lightly treated by any prosecuting officer or judge. The possibility of prolonged detention because of the charge should have been considered. In view of the above considerations and, as suggested by the Solicitor-General in his manifestation made during the hearing on these petitions, embodied in our resolution dated May 29, 1984, the warrants of arrest issued by the Municipal Trial Court of Teresa, Rizal are recalled and the matter is referred to the Provincial Fiscal of Rizal who is directed to determine whether or not the preliminary examinations should be continued and, thereafter, to make a ruling on the results of any examination. WHEREFORE, in G.R. No. 60504, the petition for habeas corpus is hereby GRANTED. The penalty for contempt of the Commission on Elections is declared fully satisfied; the petitioner's bail on his own recognizance is CANCELLED; and he is restored to his liberty. In G.R. No. 60591, the petition is GRANTED in part. The resolution of the Commission on Elections proclaiming Bayani A. Ferrera duly elected mayor of Baras, Rizal is SET ASIDE. A permanent vacancy having arisen in the Office of Mayor, the vice-mayor shall assume the office after taking his oath and qualifying. In G.R. Nos. 60732-39, the petition is GRANTED in part. The warrants of arrest issued by the Municipal Trial Court of Teresa, Rizal are RECALLED as null and void. The Provincial Fiscal of Rizal is ORDERED to determine whether or not the preliminary examinations should be continued and, thereafter, to take the appropriate action on the matter, according to the tenor of this decision. SO ORDERED. 455 Election Laws Fundamental Principle
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 86564 August 1, 1989 RAMON L. LABO, JR., petitioner, vs. THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZABAL, respondents Estelito P. Mendoza for petitioner. Rillera and Quintana for private respondent.
CRUZ, J.: The petitioner asks this Court to restrain the Commission on Elections from looking into the question of his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction to conduct any inquiry into this matter, considering that the petition for quo warranto against him was not filed on time. It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of the payment of the filing fee, which the petitioner contends was an indispensable requirement. The fee is, curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of a horse the kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the reglementary period, there is no question that this petition must be granted and the challenge abated. The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on January 20, 1988. The petition for quo warranto was filed by the private respondent on January 26, 1988, but no filing fee was paid on that date. This fee was finally paid on February 10, 1988, or twenty-one days after his proclamation. As the petition by itself alone was ineffectual without the filing fee, it should be deemed filed only when the fee was paid. This was done beyond the reglementary period provided for under Section 253 of the Omnibus Election Code reading as follows: SEC. 253. Petition for quo warranto. Any voter contesting the election of a Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the result of the election. The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the Procedural Rules of the COMELEC providing that Sec. 5. No petition for quo warranto shall be given due course without the payment of a filing fee in the amount of Three Hundred Pesos (P300.00) and the legal research fee as required by law. and stresses that there is abundant jurisprudence holding that the payment of the filing fee is essential to the timeliness of the filling of 1 the petition itself. He cites many rulings of the Court to this effect, specifically Manchester v. Court of Appeals. For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it was flied ahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the COMELEC treated it as a pre-proclamation controversy and docketed it as SPC Case No. 88-288. No docket fee was collected although it was offered. It was only on February 8, 1988, that the COMELEC decided to treat his petition as solely for quo warranto and re-docketed it as EPC Case No. 88-19, serving him notice on February 10, 1988. He immediately paid the filing fee on that date. The private respondent argues further that during the period when the COMELEC regarded his petition as a pre-proclamation controversy, the time for filing an election protest or quo warranto proceeding was deemed suspended under Section 248 of the 2 Omnibus Election Code. At any rate, he says, Rule 36, Section 5, of the COMELEC Rules of Procedure cited by the petitioner, 456 Election Laws Fundamental Principle
became effective only on November 15, 1988, seven days after publication of the said Rules in the Official Gazette pursuant to Section 3 4, Rule 44 thereof. These rules could not retroact to January 26,1988, when he filed his petition with the COMELEC. In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the payment of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of the respondent COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively. To this, the private respondent counters that the latter resolution was intended for the local elections held on January 30, 1980, and did not apply to the 1988 local elections, which were supposed to be governed by the first-mentioned resolution. However, Res. No. 1996 took effect only on March 3, 1988, following the lapse of seven days after its publication as required by RA No. 6646, otherwise known as the Electoral Reform Law of 1987, which became effective on January 5, 1988. Its Section 30 provides in part: Sec. 30. Effectivity of Regulations and Orders of the Commission. The rules and regulations promulgated by the Commission shall take effect on the seventh day after their publication in the Official Gazette or in at least (2) daily newspapers of general circulation in the Philippines. The Court has considered the arguments of the parties and holds that the petition for quo warranto was filed on time. We agree with the respondents that the fee was paid during the ten-day period as extended by the pendency of the petition when it was treated by the COMELEC as a pre-proclamation proceeding which did not require the payment of a filing fee. At that, we reach this conclusion only on the assumption that the requirement for the payment of the fees in quo warranto proceedings was already effective. There is no record that Res. No. 1450 was even published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed. The petitioner forgets Ta;ada v. Tuvera when he argues that the resolutions became effective "immediately upon approval" simply because it was so provided therein. We held in that case that publication was still necessary under the due process clause despite such effectivity clause. In any event, what is important is that the filing fee was paid, and whatever delay there may have been is not imputable to the private respondent's fault or neglect. It is true that in the Manchester Case, we required the timely payment of the filing fee as a precondition 5 for the timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v. Asuncion, however this Court, taking into account the special circumstances of that case, declared: This Court reiterates the rule that the trial court acquires jurisdiction over a case only upon the payment of the prescribed filing fee. However, the court may allow the payment of the said fee within a reasonable time. In the event of non-compliance therewith, the case shall be dismissed. The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June 20, 1988, thus: Sec. 18. Non-payment of prescribed fees. If the fees above prescribed are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. (Emphasis supplied.) The Court notes that while arguing the technical point that the petition for quo warranto should be dismissed for failure to pay the filing fee on time, the petitioner would at the same time minimize his alleged lack of citizenship as "a futile technicality," It is regrettable, to say the least, that the requirement of citizenship as a qualification for public office can be so demeaned. What is worse is that it is regarded as an even less important consideration than the reglementary period the petitioner insists upon. This matter should normally end here as the sole issue originally raised by the petitioner is the timeliness of the quo warranto proceedings against him. However, as his citizenship is the subject of that proceeding, and considering the necessity for an early resolution of that more important question clearly and urgently affecting the public interest, we shall directly address it now in this same action. The Court has similarly acted in a notable number of cases, thus: From the foregoing brief statement of the nature of the instant case, it would appear that our sole function in this proceeding should be to resolve the single issue of whether or not the Court of Appeals erred in ruling that the motion for new trial of the GSIS in question should indeed be deemed pro forma. But going over the extended pleadings of both parties, the Court is immediately impressed that substantial justice may not be timely achieved, if we should decide this case upon such a technical ground alone. We have carefully read all the allegations and arguments of the parties, very ably and comprehensively expounded by evidently knowledgeable and unusually competent counsel, and we feel we can better serve the interests of justice by broadening the scope of our inquiry, for as the record before us stands, we see that there is enough basis for us to end the basic controversy between the parties here and now, dispensing, however, with procedural steps which would not anyway affect substantially the merits of their 6 respective claims. 457 Election Laws Fundamental Principle
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xxx While it is the fault of the petitioner for appealing to the wrong court and thereby allowing the period for appeal to lapse, the more correct procedure was for the respondent court to forward the case to the proper court which was the Court of Appeals for appropriate action. Considering, however, the length of time that this case has been pending, we apply the rule in the case of Del Castillo v. Jaymalin, (112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of Appeals, (135 SCRA 37) which states: ... it is a cherished rule of procedure for this Court to always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation. No useful purpose will be served if this case is remanded to the trial court only to have its decision raised again to the Intermediate Appellate Court and from there to this Court. (p. 43) Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R. No. 50141, January 29, 1988), we stated that: ... But all those relevant facts are now before this Court. And those facts dictate the rendition of a verdict in the petitioner's favor. There is therefore no point in referring the case back to the Court of Appeals. The facts and the legal propositions involved will not change, nor should the ultimate judgment. Considerable time has already elapsed and, to serve the ends of justice, it is time that the controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57; Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil. 162).lwph1.t Sound practice seeks to accommodate the theory which avoids waste of time, effort and expense, both to the parties and the government, not to speak of delay in the disposal of the case (cf. Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic of our judicial set-up is that where the dictates of justice so demand ... the Supreme Court should act, and act with finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that this Court act, and act 7 with finality. xxx Remand of the case to the lower court for further reception of evidence is not necessary where the court is in a position to resolve the dispute based on the records before it. On many occasions, the Court, in the public interest and the expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such as where the ends of justice would not be subserved by the remand of the case or when public interest demands an early disposition of the case or where the trial court had already received all the 8 evidence of the parties. This course of action becomes all the more justified in the present case where, to repeat for stress, it is claimed that a foreigner is holding a public office. We also note in his Reply, the petitioner says: In adopting private respondent's comment, respondent COMELEC implicitly adopted as "its own" private respondent's repeated assertion that petitioner is no longer a Filipino citizen. In so doing, has not respondent COMELEC effectively disqualified itself, by reason of prejudgment, from resolving the petition for quo warranto filed 9 by private respondent still pending before it? This is still another reason why the Court has seen fit to rule directly on the merits of this case. Going over the record, we find that there are two administrative decisions on the question of the petitioner's citizenship. The first was 10 rendered by the Commission on Elections on May 12, 1982, and found the petitioner to be a citizen of the Philippines. The second was rendered by the Commission on Immigration and Deportation on September 13, 1988, and held that the petitioner was not a citizen 11 of the Philippines. The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with Commissioners Pabalate Savellano and Opinion concurring in full and Commissioner Bacungan concurring in the dismissal of the petition "without prejudice to the issue of the respondent's citizenship being raised anew in a proper case." Commissioner Sagadraca reserved his vote, while Commissioner Felipe was for deferring decision until representations shall have been made with the Australian Embassy for official verification of the petitioner's alleged naturalization as an Australian.
458
The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and Commissioners Alano and Geraldez of the Commission on Immigration and Deportation. It is important to observe that in the proceeding before the COMELEC, there was no direct proof that the herein petitioner had been formally naturalized as a citizen of Australia. This conjecture, which was eventually rejected, was merely inferred from the fact that he had married an Australian citizen, obtained an Australian passport, and registered as an alien with the CID upon his return to this country in 1980. On the other hand, the decision of the CID took into account the official statement of the Australian Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still an Australian citizen as of that date by reason of his naturalization in 12 1976. That statement is reproduced in full as follows: I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of appointment signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October 1983, and recognized as such by Letter of Patent signed and sealed by the Philippines Acting Minister of Foreign Affairs on 23 November 1983, do hereby provide the following statement in response to the subpoena Testificandum dated 9 April 1984 in regard to the Petition for disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby certify that the statement is true and correct. STATEMENT A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in the Philippines to an Australian citizen. As the spouse of an Australian citizen, he was not required to meet normal requirements for the grant of citizenship and was granted Australian citizenship by Sydney on 28 July 1976. B) Any person over the age of 16 years who is granted Australian citizenship must take an oath of allegiance or make an affirmation of allegiance. The wording of the oath of affirmation is: "I ..., renouncing all other allegiance ..." etc. This need not necessarily have any effect on his former nationality as this would depend on the citizenship laws of his former country. C) The marriage was declared void in the Australian Federal Court in Sydney on 27 June 1980 on the ground that the marriage had been bigamous. D) According to our records LABO is still an Australian citizen. E) Should he return to Australia, LABO may face court action in respect of Section 50 of Australian Citizenship Act 1948 which relates to the giving of false or misleading information of a material nature in respect of an application for Australian citizenship. If such a prosecution was successful, he could be deprived of Australian citizenship under Section 21 of the Act. F) There are two further ways in which LABO could divest himself of Australian citizenship: (i) He could make a declaration of Renunciation of Australian citizenship under Section 18 of the Australian Citizenship Act, or (ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary act other than marriage, then he would automatically lose as Australian citizenship under Section 17 of the Act. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT MANILA IN THE PHILIPPINES. (Signed) GRAHAM C. WEST Consul This was affirmed later by the letter of February 1, 1988, addressed to the private respondent by the Department of 13 Foreign Affairs reading as follows: Sir: With reference to your letter dated 1 February 1988, I wish to inform you that inquiry made with the Australian Government through the Embassy of the Philippines in Canberra has elicited the following information: 1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.
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2) That prior to 17 July 1986, a candidate for Australian citizenship had to either swear an oath of allegiance or make an affirmation of allegiance which carries a renunciation of "all other allegiance. Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO, JR. Assistant Secretary The decision also noted the oath of allegiance taken by every naturalized Australian reading as follows: OATH OF ALLEGIANCE I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully 14 observe the laws of Australia and fulfill my duties as an Australian citizen. and the Affirmation of Allegiance, which declares: AFFIRMATION OF ALLEGIANCE I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and 15 that I will faithfully observe the Laws of Australia and fulfill my duties as an Australian citizen. The petitioner does not question the authenticity of the above evidence. Neither does he deny that he obtained Australian Passport No. 754705, which he used in coming back to the Philippines in 1980, when he declared before the immigration authorities that he was an 16 alien and registered as such under Alien Certificate of Registration No. B-323985. He later asked for the change of his status from 17 immigrant to a returning former Philippine citizen and was granted Immigrant Certificate of Residence No. 223809. He also categorically declared that he was a citizen of Australia in a number of sworn statements voluntarily made by him and. even sought to 18 avoid the jurisdiction of the barangay court on the ground that he was a foreigner. The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not divest the petitioner of his citizenship, although, as earlier noted, not all the members joined in this finding. We reject this ruling as totally baseless. The petitioner is not an unlettered person who was not aware of the consequences of his acts, let alone the fact that he was assisted by counsel when he performed these acts. The private respondent questions the motives of the COMELEC at that time and stresses Labo's political affiliation with the party in power then, but we need not go into that now. There is also the claim that the decision can no longer be reversed because of the doctrine of res judicata, but this too must be 19 dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in several cases. Moreover, it does not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only when the 20 petitioner filed his reply to the private respondent's comment. Besides, one of the requisites of res judicata, to wit, identity of parties, is not present in this case. The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was naturalized as such through a formal and positive process, simplified in his case because he was married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of Allegiance and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia ..." and to fulfill his duties "as an Australian citizen." The petitioner now claims that his naturalization in Australia made him at worst only a dual national and did not divest him of his Philippine citizenship. Such a specious argument cannot stand against the clear provisions of CA No. 63, which enumerates the modes by which Philippine citizenship may be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not concern us here. That is a matter between him and his adopted country. What we must consider is the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly embraced the citizenship of a foreign country. The possibility that he may have been subsequently rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a citizen of the Philippines. 460 Election Laws Fundamental Principle
Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the petitioner claim, that he has reacquired Philippine citizenship by any of these methods. He does not point to any judicial decree of naturalization as to any statute directly conferring Philippine citizenship upon him. Neither has he shown that he has complied with PD No. 725, providing that: ... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship through repatriation by applying with the Special Committee on Naturalization created by Letter of Instruction No. 270, and, if their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their certificate of registration. (Emphasis supplied.) That is why the Commission on Immigration and Deportation rejected his application for the cancellation of his alien certificate of registration. And that is also the reason we must deny his present claim for recognition as a citizen of the Philippines. The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the Philippines. In fact, he was 21 not even a qualified voter under the Constitution itself because of his alienage. He was therefore ineligible as a candidate for mayor of Baguio City, under Section 42 of the Local Government Code providing in material part as follows: Sec. 42. Qualifications. An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Filipino, or any other local language or dialect. The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate the will of the electorate of Baguio City, who elected him by a "resonant and thunderous majority." To be accurate, it was not as loud as all that, for his lead over the second-placer was only about 2,100 votes. In any event, the people of that locality could not have, even unanimously, changed the requirements of the Local Government Code and the Constitution. The electorate had no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as mayor of their city. Only citizens of the Philippines have that privilege over their countrymen. The probability that many of those who voted for the petitioner may have done so in the belief that he was qualified only strengthens the conclusion that the results of the election cannot nullify the qualifications for the office now held by him. These qualifications are continuing requirements; once any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar, the citizenship and voting requirements were not subsequently lost but were not possessed at all in the first place on the day of the election. The petitioner was disqualified from running as mayor and, although elected, is not now qualified to serve as such. Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio city. The latest ruling of the Court on this issue is Santos v. Commission on Elections decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a noncandidate, were all disregarded as stray. In effect, the second placer won by default. That decision was supported by eight m embers of 23 24 25 26 the Court then with three dissenting and another two reserving their vote. One was on official leave. Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, 27 Which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio 28 29 30 vs. Paredes was supported by ten members of the Court without any dissent, although one reserved his vote, another took no 31 32 part and two others were on leave. There the Court held: ... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental Idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.) The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second 461 Election Laws Fundamental Principle
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highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to grant him. Having been so endowed, he must not lightly yield this precious advantage, rejecting it for another land that may offer him material and other attractions that he may not find in his own country. To be 33 sure, he has the right to renounce the Philippines if he sees fit and transfer his allegiance to a state with more allurements for him. But having done so, he cannot expect to be welcomed back with open arms once his taste for his adopted country turns sour or he is himself disowned by it as an undesirable alien. Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be restored only after the returning renegade makes a formal act of re-dedication to the country he has abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of the Philippines. This may not be accomplished by election to public office. WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to VACATE his office and surrender the same to the Vice-Mayor of Baguio City, once this decision becomes final and executory. The temporary restraining order dated January 31, 1989, is LIFTED. Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Gri;o-Aquino Medialdea and Regalado, JJ., concur.
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Republic of the Philipppines SUPREME COURT Manila EN BANC [G.R. No. 158466.June 15, 2004] PABLO V. OCAMPO, Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND MARIO B. CRESPO a.k.a. MARK JIMENEZ, Respondents. DECISION SANDOVAL-GUTIERREZ, J.:chanroblesvirtuallawlibrary The wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration of election in favor of the person who obtained a plurality of votes and does not entitle a candidate receiving the next highest number of votes to be declared elected.[1]chanroblesvirtuallawlibrary This is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, filed by petitioner Pablo V. Ocampo.He alleged that the House of Representatives Electoral Tribunal (HRET), herein public respondent, committed grave abuse of discretion in issuing in HRET Case No. 01-024, Pablo Ocampo vs. Mario Mark Jimenez Crespo, the (a) Resolution[2] dated March 27, 2003 holding th that protestant (herein petitioner) cannot be proclaimed the duly elected Representative of the 6 District of Manila since being a second placer, he cannot be proclaimed the first among the remaining qualified candidates; and (b) Resolution[3] dated June 2, 2003 denying his motion for reconsideration.chanroblesvirtuallawlibrary The facts are uncontroverted:chanroblesvirtuallawlibrary On May 23, 2001, the Manila City Board of Canvassers proclaimed private respondent Mario B. Crespo, a.k.a. Mark Jimenez, the duly th elected Congressman of the 6 District of Manila pursuant to the May 14, 2001 elections.He was credited with 32,097 votes or a margin of 768 votes over petitioner who obtained 31,329 votes.chanroblesvirtuallawlibrary On May 31, 2001, petitioner filed with the HRET an electoral protest[4] against private respondent, impugning the election in 807 th precincts in the 6 District of Manila on the following grounds:(1) misreading of votes garnered by petitioner; (2) falsification of election returns; (3) substitution of election returns; (4) use of marked, spurious, fake and stray ballots; and (5) presence of ballots written by one person or two persons.The case was docketed as HRET Case No. 01-024.Petitioner prayed that a revision and appreciation of the th ballots in the 807 contested precincts be conducted; and that, thereafter, he be proclaimed the duly elected Congressman of the 6 District of Manila.chanroblesvirtuallawlibrary On June 18, 2001, private respondent filed his answer with counter-protest[5] vehemently denying that he engaged in massive vote buying.He also opposed petitioners allegation that there is a need for the revision and appreciation of ballots.chanroblesvirtuallawlibrary After the preliminary conference between the parties on July 12, 2001, the HRET issued a Resolution[6] limiting the issues to:first, whether massive vote-buying was committed by private respondent; and second, whether petitioner can be proclaimed the duly th elected Representative of the 6 District of Manila.chanroblesvirtuallawlibrary Meanwhile, on March 6, 2003, the HRET, in HRET Cases Nos. 01-020, Bienvenido Abante & Prudencio Jalandoni vs. Mario Crespo, and 01-023, Rosenda Ann M. Ocampo vs. Mario Crespo, issued Resolutions declaring that private respondent is ineligible for the Office of Representative of Sixth District of Manila for lack of residence in the district and ordering him to vacate his office.[7] Private respondent filed a motion for reconsideration but was denied.[8]chanroblesvirtuallawlibrary On March 12, 2003, petitioner reads:chanroblesvirtuallawlibrary filed a motion to implement Section 6 of Republic Act No. 6646,[9] which
Section 6. Effects of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted.If for any reason a candidate is not declared by final judgment before 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.chanroblesvirtuallawlibrary 463 Election Laws Fundamental Principle
Petitioner averred that since private respondent was declared disqualified in HRET Cases Nos. 01-020 and 01-023, the votes cast for him should not be counted.And having garnered the second highest number of votes, he (petitioner) should be declared the winner in th the May 14, 2001 elections and proclaimed the duly elected Congressman of the 6 District of Manila.chanroblesvirtuallawlibrary On March 26, 2003, private respondent provision.chanroblesvirtuallawlibrary filed an opposition to petitioners motion to implement the afore-quoted
On March 27, 2003, the HRET issued a Resolution holding that private respondent was guilty of vote-buying and disqualifying him as th Congressman of the 6 District of Manila.Anent the second issue of whether petitioner can be proclaimed the duly elected Congressman, the HRET held:chanroblesvirtuallawlibrary x x x Jurisprudence has long established the doctrine that a second placer cannot be proclaimed the first among the remaining qualified candidates.The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily give the candidate who obtained the second highest number of votes the right to be declared the winner of the elective office. x x xchanroblesvirtuallawlibrary It is of no moment that there is only a margin of 768 votes between protestant and protestee.Whether the margin is ten or ten thousand, it still remains that protestant did not receive the mandate of the majority during the elections.Thus, to proclaim him as the duly elected representative in the stead of protestee would be anathema to the most basic precepts of republicanism and democracy as enshrined within our Constitution.In effect, we would be advocating a massive disenfranchisement of the majority of the voters of the sixth district of Manila.chanroblesvirtuallawlibrary Congressional elections are different from local government elections.In local government elections, when the winning candidate for governor or mayor is subsequently disqualified, the vice-governor or the vice-mayor, as the case may be, succeeds to the position by virtue of the Local Government Code.It is different in elections for representative.When a voter chooses his congressional candidate, he chooses only one.If his choice is concurred in by the majority of voters, that candidate is declared the winner.Voters are not afforded the opportunity of electing a substitute congressman in the eventuality that their first choice dies, resigns, is disqualified, or in any other way leaves the post vacant.There can only be one representative for that particular legislative district.There are no runners -up or second placers.Thus, when the person vested with the mandate of the majority is disqualified from holding the post he was elected to, the only recourse to ascertain the new choice of the electorate is to hold another election. x x xchanroblesvirtuallawlibrary This does not mean that the Sixth Legislative District of Manila will be without adequate representation in Congress.Article VI, Section 9 of the Constitution, and Republic Act No. 6645 allows Congress to call a special election to fill up this vacancy.There are at least 13 months until the next congressional elections, which is more than sufficient time within which to hold a special election to enable the electorate of the Sixth District of Manila to elect their representative.chanroblesvirtuallawlibrary For this reason, the Tribunal holds that protestant cannot be proclaimed as the duly elected representative of the Sixth legislative District of Manila.chanroblesvirtuallawlibrary In view of the conclusion herein reached, it is unnecessary to rule on the recount and revision of ballots in the protested and counter-protested precincts.chanroblesvirtuallawlibrary WHEREFORE, the Tribunal Resolved to:chanroblesvirtuallawlibrary xxxxxxchanroblesvirtuallawlibrary 2)DENY protestants (petitioner) Motion to Implement Section 6, Republic Act No. 6646 by declaring the votes cast for Mario Crespo as stray votes.chanroblesvirtuallawlibrary Petitioner filed a partial motion for reconsideration but was denied.Hence, the present petition for certiorari. chanroblesvirtuallawlibrary Petitioner contends that the HRET committed grave abuse of discretion when it ruled that it is unnecessary to rule on the recount and revision of ballots in the protested and counter-protested precincts.He maintains that it is the ministerial duty of the HRET to implement the provisions of Section 6, R.A. No. 6646 specifically providing that 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.chanroblesvirtuallawlibrary In his comment, private respondent counters that what the law requires is that the disqualification by final judgment takes place th before the election.Here, the HRET Resolutions disqualifying him as Representative of the 6 District of Manila were rendered long after the May 14, 2001 elections.He also claims that the Resolutions are not yet final and executory because they are the subjects of certiorari proceedings before this Court.Hence, all his votes shall be counted and none shall be considered stray.chanroblesvirtuallawlibrary 464 Election Laws Fundamental Principle
The HRET, in its comment, through the Office of the Solicitor General, merely reiterates its ruling.chanroblesvirtuallawlibrary The petition must be dismissed.chanroblesvirtuallawlibrary The issues here are: (1) whether the votes cast in favor of private respondent should not be counted pursuant to Section 6 of R.A. No. 6646; and (2) whether petitioner, a second placer in the May 14, 2001 congressional elections, can be proclaimed the duly elected th Congressman of the 6 District of Manila.chanroblesvirtuallawlibrary The issues raised are not novel.In Codilla, Sr. vs. De Venecia,[10] we expounded on the application of Section 6, R.A. No. 6646.There, we emphasized that there must be a final judgment before the election in order that the votes of a disqualified candidate can be considered stray, thus:chanroblesvirtuallawlibrary Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require a final judgment before the election for the votes of a disqualified candidate to be considered stray. Hence, when a candidate has not yet been disqualified by final judgment during the election day and was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides.chanroblesvirtuallawlibrary The obvious rationale behind the foregoing ruling is that in voting for a candidate who has not been disqualified by final judgment during the election day, the people voted for him bona fide, without any intention to misapply their franchise, and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government.[11]chanroblesvirtuallawlibrary In the present case, private respondent was declared disqualified almost twenty-two (22) months after the May 14, 2001 elections.Obviously, the requirement of final judgment before election is absent.Therefore, petitioner can not invoke Section 6 of R.A. No. 6646.chanroblesvirtuallawlibrary Anent the second issue, we revert back to the settled jurisprudence that the subsequent disqualification of a candidate who obtained the highest number of votes does not entitle the candidate who garnered the second highest number of votes to be declared the winner.[12] This principle has been reiterated in a number our decisions, such as Labo, Jr. vs. COMELEC,[13] Abella vs. COMELEC,[14] Benito vs. COMELEC[15]and Domino vs. COMELEC.[16] As a matter of fact, even as early as 1912, it was held that the candidate who lost in an election cannot be proclaimed the winner in the event that the candidate who won is found to be ineligible for the office for which he was elected.[17]chanroblesvirtuallawlibrary In Geronimo vs. Ramos,[18] if the winning candidate is not qualified and cannot qualify for the office to which he was elected, a permanent vacancy is thus created.The second placer is just that, a second placer he lost in the elections, he was repudiated by either the majority or plurality of voters.He could not be proclaimed winner as he could not be considered the first among the qualified candidates.To rule otherwise is to misconstrue the nature of the democratic electroral process and the sociological and psychological underpinnings behind voters preferences.[19]chanroblesvirtuallawlibrary At any rate, the petition has become moot and academic. The Twelfth Congress formally adjourned on June 11, 2004.And on May 17, 2004, the City Board of Canvassers proclaimed Bienvenido Abante the duly elected Congressman of the Sixth District of Manila pursuant to the May 10, 2004 elections.chanroblesvirtuallawlibrary In the recent case of Enrile vs. Senate Electoral Tribunal,[20]we ruled that a case becomes moot and academic when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits.Worth reiterating is our pronouncement in Gancho-on vs. Secretary of Labor and Employment,thus:[21]chanroblesvirtuallawlibrary It is a rule of universal application, almost, that courts of justice constituted to pass upon substantial rights will not consider questions in which no actual interests are involved; they decline jurisdiction of moot cases.And where the issue has become moot and academic, there is no justiciable controversy, so that a declaration thereon would be of no practical use or value. There is no actual substantial relief to which petitioner would be entitled and which would be negated by the dismissal of the petition.chanroblesvirtuallawlibrary WHEREFORE, the petition is hereby DISMISSED.chanroblesvirtuallawlibrary SO ORDERED.chanroblesvirtuallawlibrary
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-22944 February 10, 1968

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

SEC. 18. On-Site Counting and Canvassing. ... ... ...

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

Election Laws Introductory Concepts

the Court of Appeals of Oregon explained:

Election Laws Introductory Concepts

Election Laws Introductory Concepts

the Supreme Court of Alaska warned against

Election Laws Introductory Concepts

Election Laws Introductory Concepts

the Supreme Court

As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:

Election Laws Introductory Concepts

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

Republic of the Philippines SUPREME COURT Manila EN BANC

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

we further clarified the meaning of the term, and held as follows:

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

the Court has ruled:

In Yaez de Barnuevo vs. Fuster,

the Court has held:

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

or the Revised Election Code of 1947, which provides in relevant

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

on the apparent unfairness of the rules on deemed

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

which criterion is complied with upon a showing of the following:

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings

Election Laws Election Process and/or Proceedings