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Penera vs.

COMELEC
G.R. No. 181613
November 25, 2009
FACTS:
Comelec disqualified Rosalida A. Penera from running for the office of Mayor
in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should succeed
her. The disqualification was based on allegations of premature campaigning.
Apparently, the campaign period for local officials began on 30 March 2007 and
ended on 12 May 2007. Penera filed her certificate of candidacy on 29 March 2007.
On the same date, she allegedly participated in a campaign through a motorcade
thus making her liable for premature campaigning under the election laws.
ISSUE:
Should Penera be disqualified?
HELD:
No. 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." The second sentence, third paragraph, Section 15 of RA 8436, as
amended by Section 13 of RA 9369, provides that "any 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."
According to the case of Lanot vs. Comelec, ―a person who files a
certificate of candidacy is not a candidate until the start of the campaign
period.‖ 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.
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. Penera is not liable for premature
campaigning for partisan political acts before the start of the campaigning.

Neri vs. Senate Blue Ribbon Committee
G.R. No. 180643
March 25, 2008
FACTS:
The Department of Transportation and Communication (DOTC) entered into a
contract with ZTE for the supply of equipment and services for the National
Broadband Network (NBN) Project in the amount of P16 Billion pesos. Several
resolutions were introduced in the Senate to various Senate Committees to conduct
an inquiry, in aid of legislation regarding the circumstances of the NBN Project. The
Senate Blue Ribbon Committee initiated the investigation by sending invitations to
certain persons involved in the NBN Project including Romulo Neri. Jose de Venecia
III testified that several high executive officials were using their influence to push
the approval of the NBN Project by the NEDA. Neri disclosed that then COMELEC
Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of
the NBN Project. He further narrated that he informed President Arroyo about the
bribery attempt and that she instructed him not to accept the bribe. However, when
probed further on what they discussed about the NBN Project, Neri refused to
answer, invoking ―executive privilege‖. In particular, he refused to answer the
questions on (1) whether or not President Arroyo followed up the NBN Project; (2)
whether or not she directed him to prioritize it, and (3) whether or not she directed
him to approve. The Senate Committees issued a Subpoena Ad Testificandum to
Neri, requiring him to testify on November 20, 2007. However, Executive Secretary
Ermita requested the Committees to dispense with Neri‘s testimony on the ground of
executive privilege. Due to Neri‘s absence on the said date, the Senate Blue Ribbon
Committee issued a letter requiring Neri to explain why he should not be cited in
contempt. Neri invoked executive privilege again. The Senate Committees found

Neri‘s explanations unsatisfactory. They issued an Order citing him in contempt and
ordering his arrest and detention at the Office of the Senate Sergeant‐At‐Arms
until such time that he would appear and give his testimony.
ISSUE:
1) Whether or not the Communications elicited by the 3 questions are
covered by executive privilege.
2) Whether or not the Senate Blue Ribbon Committee may issue a contempt
order.
HELD:
1) Yes. The elements of presidential communications privilege are:
i. The protected communication must relate to a ―quintessential and
non‐delegable presidential power.‖

ii. The communication must be authored or ―solicited and received‖ by
a close advisor of the President or the President himself. The judicial
test is that an advisor must be in ―operational proximity‖ with the
President.
iii. The presidential communications privilege remains a qualified
privilege that may be overcome by a showing of adequate need, such
that the information sought ―likely contains important evidence‖ and
by the unavailability of the information elsewhere by an appropriate
investigating authority.
Executive Secretary Ermita premised his claim of executive privilege on the
ground that the communications elicited by the 3 questions ―fall under conversation
and correspondence between the President and public officials‖ necessary in ―her
executive and policy decision‐making process‖ and, that ―the information sought to
be disclosed might impair our diplomatic as well as economic relations with China.‖
Simply put, the bases are presidential communications privilege and executive
privilege on matters relating to diplomacy or foreign relations. Hence, the

communications elicited by the 3 questions are covered by the presidential
communications privilege.
2) No. The Senate Committee may not issue a contempt order in view of five 5
reasons:
i. There is a valid claim of executive privilege.
ii. The Committees did not comply with the requirement laid down in
Senate v. Ermita that the invitations should contain the ―possible
needed statute which prompted the need for the inquiry,‖ along with
―the usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof.‖
iii. Only a minority of the members of the Senate Blue Ribbon
Committee was present during the deliberation
iv. Committees likewise violated Section 21 of Article VI of the
Constitution, requiring that the inquiry be in accordance with the ―duly
published rules of procedure.‖
v. Committees‘ issuance of the contempt Order is arbitrary and
precipitate.
Quinto, et. al. v COMELEC
GR No. 189698
December 1, 2009

FACTS:
Petitioners who are government employees raised constitutional challenge
against the provision of RA 9369, otherwise known as the Automation Law, on the
automatic resignation of appointive officials the moment they file their certificate of
candidacy. Petitioners contend that appointive officials should not be considered ipso
fact resigned from their position the moment they file their COCs because at that
instance, they are not yet considered as candidates by law. They will only be

recognized as such when campaign period starts. They likewise alleged that the law
is unconstitutional for being discriminatory and violative of equal protection clause
because it isolates appointive officials and favors elective officials.

The OSG, on one

hand, questioned petitioner‘s legal standing because they have not filed their COCs
yet and thus their interest is merely speculative.

ISSUES:
1)

Whether or not petitioners have legal standing

2)

Whether or not the law intends that appointive officials running for

public office be considered resign the moment they file their COCs.
3)

Whether or not the provision is violative of equal protection clause

HELD:
1.

Yes, petitioners‘ legal standing is anchored on the fact that they are qualified

voters. A restriction on candidacy affects the rights of voters to choose their public
officials. The court believes that both candidates and voters may challenge the
provision because of its impact on voting rights.
2.

No, the real intention of the law is that persons holding appointive positions

will only be considered as resigned at the start of the campaign period when they are
treated by law as candidates. This is in accord with the proviso in the same law that
a person who files his COC shall only be considered as candidate at the start of the
campaign period.
3.

Yes,

the

provision

is

violative

of equal

protection

clause because

the classification is not germane to the purpose of the law. The reasons for the
passage of the law are to prevent the use of governmental position to promote one‘s
candidacy or to wield coercive influence on the electorate. Limiting the restriction to
appointive officials will not serve the purpose. Whether one holds an appointive
office or an elective one, the evils sought to be prevented by then measure remain.

Furthermore, the challenged provision also suffers from infirmity for being
overbroad. The provision pertains to all civil servants holding appointive positions
without distinctions whether they occupy high positions in government or not. The
provision is directed to the activity of seeking any and all public offices, whether they
be partisan or non partisan in character, whether they be national municipal or
Barangay.
HENCE, the challenged provision must fail for being UNCONSTITUTIONAL.

Ang Ladlad vs. COMELEC
G.R. No. 190582
April 8, 2010
FACTS:
The case has its roots in the COMELEC‘s refusal to accredit Ang Ladlad as a
party-list 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.
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 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
platform of governance.
After admitting the petitioner‘s 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:

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 person‘s 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."
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. The Revised Penal Code
penalizes ‗Immoral doctrines, obscene publications and exhibitions and indecent
shows‘ (Art.201)
The COMELEC Chairman upheld the First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941 - 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 nation‘s – 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. 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.
III. Public Morals - 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 into society and these are not publicly accepted moral
norms.
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.
ISSUE: Whether Ang Ladlad should be granted accreditation. – PETITION GRANTED
HELD:
I. Compliance with the Requirements of the Constitution and Republic Act No. 7941
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,
fisher folk, urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals) may be registered
under the party-list system. As we 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.

We find that Ang Ladlad has sufficiently demonstrated its compliance with the
legal requirements for accreditation. Indeed, aside from COMELEC‘s 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 partylist organization under any of the requisites under RA 7941 or the guidelines in Ang
Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlad‘s morality, or
lack thereof.
II. Religion as the Basis for Refusal to Accept Ang Ladlad’s 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 free exercise thereof." At
bottom, what our non-establishment clause calls for is "government neutrality in
religious matters." Clearly, "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 on whether the COMELEC is able to advance some
justification for its rulings beyond mere conformity to religious doctrine.
III. Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration
The Assailed Resolutions have not identified any specific overt immoral act
performed by Ang Ladlad. Even the OSG agrees that "there should have been a
finding by the COMELEC that the group‘s 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." 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 petitioner‘s admission into the party-list
system would be so harmful as to irreparably damage the moral fabric of society.
IV. Equal Protection
Recent jurisprudence has affirmed that if a law neither burdens a fundamental
right nor targets a suspect class, we will uphold the classification as long as it bears
a rational relationship to some legitimate government end. In Central Bank
Employees Association, 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 unless there is a showing of a
clear and unequivocal breach of the Constitution." No law exists to criminalize
homosexual behavior or expressions or parties about homosexual behavior.
V. Freedom of Expression and Association
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.
VI. Non-Discrimination and International Law
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 should be construed
to include "sexual orientation‖. Additionally, a variety of United Nations bodies have
declared discrimination on 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 exclude any group or category of persons from elective office
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 Court‘s 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.

De Castro v JBC, et. al.
GR No. 191002
March 17, 2010

FACTS:
This case traces its genesis to the controversy that has arisen from the
forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010 or seven
days after the election. Under Section 4(1) Article VIII, vacancy in the Supreme
Court shall be filled within ninety days from the occurrence thereof. But, under
Section 15, Article VII, the incumbent president is prohibited from appointing two
months immediately before the next presidential election. The JBC has started its
nominating process but different petitions were filed to enjoin the JBC from further
proceeding in its nomination and leave the appointment power to the next president
pursuant to the prohibition under Section 15, Article VII.
ISSUE:
Whether or not the appointment in the judiciary is covered by the
prohibition under Section 15, Article VII.

HELD:
No, appointment in the judiciary is not covered by the prohibition. The
prohibition under Section 15, Article VII, is exclusive to the appointment in the
executive department. This provision is directed against appointment made for
buying votes and made for partisan consideration or the so called ―midnight
appointments‖. The framers did not intent to extend the prohibition to the judiciary
because their establishment of the JBC and their subjecting the nomination and
screening of candidates for judicial positions to the unhurried and deliberate process
of JBC ensured that there will be no midnight appointments. This isolating process is
not present in appointment in the executive.

Moreover, under Section 4(1) Article

VIII, vacancy in the judiciary must be filled up within ninety days from occurrence
thereof.

The framers intended it to be a mandatory provision. It is thus an

imperative duty of the President to appoint within ninety days from vacancy. Hence,
incumbent president may appoint the new Chief Justice to replace Puno.