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.

AUSTRIA-MARTINEZ, J.:

Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of the Philippine Bar, seeking a declaration that certain provisions of
Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003)1 suffer from constitutional infirmity. Claiming that he has actual and material legal interest in the subject
matter of this case in seeing to it that public funds are properly and lawfully used and appropriated, petitioner filed the instant petition as a taxpayer and as a lawyer.

The Court upholds the right of petitioner to file the present petition.

R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for
Other Purposes," appropriates funds under Section 29 thereof which provides that a supplemental budget on the General Appropriations Act of the year of its enactment into
law shall provide for the necessary amount to carry out its provisions. Taxpayers, such as herein petitioner, have the right to restrain officials from wasting public funds
through the enforcement of an unconstitutional statute.2 The Court has held that they may assail the validity of a law appropriating public funds 3 because expenditure of
public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4

The challenged provision of law involves a public right that affects a great number of citizens. The Court has adopted the policy of taking jurisdiction over cases whenever
the petitioner has seriously and convincingly presented an issue of transcendental significance to the Filipino people. This has been explicitly pronounced in Kapatiran ng
mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan,5 where the Court held:

Objections to taxpayers suit for lack of sufficient personality standing, or interest are, however, in the main procedural matters. Considering the importance to the
public of the cases at bar, and in keeping with the Courts duty, under the 1987 Constitution, to determine whether or not the other branches of government have
kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance of these petitions. 6

Indeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage of a considerable number of Filipinos is involved.

The question of propriety of the instant petition which may appear to be visited by the vice of prematurity as there are no ongoing proceedings in any tribunal, board or before
a government official exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the Rules of Court, dims in light of the importance of the
constitutional issues raised by the petitioner. In Taada vs. Angara, 7 the Court held:

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy.
Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. "The question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution is
upheld." Once a "controversy as to the application or interpretation of constitutional provision is raised before this Court (as in the instant case), it becomes a
legal issue which the Court is bound by constitutional mandate to decide."

In another case of paramount impact to the Filipino people, it has been expressed that it is illogical to await the adverse consequences of the law in order to consider the
controversy actual and ripe for judicial resolution.8 In yet another case, the Court said that:

. . . despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not hesitate to declare a law or act invalid when it is
convinced that this must be done. In arriving at this conclusion, its only criterion will be the Constitution and God as its conscience gives it in the light to probe its
meaning and discover its purpose. Personal motives and political considerations are irrelevancies that cannot influence its decisions. Blandishment is as
ineffectual as intimidation, for all the awesome power of the Congress and Executive, the Court will not hesitate "to make the hammer fall heavily," where the
acts of these departments, or of any official, betray the peoples will as expressed in the Constitution . . . 9

The need to consider the constitutional issues raised before the Court is further buttressed by the fact that it is now more than fifteen years since the ratification of the 1987
Constitution requiring Congress to provide a system for absentee voting by qualified Filipinos abroad. Thus, strong reasons of public policy demand that the Court resolves
the instant petition10 and determine whether Congress has acted within the limits of the Constitution or if it had gravely abused the discretion entrusted to it. 11

The petitioner raises three principal questions:

A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or permanent residents in other countries by their mere act of
executing an affidavit expressing their intention to return to the Philippines, violate the residency requirement in Section 1 of Article V of the Constitution?

B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning candidates for national offices and party list representatives including
the President and the Vice-President violate the constitutional mandate under Section 4, Article VII of the Constitution that the winning candidates for President
and the 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:
.........

1
 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 Appeals12 to support his claim. In that case, the Court held that a "green card" holder immigrant to the United States is deemed to have abandoned his
domicile and residence in the Philippines.

Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional registration or a promise by a voter to perform a condition to be qualified to
vote in a political exercise;13 that the legislature should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by providing a condition
thereon which in effect amends or alters the aforesaid residence requirement to qualify a Filipino abroad to vote. 14 He claims that the right of suffrage should not be granted to
anyone who, on the date of the election, does not possess the qualifications provided for by Section 1, Article V of the Constitution.

Respondent COMELEC refrained from commenting on this issue. 15

In compliance with the Resolution of the Court, the Solicitor General filed his comment for all public respondents. He contraposes that the constitutional challenge to Section
5(d) must fail because of the absence of clear and unmistakable showing that said provision of law is repugnant to the Constitution. He stresses: All laws are presumed to be
constitutional; by the doctrine of separation of powers, a department of government owes a becoming respect for the acts of the other two departments; all laws are presumed
to have adhered to constitutional limitations; the legislature intended to enact a valid, sensible, and just law.

In addition, the Solicitor General points out that Section 1, Article V of the Constitution is a verbatim reproduction of those provided for in the 1935 and the 1973
Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House of Representatives 16 wherein the Court held that the term "residence" has been understood to be
synonymous with "domicile" under both Constitutions. He further argues that a person can have only one "domicile" but he can have two residences, one permanent (the
domicile) and the other temporary;17 and that the definition and meaning given to the term residence likewise applies to absentee voters. Invoking Romualdez-Marcos vs.
COMELEC18 which reiterates the Courts ruling in Faypon vs. Quirino, 19 the Solicitor General maintains that Filipinos who are immigrants or permanent residents abroad
may have in fact never abandoned their Philippine domicile. 20

Taking issue with the petitioners contention that "green card" holders are considered to have abandoned their Philippine domicile, the Solicitor General suggests that the
Court may have to discard its ruling in Caasi vs. Court of Appeals21 in so far as it relates to immigrants and permanent residents in foreign countries who have executed and
submitted their affidavits conformably with Section 5(d) of R.A. No. 9189. He maintains that through the execution of the requisite affidavits, the Congress of the Philippines
with the concurrence of the President of the Republic had in fact given these immigrants and permanent residents the opportunity, pursuant to Section 2, Article V of the
Constitution, to manifest that they had in fact never abandoned their Philippine domicile; that indubitably, they would have formally and categorically expressed the requisite
intentions, i.e., "animus manendi" and "animus revertendi;" that Filipino immigrants and permanent residents abroad possess the unquestionable right to exercise the right of
suffrage under Section 1, Article V of the Constitution upon approval of their registration, conformably with R.A. No. 9189. 22

The seed of the present controversy is the interpretation that is given to the phrase, "qualified citizens of the Philippines abroad" as it appears in R.A. No. 9189, to wit:

SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest and orderly overseas absentee voting that upholds the secrecy and sanctity of
the ballot. Towards this end, the State ensures equal opportunity to all qualified citizens of the Philippines abroad in the exercise of this fundamental right.

SEC. 3. Definition of Terms. For purposes of this Act:

a) "Absentee Voting" refers to the process by which qualified citizens of the Philippines abroad, exercise their right to vote;

. . . (Emphasis supplied)

f) "Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by
law, who is abroad on the day of elections. (Emphasis supplied)

SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of
elections, may vote for president, vice-president, senators and party-list representatives. (Emphasis supplied)

in relation to Sections 1 and 2, Article V of the Constitution which read:

SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have
resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No
literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.

SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos
abroad.

. . . . . . . . . (Emphasis supplied)

Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by (1) all citizens of the Philippines, (2) not otherwise disqualified by law, (3) at
least eighteen years of age, (4) who are residents in the Philippines for at least one year and in the place where they propose to vote for at least six months immediately
preceding the election. Under Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant or permanent resident who is recognized as such in the
host country unless he/she executes an affidavit declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three years from
approval of his/her registration under said Act.

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Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos abroad who are immigrants or permanent residents, to vote. He focuses
solely on Section 1, Article V of the Constitution in ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the provisions of Section 2
empowering Congress to provide a system for absentee voting by qualified Filipinos abroad.

A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it contravenes Section 1, Article V of the Constitution. Filipino immigrants
and permanent residents overseas are perceived as having left and abandoned the Philippines to live permanently in their host countries and therefore, a provision in the law
enfranchising those who do not possess the residency requirement of the Constitution by the mere act of executing an affidavit expressing their intent to return to the
Philippines within a given period, risks a declaration of unconstitutionality. However, the risk is more apparent than real.

The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights must be
determined and all public authority administered.23 Laws that do not conform to the Constitution shall be stricken down for being unconstitutional.

Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the Court said:

. . . An act of the legislature, approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests
not on the courts alone but on the legislature as well. The question of the validity of every statute is first determined by the legislative department of the
government itself.24

Thus, presumption of constitutionality of a law must be overcome convincingly:

. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be clear and unequivocal, for even if a law is aimed at the attainment of
some public good, no infringement of constitutional rights is allowed. To strike down a law there must be a clear showing that what the fundamental law
condemns or prohibits, the statute allows it to be done. 25

As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic view of the pertinent provisions of both the
Constitution and R.A. No. 9189. It is a basic rule in constitutional construction that the Constitution should be construed as a whole. In Chiongbian vs. De Leon,26 the Court
held that a constitutional provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great
document. Constitutional provisions are mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest. 27 The intent
of the Constitution may be drawn primarily from the language of the document itself. Should it be ambiguous, the Court may consider the intent of its framers through their
debates in the constitutional convention.28

R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the Constitution that Congress shall provide a system for voting by
qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in the
absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI (The Legislative Department) of the Constitution.

To put matters in their right perspective, it is necessary to dwell first on the significance of absentee voting. The concept of absentee voting is relatively new. It is viewed
thus:

The method of absentee voting has been said to be completely separable and distinct from the regular system of voting, and to be a new and different manner of
voting from that previously known, and an exception to the customary and usual manner of voting. The right of absentee and disabled voters to cast their ballots
at an election is purely statutory; absentee voting was unknown to, and not recognized at, the common law.

Absentee voting is an outgrowth of modern social and economic conditions devised to accommodate those engaged in military or civil life whose duties make it
impracticable for them to attend their polling places on the day of election, and the privilege of absentee voting may flow from constitutional provisions or be
conferred by statutes, existing in some jurisdictions, which provide in varying terms for the casting and reception of ballots by soldiers and sailors or other
qualified voters absent on election day from the district or precinct of their residence.

Such statutes are regarded as conferring a privilege and not a right, or an absolute right. When the legislature chooses to grant the right by statute, it must
operate with equality among all the class to which it is granted; but statutes of this nature may be limited in their application to particular types of
elections. The statutes should be construed in the light of any constitutional provisions affecting registration and elections, and with due regard to their texts
prior to amendment and to predecessor statutes and the decisions thereunder; they should also be construed in the light of the circumstances under which they
were enacted; and so as to carry out the objects thereof, if this can be done without doing violence to their provisions and mandates. Further, in passing on
statutes regulating absentee voting, the court should look to the whole and every part of the election laws, the intent of the entire plan, and reasons and spirit
of their adoption, and try to give effect to every portion thereof.29 (Emphasis supplied)

Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee. 30 However, under our election laws and the
countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residence in the Philippines as residence is considered synonymous with
domicile.

In Romualdez-Marcos,31 the Court enunciated:

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their place of
habitual residence." In Ong vs. Republic, this court took the concept of domicile to mean an individuals "permanent home," "a place to which, whenever absent
for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent." Based on the foregoing, domicile
includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area,
community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which
the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a persons intent be to remain, it becomes his
domicile; if his intent is to leave as soon as his purpose is established it is residence. It is thus, quite perfectly normal for an individual to have different residences
in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another
domicile of choice. 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

3
 domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have
but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of
domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will constitute domicile."

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election
law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile.32 (Emphasis supplied)

Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the Constitution considered the circumstances that impelled
them to require Congress to establish a system for overseas absentee voting, thus:

MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has a residential restriction, is not denied to citizens temporarily
residing or working abroad. Based on the statistics of several government agencies, there ought to be about two million such Filipinos at this time. Commissioner
Bernas had earlier pointed out that these provisions are really lifted from the two previous Constitutions of 1935 and 1973, with the exception of the last
paragraph. They could not therefore have foreseen at that time the phenomenon now described as the Filipino labor force explosion overseas.

According to government data, there are now about 600,000 contract workers and employees, and although the major portions of these expatriate communities of
workers are to be found in the Middle East, they are scattered in 177 countries in the world.

In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said that
there was no insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship
notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own or under pressure of economic
necessity here, find that they have to detach themselves from their families to work in other countries with definite tenures of employment. Many of them are on
contract employment for one, two, or three years. They have no intention of changing their residence on a permanent basis, but are technically disqualified from
exercising the right of suffrage in their countries of destination by the residential requirement in Section 1 which says:

Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall
have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election.

I, therefore, ask the Committee whether at the proper time they might entertain an amendment that will make this exercise of the right to vote abroad for Filipino
citizens an effective, rather than merely a nominal right under this proposed Constitution.

FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would like to make a comment on the meaning of "residence" in the
Constitution because I think it is a concept that has been discussed in various decisions of the Supreme Court, particularly in the case of Faypon vs. Quirino, a
1954 case which dealt precisely with the meaning of "residence" in the Election Law. Allow me to quote:

A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to improve his lot and that, of course, includes study in other
places, practice of his avocation, reengaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may
decide to return to his native town, to cast his ballot, but for professional or business reasons, or for any other reason, he may not absent himself from
the place of his professional or business activities.

So, they are here registered as voters as he has the qualifications to be one, and is not willing to give up or lose the opportunity to choose the officials
who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or
residence of origin has not forsaken him.

This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient to consider abandonment or loss of
such residence of origin.

In other words, "residence" in this provision refers to two residence qualifications: "residence" in the Philippines and "residence" in the place where he will vote.
As far as residence in the Philippines is concerned, the word "residence" means domicile, but as far as residence in the place where he will actually cast his ballot
is concerned, the meaning seems to be different. He could have a domicile somewhere else and yet he is a resident of a place for six months and he is allowed to
vote there. So that there may be serious constitutional obstacles to absentee voting, unless the vote of the person who is absent is a vote which will be
considered as cast in the place of his domicile.

MR. OPLE. Thank you for citing the jurisprudence.

It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of suffrage, at least a substantial segment of these overseas Filipino
communities. The Committee, of course, is aware that when this Article of the Constitution explicitly and unequivocally extends the right of effective suffrage to
Filipinos abroad, this will call for a logistical exercise of global proportions. In effect, this will require budgetary and administrative commitments on the part of
the Philippine government, mainly through the COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive elaboration of this mechanism that
will be put in place to make effective the right to vote. Therefore, seeking shelter in some wise jurisprudence of the past may not be sufficient to meet the
demands of the right of suffrage for Filipinos abroad that I have mentioned. But I want to thank the Committee for saying that an amendment to this effect may
be entertained at the proper time. . . . . . . . . . 33 (Emphasis supplied)

Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad principally for economic reasons and hence they contribute in no small
measure to the economic uplift of this country, their voices are marginal insofar as the choice of this countrys leaders is concerned.

The Constitutional Commission realized that under the laws then existing and considering the novelty of the system of absentee voting in this jurisdiction, vesting overseas
Filipinos with the right to vote would spawn constitutional problems especially because the Constitution itself provides for the residency requirement of voters:

MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term "absentee voting" also includes transient voting; meaning, those
who are, let us say, studying in Manila need not go back to their places of registration, for instance, in Mindanao, to cast their votes.

MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.

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 MR. REGALADO. How about those people who cannot go back to the places where they are registered?

MR. MONSOD. Under the present Election Code, there are provisions for allowing students and military people who are temporarily in another place to register
and vote. I believe that those situations can be covered by the Omnibus Election Code. The reason we want absentee voting to be in the Constitution as a
mandate to the legislature is that there could be inconsistency on the residence rule if it is just a question of legislation by Congress. So, by allowing it and
saying that this is possible, then legislation can take care of the rest.34 (Emphasis supplied)

Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to avoid
any problems that could impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the Philippines that the Constitutional
Commission explicitly mandated Congress to provide a system for overseas absentee voting.

The discussion of the Constitutional Commission on the effect of the residency requirement prescribed by Section 1, Article V of the Constitution on the proposed system of
absentee voting for qualified Filipinos abroad is enlightening:

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.

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.

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 THE PRESIDENT. It is just to devise a system by which they can vote.

MR. MONSOD. That is right, Madam President.35 (Emphasis supplied)

Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the responsibility of devising a system of absentee voting. The qualifications of voters
as stated in Section 1 shall remain except for the residency requirement. This is in fact the reason why the Constitutional Commission opted for the term qualified Filipinos
abroad with respect to the system of absentee voting that Congress should draw up. As stressed by Commissioner Monsod, by the use of the adjective qualified with respect
to Filipinos abroad, the assumption is that they have the "qualifications and none of the disqualifications to vote." In fine-tuning the provision on absentee voting, the
Constitutional Commission discussed how the system should work:

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.36 (Emphasis supplied)

It is clear from these discussions of the members of the Constitutional Commission that they intended to enfranchise as much as possible all Filipino citizens abroad who
have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents domicile of origin is in
the Philippines, and consider them qualified as voters for the first time.

It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1. By the doctrine of necessary
implication in statutory construction, which may be applied in construing constitutional provisions, 37 the strategic location of Section 2 indicates that the Constitutional
Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect
declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the
Constitution.

That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the subject of debate when
Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus:

Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional provisions. I think the sponsor and I would agree that the
Constitution is supreme in any statute that we may enact.

Let me read Section 1, Article V, of the Constitution entitled, "Suffrage." It says:

6
 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.

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. 38 (Emphasis supplied)

Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process, to wit:

SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections,
may vote for president, vice-president, senators and party-list representatives.

which does not require physical residency in the Philippines; and Section 5 of the assailed law which enumerates those who are disqualified, to wit:

SEC. 5. Disqualifications. The following shall be disqualified from voting under this Act:

a) Those who have lost their Filipino citizenship in accordance with Philippine laws;

b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country;

c) Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year,
including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability not having been
removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote
upon expiration of five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of final judgments issued by foreign
courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments;

7
 d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval
of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause
for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote
in absentia.

e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the
Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer
insane or incompetent.

As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is "recognized as such in the host country"
because immigration or permanent residence in another country implies renunciation of ones residence in his country of origin. However, same Section allows an immigrant
and permanent resident abroad to register as voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile in pursuance of the
constitutional intent expressed in Sections 1 and 2 of Article V that "all citizens of the Philippines not otherwise disqualified by law" must be entitled to exercise the right of
suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the
framers of the Constitution to mandate Congress to establish a system for absentee voting.

Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of the
intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not
in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes
"provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise."

To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries, they are presumed to have relinquished their
intent to return to this country; thus, without the affidavit, the presumption of abandonment of Philippine domicile shall remain.

Further perusal of the transcripts of the Senate proceedings discloses another reason why the Senate required the execution of said affidavit. It wanted the affiant to exercise
the option to return or to express his intention to return to his domicile of origin and not to preempt that choice by legislation. Thus:

Senator Villar. Yes, we are going back.

It states that: "For Filipino immigrants and those who have acquired permanent resident status abroad," a requirement for the registration is the submission of "a
Sworn Declaration of Intent to Return duly sworn before any Philippine embassy or consulate official authorized to administer oath"

Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn Declaration to include only those who have the intention of returning to
be qualified to exercise the right of suffrage? What if the Filipino immigrant has no purpose of returning? Is he automatically disbarred from exercising this right
to suffrage?

Senator Angara. The rationale for this, Mr. President, is that we want to be expansive and all-inclusive in this law. That as long as he is a Filipino, no
matter whether he is a green-card holder in the U.S. or not, he will be authorized to vote. But if he is already a green-card holder, that means he has
acquired permanent residency in the United States, then he must indicate an intention to return. This is what makes for the definition of "domicile."
And to acquire the vote, we thought that we would require the immigrants and the green-card holders . . . Mr. President, the three administration senators are
leaving, maybe we may ask for a vote [Laughter].

Senator Villar. For a merienda, Mr. President.

Senator Angara. Mr. President, going back to the business at hand. The rationale for the requirement that an immigrant or a green-card holder should file an
affidavit that he will go back to the Philippines is that, if he is already an immigrant or a 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. 39 (Emphasis supplied)

The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified to run for any elective office finds no application to the present case
because 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.

8
 11.1. Every qualified citizen of the Philippines abroad whose application for registration has been approved, including those previously registered under Republic
Act No. 8189, shall, in every national election, file with the officer of the embassy, consulate or other foreign service establishment authorized by the
Commission, a sworn written application to vote in a form prescribed by the Commission. The authorized officer of such embassy, consulate or other foreign
service establishment shall transmit to the Commission the said application to vote within five (5) days from receipt thereof. The application form shall be
accomplished in triplicate and submitted together with the photocopy of his/her overseas absentee voter certificate of registration.

11.2. Every application to vote in absentia may be done personally at, or by mail to, the embassy, consulate or foreign service establishment, which has
jurisdiction over the country where he/she has indicated his/her address for purposes of the elections.

11.3. Consular and diplomatic services rendered in connection with the overseas absentee voting processes shall be made available at no cost to the overseas
absentee voter.

Contrary to petitioners claim that Section 5(d) circumvents the Constitution, Congress enacted the law prescribing a system of overseas absentee voting in compliance with
the constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the "qualified citizen of the
Philippines abroad" is not physically present in the country. The provisions of Sections 5(d) and 11 are components of the system of overseas absentee voting established by
R.A. No. 9189. The qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost his
domicile by his physical absence from this country. His having become an immigrant or permanent resident of his host country does not necessarily imply an abandonment of
his intention to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the opportunity to express that he has not actually abandoned his
domicile in the Philippines by executing the affidavit required by Sections 5(d) and 8(c) of the law.

Petitioners speculative apprehension that the implementation of Section 5(d) would affect the credibility of the elections is insignificant as what is important is to ensure that
all those who possess the qualifications to vote on the date of the election are given the opportunity and permitted to freely do so. The COMELEC and the Department of
Foreign Affairs have enough resources and talents to ensure the integrity and credibility of any election conducted pursuant to R.A. No. 9189.

As to the eventuality that the Filipino abroad would renege on his undertaking to return to the Philippines, the penalty of perpetual disenfranchisement provided for by
Section 5(d) would suffice to serve as deterrence to non-compliance with his/her undertaking under the affidavit.

Petitioner argues that should a sizable number of "immigrants" renege on their promise to return, the result of the elections would be affected and could even be a ground to
contest the proclamation of the winning candidates and cause further confusion and doubt on the integrity of the results of the election. Indeed, the probability that after an
immigrant has exercised the right to vote, he shall opt to remain in his host country beyond the third year from the execution of the affidavit, is not farfetched. However, it is
not for this Court to determine the wisdom of a legislative exercise. As expressed in Taada vs. Tuvera,40 the Court is not called upon to rule on the wisdom of the law or to
repeal it or modify it if we find it impractical.

Congress itself was conscious of said probability and in fact, it has addressed the expected problem. Section 5(d) itself provides for a deterrence which is that the Filipino
who fails to return as promised stands to lose his right of suffrage. Under Section 9, should a registered overseas absentee voter fail to vote for two consecutive national
elections, his name may be ordered removed from the National Registry of Overseas Absentee Voters.

Other serious legal questions that may be raised would be: what happens to the votes cast by the qualified voters abroad who were not able to return within three years as
promised? What is the effect on the votes cast by the 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:

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.

9
 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. 41

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.

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.42 where this Court held that the power of the COMELEC to formulate rules and regulations is implicit in its power to implement regulations under Section 2(1) of Article
IX-C43 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) Where the mailing system is fairly well-developed and secure to prevent occasion for fraud;

b) Where there exists a technically established identification system that would preclude multiple or proxy voting; and

c) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned are adequate and
well-secured.

Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Congressional Oversight Committee . . . . . . . . .
(Emphasis supplied)

is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence of constitutional commissions.

The Solicitor General takes exception to his prefatory statement that the constitutional challenge must fail and agrees with the petitioner that Sections 19 and 25 are invalid
and unconstitutional on the ground that there is nothing in Article VI of the Constitution on Legislative Department that would as much as imply that Congress has concurrent

10
power to enforce and administer election laws with the COMELEC; and by the principles of exclusio unius est exclusio alterius and expressum facit cessare tacitum, the
constitutionally enumerated powers of Congress circumscribe its authority to the exclusion of all others.

The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are unconstitutional. Thus, there is no actual issue forged on this question raised by
petitioner.

However, the Court finds it expedient to expound on the role of Congress through the Joint Congressional Oversight Committee (JCOC) vis--vis the independence of the
COMELEC, as a constitutional body.

R.A. No. 9189 created the JCOC, as follows:

SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional Oversight Committee is hereby created, composed of the Chairman of the Senate
Committee on Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators designated by the Senate President, and the Chairman of
the House Committee on Suffrage and Electoral Reforms, and seven (7) other Members of the House of Representatives designated by the Speaker of the House
of Representatives: Provided, That, of the seven (7) members to be designated by each House of Congress, four (4) should come from the majority and the
remaining three (3) from the minority.

The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the implementation of this Act. It shall review, revise,
amend and approve the Implementing Rules and Regulations promulgated by the Commission. (Emphasis supplied)

SEC. 19. Authority of the Commission to Promulgate Rules. The Commission shall issue the necessary rules and regulations to effectively implement the
provisions of this Act within sixty (60) days from the effectivity of this Act. The Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for prior approval.

. . . . . . . . . (Emphasis supplied)

Composed of Senators and Members of the House of Representatives, the Joint Congressional Oversight Committee (JCOC) is a purely legislative body. There is no question
that the authority of Congress to "monitor and evaluate the implementation" of R.A. No. 9189 is geared towards possible amendments or revision of the law itself and thus,
may be performed in aid of its legislation.

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." 44 In
an earlier case, the Court elucidated:

The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of its
functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may err, so
may this court also. It should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for
which it was created free, orderly and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross
abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of
pure theory. The Commission on Elections, because of its 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. 45 (Emphasis supplied)

The Court has no general powers of supervision over COMELEC which is an independent body "except those specifically granted by the Constitution," that is, to review its
decisions, orders and rulings.46 In the same vein, it is not correct to hold that because of its recognized extensive legislative power to enact election laws, Congress may
intrude into the independence of the COMELEC by exercising supervisory powers over its rule-making authority.

By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue the necessary rules and regulations to effectively implement the provisions of
this Act within sixty days from the effectivity of this Act." This provision of law follows the usual procedure in drafting rules and regulations to implement a law the
legislature grants an administrative agency the authority to craft the rules and regulations implementing the law it has enacted, in recognition of the administrative expertise
of that agency in its particular field of operation.47 Once a law is enacted and approved, the legislative function is deemed accomplished and complete. The legislative
function may spring back to Congress relative to the same law only if that body deems it proper to 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 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

11
conditions provided for in Section 17.1 of R.A. No. 9189.48 Otherwise, Congress would overstep the bounds of its constitutional mandate and intrude into the independence of
the COMELEC.

During the deliberations, all the members of the Court agreed to adopt the separate opinion of Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of
Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of and the powers given to the Joint Congressional Oversight Committee.

WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189 are declared VOID for being UNCONSTITUTIONAL:

a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: "subject to the approval of the Joint Congressional Oversight Committee;"

b) The portion of the last paragraph of Section 17.1, to wit: "only upon review and approval of the Joint Congressional Oversight Committee;"

c) The second sentence of the first paragraph of Section 19, to wit: "The Implementing Rules and Regulations shall be submitted to the Joint Congressional
Oversight Committee created by virtue of this Act for prior approval;" and

d) The second sentence in the second paragraph of Section 25, to wit: "It shall review, revise, amend and approve the Implementing Rules and Regulations
promulgated by the Commission" of the same law;

for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence of constitutional commission, such as COMELEC.

The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the authority given to the COMELEC to proclaim the winning candidates for the
Senators and party-list representatives but not as to the power to canvass the votes and proclaim the winning candidates for President and Vice-President which is lodged with
Congress under Section 4, Article VII of the Constitution.

The constitutionality of Section 5(d) is UPHELD.

Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in full force and effect.

SO ORDERED.

G.R. No. 162759 August 4, 2006

LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA, ALEJANDRO A. ESCLAMADO, ARMANDO B. HEREDIA, REUBEN S. SEGURITAN, ERIC
LACHICA FURBEYRE, TERESITA A. CRUZ, JOSEFINA OPENA DISTERHOFT, MERCEDES V. OPENA, CORNELIO R. NATIVIDAD, EVELYN D.
NATIVIDAD, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION

GARCIA, J.:

In this petition for certiorari and mandamus, petitioners, referring to themselves as "duals" or dual citizens, pray that they and others who retained or reacquired Philippine
citizenship under Republic Act (R.A.) No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003, be allowed to avail themselves of the mechanism provided under
the Overseas Absentee Voting Act of 2003 1 (R.A. 9189) and that the Commission on Elections (COMELEC) accordingly be ordered to allow them to vote and register as
absentee voters under the aegis of R.A. 9189.

The facts:

Petitioners are successful applicants for recognition of Philippine citizenship under R.A. 9225 which accords to such applicants the right of suffrage, among others. Long
before the May 2004 national and local elections, petitioners sought registration and certification as "overseas absentee voter" only to be advised by the Philippine Embassy
in the United States that, per a COMELEC letter to the Department of Foreign Affairs dated September 23, 2003 2, they have yet no right to vote in such elections owing to
their lack of the one-year residence requirement prescribed by the Constitution. The same letter, however, urged the different Philippine posts abroad not to discontinue their
campaign for voters registration, as the residence restriction adverted to would contextually affect merely certain individuals who would likely be eligible to vote in future
elections.

Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the ruling in Macalintal vs. COMELEC 3 on the residency requirement, the COMELEC wrote in
response:

Although R.A. 9225 enjoys the presumption of constitutionality , it is the Commission's position that those who have availed of the law cannot exercise the right of
suffrage given under the OAVL for the reason that the OAVL was not enacted for them. Hence, as Filipinos who have merely re-acquired their citizenship on 18 September
2003 at the earliest, and as law and jurisprudence now stand, they are considered regular voters who have to meet the requirements of residency, among others under Section
1, Article 5 of the Constitution. 4

Faced with the prospect of not being able to vote in the May 2004 elections owing to the COMELEC's refusal to include them in the National Registry of Absentee Voters,
petitioner Nicolas-Lewis et al., 5 filed on April 1, 2004 this petition for certiorari and mandamus.

A little over a week before the May 10, 2004 elections, or on April 30, 2004, the COMELEC filed a Comment, 6 therein praying for the denial of the petition. As may be
expected, petitioners were not able to register let alone vote in said elections.

12
On May 20, 2004, the Office of the Solicitor General (OSG) filed a Manifestation (in Lieu of Comment), therein stating that "all qualified overseas Filipinos, including dual
citizens who care to exercise the right of suffrage, may do so" , observing, however, that the conclusion of the 2004 elections had rendered the petition moot and academic. 7

The holding of the 2004 elections had, as the OSG pointed out, indeed rendered the petition moot and academic, but insofar only as petitioners participation in such political
exercise is concerned. The broader and transcendental issue tendered or subsumed in the petition, i.e., the propriety of allowing "duals" to participate and vote as absentee
voter in future elections, however, remains unresolved.

Observing the petitioners and the COMELECs respective formulations of the issues, the same may be reduced into the question of whether or not petitioners and others who
might have meanwhile retained and/or reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee voter under R.A. 9189.

The Court resolves the poser in the affirmative, and thereby accords merit to the petition.

In esse, this case is all about suffrage. A quick look at the governing provisions on the right of suffrage is, therefore, indicated.

We start off with Sections 1 and 2 of Article V of the Constitution, respectively reading as follows:

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. xxx.

SEC 2. The Congress shall provide a system for absentee voting by qualified Filipinos abroad.

In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general eligibility factor for the right to vote. On the other hand, Section 2 authorizes Congress
to devise a system wherein an absentee may vote, implying that a non-resident may, as an exception to the residency prescription in the preceding section, be allowed to vote.

In response to its above mandate, Congress enacted R.A. 9189 - the OAVL 8 - identifying in its Section 4 who can vote under it and in the following section who cannot, as
follows:

Section 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.

Section 5. Disqualifications. The following shall be disqualified from voting under this Act:

(a) Those who have lost their Filipino citizenship in accordance with Philippine laws;

(b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country;

(c) Those who have [been] 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 been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, .;

(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 the 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 . (Words in bracket added.)

Notably, Section 5 lists those who cannot avail themselves of the absentee voting mechanism. However, Section 5(d) of the enumeration respecting Filipino immigrants and
permanent residents in another country opens an exception and qualifies the disqualification rule. Section 5(d) would, however, face a constitutional challenge on the ground
that, as narrated in Macalintal, 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. [The challenger] cites Caasi vs. Court of Appeals 9 to support his claim [where] the Court held
that a "green card" holder immigrant to the [US] is deemed to have abandoned his domicile and residence in the Philippines.

[The challenger] 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. 10 (Words in bracket added.)

As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A. 9189 mainly on the strength of the following premises:

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 one's 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 [the challenger], 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." 11

13
Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress enacted R.A. 9225 the relevant portion of which reads:

SEC. 2. Declaration of Policy. It is hereby declared the policy of the State that all Philippine citizens who become citizens of another country shall be deemed not to have
lost their Philippine citizenship under the conditions of this Act.

SEC. 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of
allegiance to the Republic:

xxx xxx xxx

Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.

SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine
citizenship upon effectivity of this Act shall be deemed citizens of the Philippines.

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

(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as
"The Overseas Absentee Voting Act of 2003" and other existing laws;

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at
the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship ;

3) xxx xxx xxx.

(4) xxx xxx xxx;

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens.

After what appears to be a successful application for recognition of Philippine citizenship under R.A. 9189, petitioners now invoke their right to enjoy political rights,
specifically the right of suffrage, pursuant to Section 5 thereof.

Opposing the petitioners bid, however, respondent COMELEC invites attention to the same Section 5 (1) providing that "duals" can enjoy their right to vote, as an adjunct to
political rights, only if they meet the requirements of Section 1, Article V of the Constitution, R.A. 9189 and other existing laws. Capitalizing on what at first blush is the
clashing provisions of the aforecited provision of the Constitution, which, to repeat, requires residency in the Philippines for a certain period, and R.A. 9189 which grants a
Filipino non-resident absentee voting rights, 12 COMELEC argues:

4. DUALS MUST FIRST ESTABLISH THEIR DOMICILE/ RESIDENCE IN THE PHILIPPINES

4.01. The inclusion of such additional and specific requirements in RA 9225 is logical. The duals, upon renouncement of their Filipino citizenship and acquisition of foreign
citizenship, have practically and legally abandoned their domicile and severed their legal ties to the homeland as a consequence. Having subsequently acquired a second
citizenship (i.e., Filipino) then, duals must, for purposes of voting, first of all, decisively and definitely establish their domicile through positive acts; 13

The Court disagrees.

As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to actually establish residence and physically stay in the Philippines first
before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that "duals" are most likely non-residents, grants under its Section 5(1)
the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible
all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote. Thus, wrote the Court in
Macalintal:

It is clear from these discussions of the Constitutional Commission that [it] intended to enfranchise as much as possible all Filipino citizens abroad who have not
abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents domicile of origin is in the
Philippines, and consider them qualified as voters for the first time.

It is in pursuance of that intention that the Commission provided for Section 2 [Article V] immediately after the residency requirement of Section 1. By the doctrine of
necessary implication in statutory construction, , 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:

14
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 .

xxx xxx xxx

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 one's 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.

xxx xxx xxx

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 . 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. .

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.

xxx xxx xxx

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 "residency" has been interpreted as synonymous with "domicile."

But the third more practical reason, 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. 14 (Emphasis and words in bracket added; citations omitted)

Lest it be overlooked, no less than the COMELEC itself admits that the Citizenship Retention and Re-Acquisition Act expanded the coverage of overseas absentee voting.
According to the poll body:

1.05 With the passage of RA 9225 the scope of overseas absentee voting has been consequently expanded so as to include Filipinos who are also citizens of other countries,
subject, however, to the strict prerequisites indicated in the pertinent provisions of RA 9225; 15

Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the scope of that law with the passage of R.A. 9225, the irresistible conclusion is that
"duals" may now exercise the right of suffrage thru the absentee voting scheme and as overseas absentee voters. R.A. 9189 defines the terms adverted to in the following
wise:

"Absentee Voting" refers to the process by which qualified citizens of the Philippines abroad exercise their right to vote;

"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;

While perhaps not determinative of the issue tendered herein, we note that the expanded thrust of R.A. 9189 extends also to what might be tag as the next generation of
"duals". This may be deduced from the inclusion of the provision on derivative citizenship in R.A. 9225 which reads:

15
SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine
citizenship upon effectivity of this Act shall be deemed citizens of the Philippines.

It is very likely that a considerable number of those unmarried children below eighteen (18) years of age had never set foot in the Philippines. Now then, if the next
generation of "duals" may nonetheless avail themselves the right to enjoy full civil and political rights under Section 5 of the Act, then there is neither no rhyme nor reason
why the petitioners and other present day "duals," provided they meet the requirements under Section 1, Article V of the Constitution in relation to R.A. 9189, be denied the
right of suffrage as an overseas absentee voter. Congress could not have plausibly intended such absurd situation.

WHEREFORE, the instant petition is GRANTED. Accordingly, the Court rules and so holds that those who retain or re-acquire Philippine citizenship under Republic Act No.
9225, the Citizenship Retention and Re-Acquisition Act of 2003, may exercise the right to vote under the system of absentee voting in Republic Act No. 9189, the Overseas
Absentee Voting Act of 2003.

SO ORDERED.

EN BANC

[G.R. No. 93867 : December 18, 1990.]

192 SCRA 358

SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity as ACTING CHAIRPERSON of the COMMISSION
ON ELECTIONS, Respondent.

DECISION

CRUZ, J.:

The petitioner is challenging the designation by the President of the Philippines of Associate Commissioner Haydee B. Yorac as Acting
Chairman of the Commission on Elections, in place of Chairman Hilario B. Davide, who had been named chairman of the fact-finding
commission to investigate the December 1989 coup d' etat attempt.

The qualifications of the respondent are conceded by the petitioner and are not in issue in this case. What is the power of the President of
the Philippines to make the challenged designation in view of the status of the Commission on Elections as an independent constitutional
body and the specific provision of Article IX-C, Section 1(2) of the Constitution that "(I)n no case shall any Member (of the Commission
on Elections) be appointed or designated in a temporary or acting capacity."

The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President Elpidio Quirino designated the Solicitor
General as acting member of the Commission on Elections and the Court revoked the designation as contrary to the Constitution. It is
also alleged that the respondent is not even the senior member of the Commission on Elections, being outranked by Associate
Commissioner Alfredo E. Abueg, Jr.:-cralaw

The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is an internal matter that should be
resolved by the members themselves and that the intrusion of the President of the Philippines violates their independence. He cites the
practice in this Court, where the senior Associate Justice serves as Acting Chief Justice in the absence of the Chief Justice. No designation
from the President of the Philippines is necessary.

In his Comment, the Solicitor General argues that no such designation is necessary in the case of the Supreme Court because the
temporary succession cited is provided for in Section 12 of the Judiciary Act of 1948. A similar rule is found in Section 5 of BP 129 for the
Court of Appeals. There is no such arrangement, however, in the case of the Commission on Elections. The designation made by the
President of the Philippines should therefore be sustained for reasons of "administrative expediency," to prevent disruption of the
functions of the COMELEC.

Expediency is a dubious justification. It may also be an overstatement to suggest that the operations of the Commission on Elections
would have been disturbed or stalemated if the President of the Philippines had not stepped in and designated an Acting Chairman. There
did not seem to be any such problem. In any event, even assuming that difficulty, we do not agree that "only the President (could) act to
fill the hiatus," as the Solicitor General maintains.

Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as "independent." Although essentially
executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions. Each
of these Commissions conducts its own proceedings under the applicable laws and its own rules and in the exercise of its own discretion.
Its decisions, orders and rulings are subject only to review on Certiorari by this Court as provided by the Constitution in Article IX-A,
Section 7.

The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That discretion cannot be
exercised for it, even with its consent, by the President of the Philippines.

A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established
to justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may
be withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its withdrawal.chanrobles virtual law library

16
It is true, as the Solicitor General points out, that the respondent cannot be removed at will from her permanent position as Associate
Commissioner. It is no less true, however, that she can be replaced as Acting Chairman, with or without cause, and thus deprived of the
powers and perquisites of that temporary position.

The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to fill the void by extending
the temporary designation in favor of the respondent. This is still a government of laws and not of men. The problem allegedly sought to
be corrected, if it existed at all, did not call for presidential action. The situation could have been handled by the members of the
Commission on Elections themselves without the participation of the President, however well-meaning.

In the choice of the Acting Chairman, the members of the Commission on Elections would most likely have been guided by the seniority
rule as they themselves would have appreciated it. In any event, that choice and the basis thereof were for them and not the President to
make.

The Court has not the slightest doubt that the President of the Philippines was moved only by the best of motives when she issued the
challenged designation. But while conceding her goodwill, we cannot sustain her act because it conflicts with the Constitution. Hence,
even as this Court revoked the designation in the Bautista case, so too must it annul the designation in the case at bar.

The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the
security of tenure of its members. That guaranty is not available to the respondent as Acting Chairman of the Commission on Elections by
designation of the President of the Philippines.

WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. Yorac as Acting Chairman of the Commission
on Elections is declared UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from serving as such. This is without
prejudice to the incumbent Associate Commissioners of the Commission on Elections restoring her to the same position if they so desire,
or choosing another member in her place, pending the appointment of a permanent Chairman by the President of the Philippines with the
consent of the Commission on Appointments.: rd

SO ORDERED.

Fernan C . J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and
Regalado, JJ., concur.

Feliciano, J., is on leave.

Sarmiento, J., took no part.

G.R. No. 149036 April 2, 2002

MA. J. ANGELINA G. MATIBAG, petitioner,

vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA J. CINCO, and GIDEON C. DE GUZMAN in his capacity
as Officer-In-Charge, Finance Services Department of the Commission on Elections, respondents.

CARPIO, J.:

The Case

Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction and a temporary restraining order under Rule 65 of the 1997
Rules of Civil Procedure. Petitioner Ma. J. Angelina G. Matibag ("Petitioner" for brevity) questions the constitutionality of the appointment and the right to hold office of the
following: (1) Alfredo L. Benipayo ("Benipayo" for brevity) as Chairman of the Commission on Elections ("COMELEC" for brevity); and (2) Resurreccion Z. Borra ("Borra"
for brevity) and Florentino A. Tuason, Jr. ("Tuason" for brevity) as COMELEC Commissioners. Petitioner also questions the legality of the appointment of Velma J. Cinco1
("Cinco" for brevity) as Director IV of the COMELECs Education and Information Department ("EID" for brevity).

The Facts

On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of the EID. On February 15, 2000, then Chairperson Harriet O. Demetriou
renewed the appointment of petitioner as Director IV of EID in a "Temporary" capacity. On February 15, 2001, Commissioner Rufino S.B. Javier renewed again the
appointment of petitioner to the same position in a "Temporary" capacity.2

On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC Chairman,3 and Borra4 and Tuason5 as COMELEC Commissioners,
each for a term of seven years and all expiring on February 2, 2008. Benipayo took his oath of office and assumed the position of COMELEC Chairman. Borra and Tuason
likewise took their oaths of office and assumed their positions as COMELEC Commissioners. The Office of the President submitted to the Commission on Appointments on
May 22, 2001 the ad interim appointments of Benipayo, Borra and Tuason for confirmation.6 However, the Commission on Appointments did not act on said appointments.

On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the same positions and for the same term of seven years, expiring
on February 2, 2008.7 They took their oaths of office for a second time. The Office of the President transmitted on June 5, 2001 their appointments to the Commission on
Appointments for confirmation.8

Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on June 8, 2001, President Macapagal Arroyo renewed again the ad
interim appointments of Benipayo, Borra and Tuason to the same positions.9 The Office of the President submitted their appointments for confirmation to the Commission on
Appointments.10 They took their oaths of office anew.

In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 200111 addressed to petitioner as Director IV of the EID and to Cinco as Director
III also of the EID, designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department. COMELEC EID Commissioner-in-Charge Mehol K.
Sadain objected to petitioners reassignment in a Memorandum dated April 14, 200112 addressed to the COMELEC en banc. Specifically, Commissioner Sadain questioned
Benipayos failure to consult the Commissioner-in-Charge of the EID in the reassignment of petitioner.

17
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her reassignment to the Law Department.13 Petitioner cited Civil
Service Commission Memorandum Circular No. 7 dated April 10, 2001, reminding heads of government offices that "transfer and detail of employees are prohibited during
the election period beginning January 2 until June 13, 2001." Benipayo denied her request for reconsideration on April 18, 2001,14 citing COMELEC Resolution No. 3300
dated November 6, 2000, which states in part:

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code and other election
laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and
transfer or reassign its personnel, when necessary in the effective performance of its mandated functions during the prohibited period, provided that the changes in
the assignment of its field personnel within the thirty-day period before election day shall be effected after due notice and hearing."

Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum dated April 23, 2001.15 Petitioner also filed an administrative
and criminal complaint16 with the Law Department17 against Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus Election Code, COMELEC
Resolution No. 3258, Civil Service Memorandum Circular No. 07, s. 001, and other pertinent administrative and civil service laws, rules and regulations.

During the pendency of her complaint before the Law Department, petitioner filed the instant petition questioning the appointment and the right to remain in office of
Benipayo, Borra and Tuason, as Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim appointments of Benipayo, Borra and
Tuason violate the constitutional provisions on the independence of the COMELEC, as well as on the prohibitions on temporary appointments and reappointments of its
Chairman and members. Petitioner also assails as illegal her removal as Director IV of the EID and her reassignment to the Law Department. Simultaneously, petitioner
challenges the designation of Cinco as Officer-in-Charge of the EID. Petitioner, moreover, questions the legality of the disbursements made by COMELEC Finance Services
Department Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and other emoluments.

In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad interim appointments of Benipayo as COMELEC Chairman and Borra and
Tuason as Commissioners, respectively, for a term of seven years expiring on February 2, 2008.18 They all took their oaths of office anew.

The Issues

The issues for resolution of this Court are as follows:

1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of judicial review in constitutional cases;

2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interim appointments issued by the President amounts to a temporary
appointment prohibited by Section 1 (2), Article IX-C of the Constitution;

3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are legal, whether or not the renewal of their ad interim
appointments and subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution;

4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID and her reassignment to the Law Department is illegal and without authority,
having been done without the approval of the COMELEC as a collegial body;

5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in continuing to make disbursements in favor of Benipayo, Borra, Tuason and
Cinco, is acting in excess of jurisdiction.

First Issue: Propriety of Judicial Review

Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its power of judicial review in constitutional cases. Out of respect for
the acts of the Executive department, which is co-equal with this Court, respondents urge this Court to refrain from reviewing the constitutionality of the ad interim
appointments issued by the President to Benipayo, Borra and Tuason unless all the four requisites are present. These are: (1) the existence of an actual and appropriate
controversy; (2) a personal and substantial interest of the party raising the constitutional issue; (3) the exercise of the judicial review is pleaded at the earliest opportunity; and
(4) the constitutional issue is the lis mota of the case.19 Respondents argue that the second, third and fourth requisites are absent in this case. Respondents maintain that
petitioner does not have a personal and substantial interest in the case because she has not sustained a direct injury as a result of the ad interim appointments of Benipayo,
Borra and Tuason and their assumption of office. Respondents point out that petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo,
Borra or Tuason. Neither does petitioner claim to be directly injured by the appointments of these three respondents.

Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments at the earliest opportunity. Petitioner filed the petition only on
August 3, 2001 despite the fact that the ad interim appointments of Benipayo, Borra and Tuason were issued as early as March 22, 2001. Moreover, the petition was filed
after the third time that these three respondents were issued ad interim appointments.

Respondents insist that the real issue in this case is the legality of petitioners reassignment from the EID to the Law Department. Consequently, the constitutionality of the
ad interim appointments is not the lis mota of this case.

We are not persuaded.

Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department, where she was placed on detail service.20 Respondents claim that the
reassignment was "pursuant to x x x Benipayos authority as Chairman of the Commission on Elections, and as the Commissions Chief Executive Officer."21 Evidently,
respondents anchor the legality of petitioners reassignment on Benipayos authority as Chairman of the COMELEC. The real issue then turns on whether or not Benipayo is
the lawful Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is without legal basis if Benipayo is not the lawful
COMELEC Chairman, an office created by the Constitution.

On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance with the Constitution, then petitioners reassignment is legal and
she has no cause to complain provided the reassignment is in accordance with the Civil Service Law. Clearly, petitioner has a personal and material stake in the resolution of
the constitutionality of Benipayos assumption of office. Petitioners personal and substantial injury, if Benipayo is not the lawful COMELEC Chairman, clothes her with the
requisite locus standi to raise the constitutional issue in this petition.

18
Respondents harp on petitioners belated act of questioning the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant
petition only on August 3, 2001, when the first ad interim appointments were issued as early as March 22, 2001. However, it is not the date of filing of the petition that
determines whether the constitutional issue was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a
competent court that can resolve the same, such that, "if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial, it cannot be
considered on appeal."22 Petitioner questioned the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason when she filed her petition before this
Court, which is the earliest opportunity for pleading the constitutional issue before a competent body. Furthermore, this Court may determine, in the exercise of sound
discretion, the time when a constitutional issue may be passed upon.23 There is no doubt petitioner raised the constitutional issue on time.

Moreover, the legality of petitioners reassignment hinges on the constitutionality of Benipayos ad interim appointment and assumption of office. Unless the constitutionality
of Benipayos ad interim appointment and assumption of office is resolved, the legality of petitioners reassignment from the EID to the Law Department cannot be
determined. Clearly, the lis mota of this case is the very constitutional issue raised by petitioner.

In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the directives and decisions made by the COMELEC in the conduct of the
May 14, 2001 national elections may be put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with this Courts duty to determine whether
other agencies of government have remained within the limits of the Constitution and have not abused the discretion given them, this Court may even brush aside
technicalities of procedure and resolve any constitutional issue raised.24 Here the petitioner has complied with all the requisite technicalities. Moreover, public interest
requires the resolution of the constitutional issue raised by petitioner.

Second Issue: The Nature of an Ad Interim Appointment

Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited by Section 1 (2), Article IX-C of the Constitution, which
provides as follows:

"The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without
reappointment. 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." (Emphasis supplied)

Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her pleasure, and can even be disapproved or simply by-passed by
the Commission on Appointments. For this reason, petitioner claims that an ad interim appointment is temporary in character and consequently prohibited by the last sentence
of Section 1 (2), Article IX-C of the Constitution.

Based on petitioners theory, there can be no ad interim appointment to the COMELEC or to the other two constitutional commissions, namely the Civil Service Commission
and the Commission on Audit. The last sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B and Article IX-D providing for the creation of
the Civil Service Commission and the Commission on Audit, respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad interim
appointee cannot assume office until his appointment is confirmed by the Commission on Appointments for only then does his appointment become permanent and no longer
temporary in character.

The rationale behind petitioners theory is that only an appointee who is confirmed by the Commission on Appointments can guarantee the independence of the COMELEC.
A confirmed appointee is beyond the influence of the President or members of the Commission on Appointments since his appointment can no longer be recalled or
disapproved. Prior to his confirmation, the appointee is at the mercy of both the appointing and confirming powers since his appointment can be terminated at any time for
any cause. In the words of petitioner, a Sword of Damocles hangs over the head of every appointee whose confirmation is pending with the Commission on Appointments.

We find petitioners argument without merit.

An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified
into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim
appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. The second
paragraph of Section 16, Article VII of the Constitution provides as follows:

"The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." (Emphasis supplied)

Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. The
fear that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis.

More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. In Summers vs. Ozaeta,25 decided on October 25, 1948,
we held that:

"x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the Constitution, which provides that the President shall
have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress. It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by
the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its
provisional period has expired. Said appointment is of course distinguishable from an acting appointment which is merely temporary, good until another
permanent appointment is issued." (Emphasis supplied)

The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim appointment takes effect immediately. The appointee can at
once assume office and exercise, as a de jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on Appointments,26 this Court
elaborated on the nature of an ad interim appointment as follows:

"A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on Appointments when Congress is
in session and when it is in recess. In the former, the President nominates, and only upon the consent of the Commission on Appointments may the person thus
named assume office. It is not so with reference to ad interim appointments. It takes effect at once. The individual chosen may thus qualify and perform his
function without loss of time. His title to such office is complete. In the language of the Constitution, the appointment is effective until disapproval by the
Commission on Appointments or until the next adjournment of the Congress."

19
Petitioner cites Blacks Law Dictionary which defines the term "ad interim" to mean "in the meantime" or "for the time being." Hence, petitioner argues that an ad interim
appointment is undoubtedly temporary in character. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court,27 where we explained that:

"x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent had been extended several ad
interim appointments which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word ad interim which
creates such belief. The term is defined by Black to mean "in the meantime" or "for the time being". Thus, an officer ad interim is one appointed to fill a vacancy, or to
discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Blacks Law Dictionary, Revised Fourth Edition, 1978). But such is not
the meaning nor the use intended in the context of Philippine law. In referring to Dr. Estebans appointments, the term is not descriptive of the nature of the appointments
given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the
Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. x x x." (Emphasis supplied)

Thus, the term "ad interim appointment", as used in letters of appointment signed by the President, means a permanent appointment made by the President in the meantime
that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text of the
Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again occasion to explain the nature of an ad interim appointment in the
more recent case of Marohombsar vs. Court of Appeals,28 where the Court stated:

"We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the
appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. In the instant case, the appointment extended
to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent status of private respondents
appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No. 12. Petitioners submission that
private respondents ad interim appointment is synonymous with a temporary appointment which could be validly terminated at any time is clearly untenable. Ad
interim appointments are permanent but their terms are only until the Board disapproves them." (Emphasis supplied)

An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the
constitutional protection that "[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law."29 Thus, an ad interim
appointment becomes complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad interim appointment is possible only if it
is communicated to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office.30 Once an appointee has
qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing,
consistent with the requirements of due process.

An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim appointment by the Commission
on Appointments. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment. These two causes are resolutory
conditions expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad
interim appointees. No one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees.

While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting capacity can be withdrawn
or revoked at the pleasure of the appointing power.31 A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is the kind of
appointment that the Constitution prohibits the President from making to the three independent constitutional commissions, including the COMELEC. Thus, in Brillantes vs.
Yorac,32 this Court struck down as unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of
the COMELEC. This Court ruled that:

"A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to justify its
revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of
the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from
challenging its withdrawal.

xxx

The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the security of tenure of its
members. That guarantee is not available to the respondent as Acting Chairman of the Commission on Elections by designation of the President of the
Philippines."

Earlier, in Nacionalista Party vs. Bautista,33 a case decided under the 1935 Constitution, which did not have a provision prohibiting temporary or acting appointments to the
COMELEC, this Court nevertheless declared unconstitutional the designation of the Solicitor General as acting member of the COMELEC. This Court ruled that the
designation of an acting Commissioner would undermine the independence of the COMELEC and hence violate the Constitution. We declared then: "It would be more in
keeping with the intent, purpose and aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily." (Emphasis
supplied)

In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the COMELEC, subject only to confirmation by the Commission on
Appointments. Benipayo, Borra and Tuason were extended permanent appointments during the recess of Congress. They were not appointed or designated in a temporary or
acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs. Yorac34 and Solicitor General Felix Bautista in Nacionalista Party vs. Bautista.35 The ad interim
appointments of Benipayo, Borra and Tuason are expressly allowed by the Constitution which authorizes the President, during the recess of Congress, to make appointments
that take effect immediately.

While the Constitution mandates that the COMELEC "shall be independent"36 , this provision should be harmonized with the Presidents power to extend ad interim
appointments. To hold that the independence of the COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the appointees can
assume office will negate the Presidents power to make ad interim appointments. This is contrary to the rule on statutory construction to give meaning and effect to every
provision of the law. It will also run counter to the clear intent of the framers of the Constitution.

The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to confirmation by the Commission on Appointments - did not provide
for ad interim appointments. The original intention of the framers of the Constitution was to do away with ad interim appointments because the plan was for Congress to
remain in session throughout the year except for a brief 30-day compulsory recess. However, because of the need to avoid disruptions in essential government services, the
framers of the Constitution thought it wise to reinstate the provisions of the 1935 Constitution on ad interim appointments. The following discussion during the deliberations
of the Constitutional Commission elucidates this:

20
 "FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it necessary to provide for ad interim appointments? Perhaps
there should be a little discussion on that.

xxx

MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in terms of anticipating interruption of government business,
considering that we are not certain of the length of involuntary recess or adjournment of the Congress. We are certain, however, of the involuntary adjournment of
the Congress which is 30 days, but we cannot leave to conjecture the matter of involuntary recess.

FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner has a formula x x x.

xxx

MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after conferring with the Committee, Commissioner Aquino and I
propose the following amendment as the last paragraph of Section 16, the wordings of which are in the 1935 Constitution: THE PRESIDENT SHALL HAVE
THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE VOLUNTARY OR COMPULSORY BUT SUCH
APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT
ADJOURNMENT OF THE CONGRESS.

This is otherwise called the ad interim appointments.

xxx

THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and Bengzon, adding a paragraph to the last paragraph of
Section 16? (Silence) The Chair hears none; the amendment is approved."37 (Emphasis supplied)

Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the President was for the purpose of avoiding interruptions in vital government
services that otherwise would result from prolonged vacancies in government offices, including the three constitutional commissions. In his concurring opinion in Guevara
vs. Inocentes,38 decided under the 1935 Constitution, Justice Roberto Concepcion, Jr. explained the rationale behind ad interim appointments in this manner:

"Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the session of Congress, the evil sought to be avoided
interruption in the discharge of essential functions may take place. Because the same evil would result if the appointments ceased to be effective during the
session of Congress and before its adjournment. Upon the other hand, once Congress has adjourned, the evil aforementioned may easily be conjured by the
issuance of other ad interim appointments or reappointments." (Emphasis supplied)

Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely avoided the interruption of essential government services in the May
2001 national elections. Following the decision of this Court in Gaminde vs. Commission on Appointments,39 promulgated on December 13, 2000, the terms of office of
constitutional officers first appointed under the Constitution would have to be counted starting February 2, 1987, the date of ratification of the Constitution, regardless of the
date of their actual appointment. By this reckoning, the terms of office of three Commissioners of the COMELEC, including the Chairman, would end on February 2,
2001.40

Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve, pursuant to her appointment papers, until February 15, 2002,41 the
original expiry date of the term of her predecessor, Justice Bernardo P. Pardo, who was elevated to this Court. The original expiry date of the term of Commissioner Teresita
Dy-Liacco Flores was also February 15, 2002, while that of Commissioner Julio F. Desamito was November 3, 2001.42 The original expiry dates of the terms of office of
Chairperson Demetriou and Commissioners Flores and Desamito were therefore supposed to fall after the May 2001 elections. Suddenly and unexpectedly, because of the
Gaminde ruling, there were three vacancies in the seven-person COMELEC, with national elections looming less than three and one-half months away. To their credit,
Chairperson Demetriou and Commissioner Flores vacated their offices on February 2, 2001 and did not question any more before this Court the applicability of the Gaminde
ruling to their own situation.

In a Manifestation43 dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson Demetriou stated that she was vacating her office on February 2, 2001,
as she believed any delay in choosing her successor might create a "constitutional crisis" in view of the proximity of the May 2001 national elections. Commissioner
Desamito chose to file a petition for intervention44 in the Gaminde case but this Court denied the intervention. Thus, Commissioner Desamito also vacated his office on
February 2, 2001.

During an election year, Congress normally goes on voluntary recess between February and June considering that many of the members of the House of Representatives and
the Senate run for re-election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001.45 Concededly, there was no more time for Benipayo, Borra
and Tuason, who were originally extended ad interim appointments only on March 22, 2001, to be confirmed by the Commission on Appointments before the May 14, 2001
elections.

If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the COMELEC, there would only have been one division
functioning in the COMELEC instead of two during the May 2001 elections. Considering that the Constitution requires that "all x x x election cases shall be heard and
decided in division",46 the remaining one division would have been swamped with election cases. Moreover, since under the Constitution motions for reconsideration "shall
be decided by the Commission en banc", the mere absence of one of the four remaining members would have prevented a quorum, a less than ideal situation considering that
the Commissioners are expected to travel around the country before, during and after the elections. There was a great probability that disruptions in the conduct of the May
2001 elections could occur because of the three vacancies in the COMELEC. The successful conduct of the May 2001 national elections, right after the tumultuous EDSA II
and EDSA III events, was certainly essential in safeguarding and strengthening our democracy.

Evidently, the exercise by the President in the instant case of her constitutional power to make ad interim appointments prevented the occurrence of the very evil sought to be
avoided by the second paragraph of Section 16, Article VII of the Constitution. This power to make ad interim appointments is lodged in the President to be exercised by her
in her sound judgment. Under the second paragraph of Section 16, Article VII of the Constitution, the President can choose either of two modes in appointing officials who
are subject to confirmation by the Commission on Appointments. First, while Congress is in session, the President may nominate the prospective appointee, and pending
consent of the Commission on Appointments, the nominee cannot qualify and assume office. Second, during the recess of Congress, the President may extend an ad interim
appointment which allows the appointee to immediately qualify and assume office.

21
Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a matter within the prerogative of the President because the
Constitution grants her that power. This Court cannot inquire into the propriety of the choice made by the President in the exercise of her constitutional power, absent grave
abuse of discretion amounting to lack or excess of jurisdiction on her part, which has not been shown in the instant case.

The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. Former President Corazon Aquino issued an ad interim appointment to
Commissioner Alfredo E. Abueg.47 Former President Fidel V. Ramos extended ad interim appointments to Commissioners Julio F. Desamito, Japal M. Guiani, Graduacion A.
Reyes-Claravall and Manolo F. Gorospe.48 Former President Joseph Estrada also extended ad interim appointments to Commissioners Abdul Gani M. Marohombsar,
Luzviminda Tancangco, Mehol K. Sadain and Ralph C. Lantion.49

The Presidents power to extend ad interim appointments may indeed briefly put the appointee at the mercy of both the appointing and confirming powers. This situation,
however, is only for a short period - from the time of issuance of the ad interim appointment until the Commission on Appointments gives or withholds its consent. The
Constitution itself sanctions this situation, as a trade-off against the evil of disruptions in vital government services. This is also part of the check-and-balance under the
separation of powers, as a trade-off against the evil of granting the President absolute and sole power to appoint. The Constitution has wisely subjected the Presidents
appointing power to the checking power of the legislature.

This situation, however, does not compromise the independence of the COMELEC as a constitutional body. The vacancies in the COMELEC are precisely staggered to insure
that the majority of its members hold confirmed appointments, and not one President will appoint all the COMELEC members.50 In the instant case, the Commission on
Appointments had long confirmed four51 of the incumbent COMELEC members, comprising a majority, who could now be removed from office only by impeachment. The
special constitutional safeguards that insure the independence of the COMELEC remain in place.52 The COMELEC enjoys fiscal autonomy, appoints its own officials and
employees, and promulgates its own rules on pleadings and practice. Moreover, the salaries of COMELEC members cannot be decreased during their tenure.

In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason, as COMELEC Chairman and Commissioners, respectively, do not
constitute temporary or acting appointments prohibited by Section 1 (2), Article IX-C of the Constitution.

Third Issue: The Constitutionality of Renewals of Appointments

Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are constitutional, the renewal of the
their ad interim appointments and their subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of
the Constitution, which provides as follows:

"The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last members for three
years, without reappointment. X x x." (Emphasis supplied)

Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments, his ad interim appointment can no longer be renewed because this
will violate Section 1 (2), Article IX-C of the Constitution which prohibits reappointments. Petitioner asserts that this is particularly true to permanent appointees who have
assumed office, which is the situation of Benipayo, Borra and Tuason if their ad interim appointments are deemed permanent in character.

There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be extended a new appointment. The disapproval is a final
decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision on the merits,
being a refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for
any appeal from such decision, the disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the President can no longer renew
the appointment not because of the constitutional prohibition on reappointment, but because of a final decision by the Commission on Appointments to withhold its consent to
the appointment.

An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed appointment is
one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the
Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad
interim appointment of a by-passed appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments, which provides as follows:

"Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or appointments submitted by the President of the Philippines which
are not finally acted upon at the close of the session of Congress shall be returned to the President and, unless new nominations or appointments are made, shall
not again be considered by the Commission." (Emphasis supplied)

Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered again if the President renews the appointment.

It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his
concurring opinion in Guevara vs. Inocentes53 why by-passed ad interim appointees could be extended new appointments, thus:

"In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the incumbent can not continue holding office over the
positive objection of the Commission. It ceases, also, upon "the next adjournment of the Congress", simply because the President may then issue new
appointments - not because of implied disapproval of the Commission deduced from its inaction during the session of Congress, for, under the Constitution, the
Commission may affect adversely the interim appointments only by action, never by omission. If the adjournment of Congress were an implied disapproval of ad
interim appointments made prior thereto, then the President could no longer appoint those so by-passed by the Commission. But, the fact is that the President
may reappoint them, thus clearly indicating that the reason for said termination of the ad interim appointments is not the disapproval thereof allegedly inferred
from said omission of the Commission, but the circumstance that upon said adjournment of the Congress, the President is free to make ad interim appointments
or reappointments." (Emphasis supplied)

Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article VII of the present Constitution on ad interim appointments was
lifted verbatim.54 The jurisprudence under the 1935 Constitution governing ad interim appointments by the President is doubtless applicable to the present Constitution. The
established practice under the present Constitution is that the President can renew the appointments of by-passed ad interim appointees. This is a continuation of the well-
recognized practice under the 1935 Constitution, interrupted only by the 1973 Constitution which did not provide for a Commission on Appointments but vested sole
appointing power in the President.

The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim appointments. A disapproved ad
interim appointment cannot be revived by another ad interim appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a

22
reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment
because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed
term of seven years.

Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners shall be appointed x x x for a term of seven years without
reappointment." (Emphasis supplied) There are four situations where this provision will apply. The first situation is where an ad interim appointee to the COMELEC, after
confirmation by the Commission on Appointments, serves his full seven-year term. Such person cannot be reappointed to the COMELEC, whether as a member or as a
chairman, because he will then be actually serving more than seven years. The second situation is where the appointee, after confirmation, serves a part of his term and then
resigns before his seven-year term of office ends. Such person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than seven years. The third situation is where the appointee is confirmed to serve the unexpired term of someone
who died or resigned, and the appointee completes the unexpired term. Such person cannot be reappointed, whether as a member or chair, to a vacancy arising from
retirement because a reappointment will result in the appointee also serving more than seven years.

The fourth situation is where the appointee has previously served a term of less than seven years, and a vacancy arises from death or resignation. Even if it will not result in
his serving more than seven years, a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed under
the second sentence of Section 1 (2), Article IX-C of the Constitution. This provision refers to the first appointees under the Constitution whose terms of office are less than
seven years, but are barred from ever being reappointed under any situation. Not one of these four situations applies to the case of Benipayo, Borra or Tuason.

The framers of the Constitution made it quite clear that any person who has served any term of office as COMELEC member whether for a full term of seven years, a
truncated term of five or three years, or even for an unexpired term of any length of time can no longer be reappointed to the COMELEC. Commissioner Foz succinctly
explained this intent in this manner:

"MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case of Visarra vs. Miraflor, to the effect that the
prohibition on reappointment applies only when the term or tenure is for seven years. But in cases where the appointee serves only for less than seven years, he
would be entitled to reappointment. Unless we put the qualifying words "without reappointment" in the case of those appointed, then it is possible that an
interpretation could be made later on their case, they can still be reappointed to serve for a total of seven years.

Precisely, we are foreclosing that possibility by making it clear that even in the case of those first appointed under the Constitution, no reappointment can be
made."55 (Emphasis supplied)

In Visarra vs. Miraflor,56 Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De Vera57 that a "[r]eappointment is not prohibited when a
Commissioner has held office only for, say, three or six years, provided his term will not exceed nine years in all." This was the interpretation despite the express
provision in the 1935 Constitution that a COMELEC member "shall hold office for a term of nine years and may not be reappointed."

To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1 (2), Article IX-C of the present Constitution. The first phrase prohibits
reappointment of any person previously appointed for a term of seven years. The second phrase prohibits reappointment of any person previously appointed for a term of five
or three years pursuant to the first set of appointees under the Constitution. In either case, it does not matter if the person previously appointed completes his term of office for
the intention is to prohibit any reappointment of any kind.

However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad
interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could
start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the
confirming power of the Commission on Appointments.

The phrase "without reappointment" applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such
person completes his term of office. There must be a confirmation by the Commission on Appointments of the previous appointment before the prohibition on reappointment
can apply. To hold otherwise will lead to absurdities and negate the Presidents power to make ad interim appointments.

In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad interim appointments first issued to appointees. If such ad
interim appointments can no longer be renewed, the President will certainly hesitate to make ad interim appointments because most of her appointees will effectively be
disapproved by mere inaction of the Commission on Appointments. This will nullify the constitutional power of the President to make ad interim appointments, a power
intended to avoid disruptions in vital government services. This Court cannot subscribe to a proposition that will wreak havoc on vital government services.

The prohibition on reappointment is common to the three constitutional commissions. The framers of the present Constitution prohibited reappointments for two reasons. The
first is to prevent a second appointment for those who have been previously appointed and confirmed even if they served for less than seven years. The second is to insure
that the members of the three constitutional commissions do not serve beyond the fixed term of seven years. As reported in the Journal of the Constitutional Commission,
Commissioner Vicente B. Foz, who sponsored58 the proposed articles on the three constitutional commissions, outlined the four important features of the proposed articles,
to wit:

"Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the three Constitutional Commissions, and which are: 1)
fiscal autonomy which provides (that) appropriations shall be automatically and regularly released to the Commission in the same manner (as) provided for the
Judiciary; 2) fixed term of office without reappointment on a staggered basis to ensure continuity of functions and to minimize the opportunity of the President to
appoint all the members during his incumbency; 3) prohibition to decrease salaries of the members of the Commissions during their term of office; and 4)
appointments of members would not require confirmation."59 (Emphasis supplied)

There were two important amendments subsequently made by the Constitutional Commission to these four features. First, as discussed earlier, the framers of the Constitution
decided to require confirmation by the Commission on Appointments of all appointments to the constitutional commissions. Second, the framers decided to strengthen further
the prohibition on serving beyond the fixed seven-year term, in the light of a former chair of the Commission on Audit remaining in office for 12 years despite his fixed term
of seven years. The following exchange in the deliberations of the Constitutional Commission is instructive:

"MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsors attention, first of all, to Section 2 (2) on the Civil Service
Commission wherein it is stated: "In no case shall any Member be appointed in a temporary or acting capacity." I detect in the Committees proposed resolutions
a constitutional hangover, if I may use the term, from the past administration. Am I correct in concluding that the reason the Committee introduced this particular
provision is to avoid an incident similar to the case of the Honorable Francisco Tantuico who was appointed in an acting capacity as Chairman of the Commission
on Audit for about 5 years from 1975 until 1980, and then in 1980, was appointed as Chairman with a tenure of another 7 years. So, if we follow that appointment
to (its) logical conclusion, he occupied that position for about 12 years in violation of the Constitution?

23
 MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is appointed to any of the commissions does not serve beyond
7 years."60 (Emphasis supplied)

Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:

"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no reappointment of any kind and, therefore as a whole there is
no way that somebody can serve for more than seven years. The purpose of the last sentence is to make sure that this does not happen by including in the
appointment both temporary and acting capacities."61 (Emphasis supplied)

Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. On the other hand, the prohibition on temporary or acting
appointments is intended to prevent any circumvention of the prohibition on reappointment that may result in an appointees total term of office exceeding seven years. The
evils sought to be avoided by the twin prohibitions are very specific - reappointment of any kind and exceeding ones term in office beyond the maximum period of seven
years.

Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further the screws on those who might wish to extend their terms of office.
Thus, the word "designated" was inserted to plug any loophole that might be exploited by violators of the Constitution, as shown in the following discussion in the
Constitutional Commission:

"MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose to insert the words OR DESIGNATED so that the whole sentence will
read: "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity."

THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?

MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no case shall any Member be appointed in a temporary or acting capacity."

MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a distinction between an appointment and a designation.
The Gentleman will recall that in the case of Commissioner on Audit Tantuico, I think his term exceeded the constitutional limit but the Minister of Justice opined
that it did not because he was only designated during the time that he acted as Commissioner on Audit. So, in order to erase that distinction between appointment
and designation, we should specifically place the word so that there will be no more ambiguity. "In no case shall any Member be appointed OR DESIGNATED in
a temporary or acting capacity."

MR. FOZ: The amendment is accepted, Mr. Presiding Officer.

MR. DE LOS REYES: Thank you.

THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the amendment is approved."62

The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate the prohibition on reappointments because there were
no previous appointments that were confirmed by the Commission on Appointments. A reappointment presupposes a previous confirmed appointment. The same ad interim
appointments and renewals of appointments will also not breach the seven-year term limit because all the appointments and renewals of appointments of Benipayo, Borra
and Tuason are for a fixed term expiring on February 2, 2008.63 Any delay in their confirmation will not extend the expiry date of their terms of office. Consequently, there
is no danger whatsoever that the renewal of the ad interim appointments of these three respondents will result in any of the evils intended to be exorcised by the twin
prohibitions in the Constitution. The continuing renewal of the ad interim appointment of these three respondents, for so long as their terms of office expire on February 2,
2008, does not violate the prohibition on reappointments in Section 1 (2), Article IX-C of the Constitution.

Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Petitioner further argues that only the
COMELEC, acting as a collegial body, can authorize such reassignment. Moreover, petitioner maintains that a reassignment without her consent amounts to removal from
office without due process and therefore illegal.

Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. We have ruled, however, that Benipayo is
the de jure COMELEC Chairman, and consequently he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains effective.
Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative Code, the Chairman of the COMELEC is vested with the following power:

"Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief Executive Officer of the Commission, shall:

xxx

(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of the Civil Service Law." (Emphasis supplied)

The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the
Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval of the COMELEC en banc.

Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as Annexes "X", "Y" and "Z" to her Petition, indisputably show
that she held her Director IV position in the EID only in an acting or temporary capacity.64 Petitioner is not a Career Executive Service (CES) officer, and neither does she
hold Career Executive Service Eligibility, which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications Standards (Revised
1987) issued by the Civil Service Commission.65 Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of Justice Serafin Cuevas vs. Atty.
Josefina G. Bacal,66 this Court held that:

"As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that position cannot be considered permanent,
and she can claim no security of tenure in respect of that position. As held in Achacoso v. Macaraig:

24
 It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is being
appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary.
And being so, it could be withdrawn at will by the appointing authority and at a moments notice, conformably to established jurisprudence x x x.

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not
possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of
it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place, or as an exception to the rule,
may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as
permanent even if it may be so designated x x x."

Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the position of Director IV, petitioner has no legal
basis in claiming that her reassignment was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that a temporary or acting appointment can be
withdrawn or revoked at the pleasure of the appointing power happens to apply squarely to her situation.

Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section 261 (h) of the Omnibus Election Code, which provides as
follows:

"Section 261. Prohibited Acts. The following shall be guilty of an election offense:

xxx

(h) Transfer of officers and employees in the civil service - Any public official who makes or causes any transfer or detail whatever of any officer or employee in
the civil service including public school teachers, within the election period except upon prior approval of the Commission."

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of COMELEC personnel during the election
period.67 Moreover, petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election period.

Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated November 6, 2000,68 exempting the COMELEC from Section
261 (h) of the Omnibus Election Code. The resolution states in part:

"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as follows:

xxx

Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:

xxx

(h) Transfer of officers and employees in the civil service Any public official who makes or causes any transfer or detail whatever of any officer or
employee in the civil service including public school teachers, within the election period except upon approval of the Commission.

WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14, 2001;

WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on Elections during the prohibited period in order that it can
carry out its constitutional duty to conduct free, orderly, honest, peaceful and credible elections;

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code and other election
laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and
transfer or reassign its personnel, when necessary in the effective performance of its mandated functions during the prohibited period, provided that the changes
in the assignment of its field personnel within the thirty-day period before election day shall be effected after due notice and hearing." (Emphasis supplied)

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day,
refers only to COMELEC field personnel and not to head office personnel like the petitioner. Under the Revised Administrative Code,69 the COMELEC Chairman is the sole
officer specifically vested with the power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign
COMELEC personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the
Revised Administrative Code, an act the COMELEC en banc cannot legally do.

COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial
body. Interpreting Resolution No. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every
personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and
reassignments of personnel, without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment.

The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that office, in a de jure capacity, is
Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the election period. Thus,
Benipayos order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayos
order designating Cinco Officer-in-Charge of the EID is legally unassailable.

Fifth Issue: Legality of Disbursements to Respondents

Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the Finance Services Department of the Commission on Elections, did not act in
excess of jurisdiction in paying the salaries and other emoluments of Benipayo, Borra, Tuason and Cinco.

25
WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.
Puno, and Vitug, JJ., on official leave.

G.R. No. 192791 April 24, 2012

DENNIS A. B. FUNA, Petitioner,

vs.
THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO A. VILLAR, Respondent.

DECISION

VELASCO, JR., J.:

In this Petition for Certiorari and Prohibition under Rule 65, Dennis A. B. Funa challenges the constitutionality of the appointment of Reynaldo A. Villar as Chairman of the
Commission on Audit and accordingly prays that a judgment issue "declaring the unconstitutionality" of the appointment.

The facts of the case are as follows:

On February 15, 2001, President Gloria Macapagal-Arroyo (President Macapagal-Arroyo) appointed Guillermo N. Carague (Carague) as Chairman of the Commission on
Audit (COA) for a term of seven (7) years, pursuant to the 1987 Constitution.1 Caragues term of office started on February 2, 2001 to end on February 2, 2008.

Meanwhile, on February 7, 2004, President Macapagal-Arroyo appointed Reynaldo A. Villar (Villar) as the third member of the COA for a term of seven (7) years starting
February 2, 2004 until February 2, 2011.

Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as COA Commissioner, Villar was designated as Acting Chairman of COA from
February 4, 2008 to April 14, 2008. Subsequently, on April 18, 2008, Villar was nominated and appointed as Chairman of the COA. Shortly thereafter, on June 11, 2008, the
Commission on Appointments confirmed his appointment. He was to serve as Chairman of COA, as expressly indicated in the appointment papers, until the expiration of the
original term of his office as COA Commissioner or on February 2, 2011. Challenged in this recourse, Villar, in an obvious bid to lend color of title to his hold on the
chairmanship, insists that his appointment as COA Chairman accorded him a fresh term of seven (7) years which is yet to lapse. He would argue, in fine, that his term of
office, as such chairman, is up to February 2, 2015, or 7 years reckoned from February 2, 2008 when he was appointed to that position.

Meanwhile, Evelyn R. San Buenaventura (San Buenaventura) was appointed as COA Commissioner to serve the unexpired term of Villar as Commissioner or up to February
2, 2011.

Before the Court could resolve this petition, Villar, via a letter dated February 22, 2011 addressed to President Benigno S. Aquino III, signified his intention to step down
from office upon the appointment of his replacement. True to his word, Villar vacated his position when President Benigno Simeon Aquino III named Ma. Gracia Pulido-Tan
(Chairman Tan) COA Chairman. This development has rendered this petition and the main issue tendered therein moot and academic.

case is considered moot and academic when its purpose has become stale,2 or when it ceases to present a justiciable controversy owing to the onset of supervening events,3
so that a resolution of the case or a declaration on the issue would be of no practical value or use.4 In such instance, there is no actual substantial relief which a petitioner
would be entitled to, and which will anyway be negated by the dismissal of the basic petition.5 As a general rule, it is not within Our charge and function to act upon and
decide a moot case. However, in David v. Macapagal-Arroyo,6 We acknowledged and accepted certain exceptions to the issue of mootness, thus:

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution, second, the exceptional character of the situation and the paramount public interest is involved, third, when
constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public, and fourth, the case is capable of repetition yet evading
review.

Although deemed moot due to the intervening appointment of Chairman Tan and the resignation of Villar, We consider the instant case as falling within the requirements for
review of a moot and academic case, since it asserts at least four exceptions to the mootness rule discussed in David, namely: there is a grave violation of the Constitution; the
case involves a situation of exceptional character and is of paramount public interest; the constitutional issue raised requires the formulation of controlling principles to guide
the bench, the bar and the public; and the case is capable of repetition yet evading review.7 The situation presently obtaining is definitely of such exceptional nature as to
necessarily call for the promulgation of principles that will henceforth "guide the bench, the bar and the public" should like circumstance arise. Confusion in similar future
situations would be smoothed out if the contentious issues advanced in the instant case are resolved straightaway and settled definitely. There are times when although the
dispute has disappeared, as in this case, it nevertheless cries out to be addressed. To borrow from Javier v. Pacificador,8 "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 in the future."

Both procedural and substantive issues are raised in this proceeding. The procedural aspect comes down to the question of whether or not the following requisites for the
exercise of judicial review of an executive act obtain in this petition, viz: (1) there must be an actual case or justiciable controversy before the court; (2) the question before it
must be ripe for adjudication; (3) the person challenging the act must be a proper party; and (4) the issue of constitutionality must be raised at the earliest opportunity and
must be the very litis mota of the case.9

To Villar, all the requisites have not been met, it being alleged in particular that petitioner, suing as a taxpayer and citizen, lacks the necessary standing to challenge his
appointment.10 On the other hand, the Office of the Solicitor General (OSG), while recognizing the validity of Villars appointment for the period ending February 11, 2011,
has expressed the view that petitioner should have had filed a petition for declaratory relief or quo warranto under Rule 63 or Rule 66, respectively, of the Rules of Court
instead of certiorari under Rule 65.

26
Villars posture on the absence of some of the mandatory requisites for the exercise by the Court of its power of judicial review must fail. As a general rule, a petitioner must
have the necessary personality or standing (locus standi) before a court will recognize the issues presented. In Integrated Bar of the Philippines v. Zamora, We defined locus
standi as:

x x x a personal and substantial interest in the case such that the party has sustained or will sustain a direct injury as a result of the governmental act that is being challenged.
The term "interest" means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental
interest. The gist of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to assure the concrete adverseness which
sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions."11

To have legal standing, therefore, a suitor must show that he has sustained or will sustain a "direct injury" as a result of a government action, or have a "material interest" in
the issue affected by the challenged official act.12 However, the Court has time and again acted liberally on the locus standi requirements and has accorded certain
individuals, not otherwise directly injured, or with material interest affected, by a Government act, standing to sue provided a constitutional issue of critical significance is at
stake.13 The rule on locus standi is after all a mere procedural technicality in relation to which the Court, in a catena of cases involving a subject of transcendental import, has
waived, or relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may not have
been personally injured by the operation of a law or any other government act.14 In David, the Court laid out the bare minimum norm before the so-called "non-traditional
suitors" may be extended standing to sue, thusly:

1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;

2.) For voters, there must be a showing of obvious interest in the validity of the election law in question;

3.) For concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and

4.) For legislators, there must be a claim that the official action complained of infringes their prerogatives as legislators.

This case before Us is of transcendental importance, since it obviously has "far-reaching implications," and there is a need to promulgate rules that will guide the bench, bar,
and the public in future analogous cases. We, thus, assume a liberal stance and allow petitioner to institute the instant petition.

Anent the aforestated posture of the OSG, there is no serious disagreement as to the propriety of the availment of certiorari as a medium to inquire on whether the assailed
appointment of respondent Villar as COA Chairman infringed the constitution or was infected with grave abuse of discretion. For under the expanded concept of judicial
review under the 1987 Constitution, the corrective hand of certiorari may be invoked not only "to settle actual controversies involving rights which are legally demandable
and enforceable," but also "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."15 "Grave abuse of discretion" denotes:

such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words, where the power is exercised 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 evasion of positive duty or to a virtual refusal to perform the duty enjoined or
to act in contemplation of law.16

We find the remedy of certiorari applicable to the instant case in view of the allegation that then President Macapagal-Arroyo exercised her appointing power in a manner
constituting grave abuse of discretion.

This brings Us to the pivotal substantive issue of whether or not Villars appointment as COA Chairman, while sitting in that body and after having served for four (4) years
of his seven (7) year term as COA commissioner, is valid in light of the term limitations imposed under, and the circumscribing concepts tucked in, Sec. 1 (2), Art. IX(D) of
the Constitution, which reads:

(2) The Chairman and Commissioners [on Audit] 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, the Chairman shall hold office for seven years, one commissioner for five years, and the other commissioner for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any member be appointed or designated in
a temporary or acting capacity. (Emphasis added.)17

And if valid, for how long can he serve?

At once clear from a perusal of the aforequoted provision are the defined restricting features in the matter of the composition of COA and the appointment of its members
(commissioners and chairman) designed to safeguard the independence and impartiality of the commission as a body and that of its individual members.18 These are, first,
the rotational plan or the staggering term in the commission membership, such that the appointment of commission members subsequent to the original set appointed after the
effectivity of the 1987 Constitution shall occur every two years; second, the maximum but a fixed term-limit of seven (7) years for all commission members whose
appointments came about by reason of the expiration of term save the aforementioned first set of appointees and those made to fill up vacancies resulting from certain causes;
third, the prohibition against reappointment of commission members who served the full term of seven years or of members first appointed under the Constitution who served
their respective terms of office; fourth, the limitation of the term of a member to the unexpired portion of the term of the predecessor; and fifth, the proscription against
temporary appointment or designation.

To elucidate on the mechanics of and the adverted limitations on the matter of COA-member appointments with fixed but staggered terms of office, the Court lays down the
following postulates deducible from pertinent constitutional provisions, as construed by the Court:

1. The terms of office and appointments of the first set of commissioners, or the seven, five and three-year termers referred to in Sec. 1(2), Art. IX(D) of the
Constitution, had already expired. Hence, their respective terms of office find relevancy for the most part only in understanding the operation of the rotational
plan. In Gaminde v. Commission on Audit,19 the Court described how the smooth functioning of the rotational system contemplated in said and like provisions
covering the two other independent commissions is achieved thru the staggering of terms:

x x x [T]he terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date
[February 02, 1987, when the 1987 Constitution was ratified] irrespective of the variations in the dates of appointments and qualifications of the appointees in
order that the expiration of the first terms of seven, five and three years should lead to the regular recurrence of the two-year interval between the expiration of the
terms.

27
 x x x In case of a belated appointment, the interval between the start of the terms and the actual appointment shall be counted against the appointee.20 (Italization
in the original; emphasis added.)

Early on, in Republic v. Imperial,21 the Court wrote of two conditions, "both indispensable to [the] workability" of the rotational plan. These
conditions may be described as follows: (a) that the terms of the first batch of commissioners should start on a common date; and (b) that any vacancy
due to death, resignation or disability before the expiration of the term should be filled only for the unexpired balance of the term. Otherwise, Imperial
continued, "the regularity of the intervals between appointments would be destroyed." There appears to be near unanimity as to the purpose/s of the
rotational system, as originally conceived, i.e., to place in the commission a new appointee at a fixed interval (every two years presently), thus
preventing a four-year administration appointing more than one permanent and regular commissioner,22 or to borrow from Commissioner Monsod of
the 1986 CONCOM, "to prevent one person (the President of the Philippines) from dominating the commissions."23 It has been declared too that the
rotational plan ensures continuity in, and, as indicated earlier, secure the independence of, the commissions as a body.24

2. An appointment to any vacancy in COA, which arose from an expiration of a term, after the first chairman and commissioners appointed under the 1987
Constitution have bowed out, shall, by express constitutional fiat, be for a term of seven (7) years, save when the appointment is to fill up a vacancy for the
corresponding unserved term of an outgoing member. In that case, the appointment shall only be for the unexpired portion of the departing commissioners term
of office. There can only be an unexpired portion when, as a direct result of his demise, disability, resignation or impeachment, as the case may be, a sitting
member is unable to complete his term of office.25 To repeat, should the vacancy arise out of the expiration of the term of the incumbent, then there is technically
no unexpired portion to speak of. The vacancy is for a new and complete seven-year term and, ergo, the appointment thereto shall in all instances be for a
maximum seven (7) years.

3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits the "reappointment" of a member of COA after his appointment for seven (7) years. Writing for the
Court in Nacionalista Party v. De Vera,26 a case involving the promotion of then COMELEC Commissioner De Vera to the position of chairman, then Chief
Justice Manuel Moran called attention to the fact that the prohibition against "reappointment" comes as a continuation of the requirement that the
commissionersreferring to members of the COMELEC under the 1935 Constitutionshall hold office for a term of nine (9) years. This sentence formulation
imports, notes Chief Justice Moran, that reappointment is not an absolute prohibition.

4. The adverted system of regular rotation or the staggering of appointments and terms in the membership for all three constitutional commissions, namely the
COA, Commission on Elections (COMELEC) and Civil Service Commission (CSC) found in the 1987 Constitution was patterned after the amended 1935
Constitution for the appointment of the members of COMELEC27 with this difference: the 1935 version entailed a regular interval of vacancy every three (3)
years, instead of the present two (2) years and there was no express provision on appointment to any vacancy being limited to the unexpired portion of the his
predecessors term. The model 1935 provision reads:

Section 1. There shall be an independent Commission on Elections composed of a Chairman and two other members to be appointed by the President with the consent of the
Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the Members of the Commission first appointed, one shall hold
office for nine years, another for six years and the third for three years. x x x

Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987 Constitution proscribes reappointment of any kind within the commission, the point being that a
second appointment, be it for the same position (commissioner to another position of commissioner) or upgraded position (commissioner to chairperson) is a prohibited
reappointment and is a nullity ab initio. Attention is drawn in this regard to the Courts disposition in Matibag v. Benipayo.28

Villars promotional appointment, so it is argued, is void from the start, constituting as it did a reappointment enjoined by the Constitution, since it actually needed another
appointment to a different office and requiring another confirmation by the Commission on Appointments.

Central to the adjudication of the instant petition is the correct meaning to be given to Sec. 1(2), Article IX(D) of the Constitution on the ban against reappointment in relation
to the appointment issued to respondent Villar to the position of COA Chairman.

Without question, the parties have presented two (2) contrasting and conflicting positions. Petitioner contends that Villars appointment is proscribed by the constitutional ban
on reappointment under the aforecited constitutional provision. On the other hand, respondent Villar initially asserted that his appointment as COA Chairman is valid up to
February 2, 2015 pursuant to the same provision.

The Court finds petitioners position bereft of merit. The flaw lies in regarding the word "reappointment" as, in context, embracing any and all species of appointment.

The rule is that if a statute or constitutional provision is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted
interpretation.29 This is known as the plain meaning rule enunciated by the maxim verba legis non est recedendum, or from the words of a statute there should be no
departure.30

The primary source whence to ascertain constitutional intent or purpose is the language of the provision itself.31 If possible, the words in the Constitution must be given their
ordinary meaning, save where technical terms are employed. J.M. Tuason & Co., Inc. v. Land Tenure Administration illustrates the verbal legis rule in this wise:

We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed that the words in
which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are
employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyers document, it being essential for the rule of law to
obtain that it should ever be present in the peoples consciousness, its language as much as possible should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people
mean what they say. Thus there are cases where the need for construction is reduced to a minimum.32 (Emphasis supplied.)

Let us dissect and examine closely the provision in question:

(2) The Chairman and Commissioners [on Audit] 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, the Chairman shall hold office for seven years, one commissioner for five years, and the other commissioner for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. x x x (Emphasis added.)

The first sentence is unequivocal enough. The COA Chairman shall be appointed by the President for a term of seven years, and if he has served the full term, then he can no
longer be reappointed or extended another appointment. In the same vein, a Commissioner who was appointed for a term of seven years who likewise served the full term is
barred from being reappointed. In short, once the Chairman or Commissioner shall have served the full term of seven years, then he can no longer be reappointed to either the

28
position of Chairman or Commissioner. The obvious intent of the framers is to prevent the president from "dominating" the Commission by allowing him to appoint an
additional or two more commissioners.

The same purpose obtains in the second sentence of Sec. 1(2). The Constitutional Convention barred reappointment to be extended to commissioner-members first appointed
under the 1987 Constitution to prevent the President from controlling the commission. Thus, the first Chairman appointed under the 1987 Constitution who served the full
term of seven years can no longer be extended a reappointment. Neither can the Commissioners first appointed for the terms of five years and three years be eligible for
reappointment. This is the plain meaning attached to the second sentence of Sec. 1(2), Article IX(D).

On the other hand, the provision, on its face, does not prohibit a promotional appointment from commissioner to chairman as long as the commissioner has not served the full
term of seven years, further qualified by the third sentence of Sec. 1(2), Article IX (D) that "the appointment to any vacancy shall be only for the unexpired portion of the
term of the predecessor." In addition, such promotional appointment to the position of Chairman must conform to the rotational plan or the staggering of terms in the
commission membership such that the aggregate of the service of the Commissioner in said position and the term to which he will be appointed to the position of Chairman
must not exceed seven years so as not to disrupt the rotational system in the commission prescribed by Sec. 1(2), Art. IX(D).

In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a promotional appointment from Commissioner to Chairman, provided it is made under the
aforestated circumstances or conditions.

It may be argued that there is doubt or ambiguity on whether Sec. 1(2), Art. IX(D), as couched, allows a promotional appointment from Commissioner to Chairman. Even if
We concede the existence of an ambiguity, the outcome will remain the same. J.M. Tuason & Co., Inc.33 teaches that in case of doubt as to the import and react of a
constitutional provision, resort should be made to extraneous aids of construction, such as debates and proceedings of the Constitutional Convention, to shed light on and
ascertain the intent of the framers or the purpose of the provision being construed.

The understanding of the Convention as to what was meant by the terms of the constitutional provision which was the subject of the deliberation goes a long way toward
explaining the understanding of the people when they ratified it. The Court applied this principle in Civil Liberties Union v. Executive Secretary:

A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the
words consonant to that reason and calculated to effect that purpose.34 (Emphasis added.)

And again in Nitafan v. Commissioner on Internal Revenue:

x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the
people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and
of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by
the framers.35 (Emphasis added.)

Much weight and due respect must be accorded to the intent of the framers of the Constitution in interpreting its provisions.

Far from prohibiting reappointment of any kind, including a situation where a commissioner is upgraded to the position of chairman, the 1987 Constitution in fact
unequivocally allows promotional appointment, but subject to defined parameters. The ensuing exchanges during the deliberations of the 1986 Constitutional Commission
(CONCOM) on a draft proposal of what would eventually be Sec. 1(2), Art. IX(D) of the present Constitution amply support the thesis that a promotional appointment is
allowed provided no one may be in the COA for an aggregate threshold period of 7 years:

MS. AQUINO: In the same paragraph, I would propose an amendment x x x. Between x x x the sentence which begins with "In no case," insert THE APPOINTEE SHALL
IN NO CASE SERVE AN AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was thinking that this may approximate the situation wherein a commissioner is
first appointed as chairman. I am willing to withdraw that amendment if there is a representation on the part of the Committee that there is an implicit intention to prohibit a
term that in the aggregate will exceed more than seven years. If that is the intention, I am willing to withdraw my amendment.

MR. MONSOD: If the [Gentlewoman] will read the whole Article, she will notice that there is no reappointment of any kind and, therefore, as a whole there is no way
somebody can serve for more than seven years. The purpose of the last sentence is to make sure that this does not happen by including in the appointment both temporary and
acting capacities.

MS. AQUINO. Yes. Reappointment is fine; that is accounted for. But I was thinking of a situation wherein a commissioner is upgraded to a position of chairman. But if this
provision is intended to cover that kind of situation, then I am willing to withdraw my amendment.

MR. MONSOD. It is covered.

MR. FOZ. There is a provision on line 29 precisely to cover that situation. It states: "Appointment to any vacancy shall be only for the unexpired portion of the predecessor."
In other words, if there is upgrading of position from commissioner to chairman, the appointee can serve only the unexpired portion of the term of the predecessor.

MS. AQUINO: But we have to be very specific x x x because it might shorten the term because he serves only the unexpired portion of the term of the predecessor.

MR. FOZ: He takes it at his own risk. He knows that he will only have to serve the unexpired portion of the term of the predecessor. (Emphasis added.)36

The phrase "upgrading of position" found in the underscored portion unmistakably shows that Sec. 1(2), Art. IX(D) of the 1987 Constitution, for all its caveat against
reappointment, does not per se preclude, in any and all cases, the promotional appointment or upgrade of a commissioner to chairman, subject to this proviso: the appointees
tenure in office does not exceed 7 years in all. Indeed, such appointment does not contextually come within the restricting phrase "without reappointment" twice written in
that section. Delegate Foz even cautioned, as a matter of fact, that a sitting commissioner accepting a promotional appointment to fill up an unexpired portion pertaining to
the higher office does so at the risk of shortening his original term. To illustrate the Fozs concern: assume that Carague left COA for reasons other than the expiration of his
threshold 7-year term and Villar accepted an appointment to fill up the vacancy. In this situation, the latter can only stay at the COA and served the unexpired portion of
Caragues unexpired term as departing COA Chairman, even if, in the process, his (Villars) own 7-year term as COA commissioner has not yet come to an end. In this
illustration, the inviolable regularity of the intervals between appointments in the COA is preserved.

29
Moreover, jurisprudence tells us that the word "reappointment" means a second appointment to one and the same office.37 As Justice Arsenio Dizon (Justice Dizon) aptly
observed in his dissent in Visarra v. Miraflor,38 the constitutional prohibition against the reappointment of a commissioner refers to his second appointment to the same office
after holding it for nine years.39 As Justice Dizon observed, "[T]he occupant of an office obviously needs no such second appointment unless, for some valid cause, such as
the expiration of his term or resignation, he had ceased to be the legal occupant thereof." 40 The inevitable implication of Justice Dizons cogent observation is that a
promotion from commissioner to chairman, albeit entailing a second appointment, involves a different office and, hence, not, in the strict legal viewpoint, a reappointment.
Stated a bit differently, "reappointment" refers to a movement to one and the same office. Necessarily, a movement to a different position within the commission (from
Commissioner to Chairman) would constitute an appointment, or a second appointment, to be precise, but not reappointment.

A similar opinion was expressed in the same Visarra case by the concurring Justice Angelo Bautista, although he expressly alluded to a promotional appointment as not being
a prohibited appointment under Art. X of the 1935 Constitution.

Petitioners invocation of Matibag as additional argument to contest the constitutionality of Villars elevation to the COA chairmanship is inapposite. In Matibag, then
President Macapagal-Arroyo appointed, ad interim, Alfredo Benipayo as COMELEC Chairman and Resurreccion Borra and Florentino Tuason as Commissioners, each for a
term of office of seven (7) years. All three immediately took their oath of, and assumed, office. These appointments were twice renewed because the Commission on
Appointments failed to act on the first two ad interim appointments. Via a petition for prohibition, some disgruntled COMELEC officials assail as infirm the appointments of
Benipayo, et al.

Matibag lists (4) four situations where the prohibition on reappointment would arise, or to be specific, where the proviso "[t]he Chairman and the Commissioners shall be
appointed x x x for a term of seven years without reappointment" shall apply. Justice Antonio T. Carpio declares in his dissent that Villars appointment falls under a
combination of two of the four situations.

Conceding for the nonce the correctness of the premises depicted in the situations referred to in Matibag, that case is of doubtful applicability to the instant petition. Not only
is it cast against a different milieu, but the lis mota of the case, as expressly declared in the main opinion, "is the very constitutional issue raised by petitioner."41 And what
is/are this/these issue/s? Only two defined issues in Matibag are relevant, viz: (1) the nature of an ad interim appointment and subsumed thereto the effect of a by-passed ad
interim appointment; and (2) the constitutionality of renewals of ad interim appointments. The opinion defined these issues in the following wise: "Petitioner [Matibag] filed
the instant petition questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason as Chairman and Commissioners of the COMELEC,
respectively. Petitioner claims that the ad interim appointments of Benipayo, et al. violate the constitutional provisions on the independence of COMELEC, as well as on the
prohibitions on temporary appointments and reappointments of its Chairman and members." As may distinctly be noted, an upgrade or promotion was not in issue in Matibag.

We shall briefly address the four adverted situations outlined in Matibag, in which, as there urged, the uniform proviso on no reappointmentafter a member of any of the
three constitutional commissions is appointed for a term of seven (7) yearsshall apply. Matibag made the following formulation:

The first situation is where an ad interim appointee after confirmation by the Commission on Appointments serves his full 7-year term. Such person cannot be reappointed
whether as a member or as chairman because he will then be actually serving more than seven (7) years.

The second situation is where the appointee, after confirmation, serves part of his term and then resigns before his seven-year term of office ends. Such person cannot be
reappointed whether as a member or as chair to a vacancy arising from retirement because a reappointment will result in the appointee serving more than seven years.

The third situation is where the appointee is confirmed to serve the unexpired portion of someone who died or resigned, and the appointee completes the unexpired term.
Such person cannot be reappointed whether as a member or as chair to a vacancy arising from retirement because a reappointment will result in the appointee also serving
more than seven (7) years.

The fourth situation is where the appointee has previously served a term of less than seven (7) years, and a vacancy arises from death or resignation. Even if it will not result
in his serving more than seven years, a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed
under the second sentence of Sec. 1(20), Art. IX-C of the Constitution [referring to the first set of appointees (the 5 and 3 year termers) whose term of office are less than 7
years but are barred from being reappointed under any situation]."42 (Words in brackets and emphasis supplied.)

The situations just described constitute an obiter dictum, hence without the force of adjudication, for the corresponding formulation of the four situations was not in any way
necessary to resolve any of the determinative issues specifically defined in Matibag. An opinion entirely unnecessary for the decision of the case or one expressed upon a
point not necessarily involved in the determination of the case is an obiter.43

There can be no serious objection to the scenarios depicted in the first, second and third situations, both hewing with the proposition that no one can stay in any of the three
independent commissions for an aggregate period of more than seven (7) years. The fourth situation, however, does not commend itself for concurrence inasmuch as it is
basically predicated on the postulate that reappointment, as earlier herein defined, of any kind is prohibited under any and all circumstances. To reiterate, the word
"reappointment" means a second appointment to one and the same office; and Sec. 1(2), Art. IX(D) of the 1987 Constitution and similar provisions do not peremptorily
prohibit the promotional appointment of a commissioner to chairman, provided the new appointees tenure in both capacities does not exceed seven (7) years in all. The
statements in Matibag enunciating the ban on reappointment in the aforecited fourth situation, perforce, must be abandoned, for, indeed, a promotional appointment from the
position of Commissioner to that of Chairman is constitutionally permissible and not barred by Sec. 1(2), Art. IX (D) of the Constitution.

One of the aims behind the prohibition on reappointment, petitioner urges, is to ensure and preserve the independence of COA and its members,44 citing what the dissenting
Justice J.B.L Reyes wrote in Visarra, that once appointed and confirmed, the commissioners should be free to act as their conscience demands, without fear of retaliation or
hope or reward. Pursued to its logical conclusion, petitioners thesis is that a COA member may no longer act with independence if he or she can be rewarded with a
promotion or appointment, for then he or she will do the bidding of the appointing authority in the hope of being promoted or reappointed.

The unstated reason behind Justice J.B.L. Reyes counsel is that independence is really a matter of choice. Without taking anything away from the gem imparted by the
eminent jurist, what Chief Justice Moran said on the subject of independence is just as logically sound and perhaps even more compelling, as follows:

A Commissioner, hopeful of reappointment may strive to do good. Whereas, without that hope or other hope of material reward, his enthusiasm may decline as the end of his
term approaches and he may even lean to abuses if there is no higher restrain in his moral character. Moral character is no doubt the most effective safeguard of
independence. With moral integrity, a commissioner will be independent with or without the possibility of reappointment.45

The Court is likewise unable to sustain Villars proposition that his promotional appointment as COA Chairman gave him a completely fresh 7-year termfrom February
2008 to February 2015given his four (4)-year tenure as COA commissioner devalues all the past pronouncements made by this Court, starting in De Vera, then Imperial,
Visarra, and finally Matibag. While there had been divergence of opinion as to the import of the word "reappointment," there has been unanimity on the dictum that in no case
can one be a COA member, either as chairman or commissioner, or a mix of both positions, for an aggregate term of more than 7 years. A contrary view would allow a

30
circumvention of the aggregate 7-year service limitation and would be constitutionally offensive as it would wreak havoc to the spirit of the rotational system of succession.
Imperial, passing upon the rotational system as it applied to the then organizational set-up of the COMELEC, stated:

The provision that of the first three commissioners appointed "one shall hold office for 9 years, another for 6 years and the third for 3 years," when taken together with the
prescribed term of office for 9 years without reappointment, evinces a deliberate plan to have a regular rotation or cycle in the membership of the commission, by having
subsequent members appointable only once every three years.46

To be sure, Villars appointment as COA Chairman partakes of a promotional appointment which, under appropriate setting, would be outside the purview of the
constitutional reappointment ban in Sec 1(2), Art. IX(D) of the Constitution. Nonetheless, such appointment, even for the term appearing in the underlying appointment
paper, ought still to be struck down as unconstitutional for the reason as shall be explained.

Consider:

In a mandatory tone, the aforecited constitutional provision decrees that the appointment of a COA member shall be for a fixed 7-year term if the vacancy results from the
expiration of the term of the predecessor. We reproduce in its pertinent part the provision referred to:

(2) The Chairman and Commissioners [on Audit] shall be appointed x x x for a term of seven years without reappointment. x x x Appointment to any vacancy shall be only
for the unexpired portion of the term of the predecessor. x x x

Accordingly, the promotional appointment as COA Chairman of Villar for a stated fixed term of less than seven (7) years is void for violating a clear, but mandatory
constitutional prescription. There can be no denying that the vacancy in the position of COA chairman when Carague stepped down in February 2, 2008 resulted from the
expiration of his 7-year term. Hence, the appointment to the vacancy thus created ought to have been one for seven (7) years in line with the verbal legis approach47 of
interpreting the Constitution. It is to be understood, however, following Gaminde, that in case of a belated appointment, the interval between the start of the term and the
actual appointment shall be counted against the 7-year term of the appointee. Posing, however, as an insurmountable barrier to a full 7-year appointment for Villar is the rule
against one serving the commission for an aggregate term of more than seven (7) years.

Where the Constitution or, for that matter, a statute, has fixed the term of office of a public official, the appointing authority is without authority to specify in the appointment
a term shorter or longer than what the law provides. If the vacancy calls for a full seven-year appointment, the President is without discretion to extend a promotional
appointment for more or for less than seven (7) years. There is no in between. He or she cannot split terms. It is not within the power of the appointing authority to override
the positive provision of the Constitution which dictates that the term of office of members of constitutional bodies shall be seven (7) years.48 A contrary reasoning "would
make the term of office to depend upon the pleasure or caprice of the [appointing authority] and not upon the will [of the framers of the Constitution] of the legislature as
expressed in plain and undoubted language in the law."49

In net effect, then President Macapagal-Arroyo could not have had, under any circumstance, validly appointed Villar as COA Chairman, for a full 7-year appointment, as the
Constitution decrees, was not legally feasible in light of the 7-year aggregate rule. Villar had already served 4 years of his 7-year term as COA Commissioner. A shorter term,
however, to comply with said rule would also be invalid as the corresponding appointment would effectively breach the clear purpose of the Constitution of giving to every
appointee so appointed subsequent to the first set of commissioners, a fixed term of office of 7 years. To recapitulate, a COA commissioner like respondent Villar who serves
for a period less than seven (7) years cannot be appointed as chairman when such position became vacant as a result of the expiration of the 7-year term of the predecessor
(Carague). Such appointment to a full term is not valid and constitutional, as the appointee will be allowed to serve more than seven (7) years under the constitutional ban.

On the other hand, a commissioner who resigned before serving his 7- year term can be extended an appointment to the position of chairman for the unexpired period of the
term of the latter, provided the aggregate of the period he served as commissioner and the period he will serve as chairman will not exceed seven (7) years. This situation will
only obtain when the chairman leaves the office by reason of death, disability, resignation or impeachment. Let us consider, in the concrete, the situation of then Chairman
Carague and his successor, Villar. Carague was appointed COA Chairman effective February 2, 2001 for a term of seven (7) years, or up to February 2, 2008. Villar was
appointed as Commissioner on February 2, 2004 with a 7-year term to end on February 2, 2011. If Carague for some reason vacated the chairmanship in 2007, then Villar can
resign as commissioner in the same year and later be appointed as chairman to serve only up to February 2, 2008, the end of the unexpired portion of Caragues term. In this
hypothetical scenario, Villars appointment to the position of chairman is valid and constitutional as the aggregate periods of his two (2) appointments will only be five (5)
years which neither distorts the rotational scheme nor violates the rule that the sum total of said appointments shall not exceed seven (7) years. Villar would, however, forfeit
two (2) years of his original seven (7)-year term as Commissioner, since, by accepting an upgraded appointment to Caragues position, he agreed to serve the unexpired
portion of the term of the predecessor. As illustrated earlier, following Mr. Fozs line, if there is an upgrading of position from commissioner to chairman, the appointee takes
the risk of cutting short his original term, knowing pretty well before hand that he will serve only the unexpired portion of the term of his predecessor, the outgoing COA
chairman.

In the extreme hypothetical situation that Villar vacates the position of chairman for causes other than the expiration of the original term of Carague, the President can only
appoint the successor of Villar for the unexpired portion of the Carague term in line with Sec. 1(2), Art. IX(D) of the Constitution. Upon the expiration of the original 7-year
term of Carague, the President can appoint a new chairman for a term of seven (7) full years.

In his separate dissent, my esteemed colleague, Mr. Justice Mendoza, takes strong exception to the view that the promotional appointment of a sitting commissioner is
plausible only when he is appointed to the position of chairman for the unexpired portion of the term of said official who leaves the office by reason of any the following
reasons: death, disability, resignation or impeachment, not when the vacancy arises out as a result of the expiration of the 7-year term of the past chairman. There is nothing in
the Constitution, so Justice Mendoza counters, that restricts the promotion of an incumbent commissioner to the chairmanship only in instances where the tenure of his
predecessor was cut short by any of the four events referred to. As earlier explained, the majority view springs from the interplay of the following premises: The explicit
command of the Constitution is that the "Chairman and the Commissioners shall be appointed by the President x x x for a term of seven years [and] appointment to any
vacancy shall be only for the unexpired portion of the term of the predecessor." To repeat, the President has two and only two options on term appointments. Either he extends
an appointment for a full 7-year term when the vacancy results from the expiration of term, or for a shorter period corresponding to the unexpired term of the predecessor
when the vacancy occurs by reason of death, physical disability, resignation or impeachment. If the vacancy calls for a full seven-year appointment, the Chief Executive is
barred from extending a promotional appointment for less than seven years. Else, the President can trifle with terms of office fixed by the Constitution.

Justice Mendoza likewise invites attention to an instance in history when a commissioner had been promoted chairman after the expiration of the term of his predecessor,
referring specifically to the appointment of then COMELEC Commissioner Gaudencio Garcia to succeed Jose P. Carag after the expiration of the latters term in 1959 as
COMELEC chairman. Such appointment to the position of chairman is not constitutionally permissible under the 1987 Constitution because of the policy and intent of its
framers that a COA member who has served his full term of seven (7) years or even for a shorter period can no longer be extended another appointment to the position of
chairman for a full term of seven (7) years. As revealed in the deliberations of the Constitutional Commission that crafted the 1987 Constitution, a member of COA who also
served as a commissioner for less than seven (7) years in said position cannot be appointed to the position of chairman for a full term of seven (7) years since the aggregate
will exceed seven (7) years. Thus, the adverted Garcia appointment in 1959 made under the 1935 Constitution cannot be used as a precedent to an appointment of such nature
under the 1987 Constitution. The dissent further notes that the upgrading remained uncontested. In this regard, suffice it to state that the promotion in question was either
legal or it was not. If it were not, no amount of repetitive practices would clear it of invalidating taint.

31
Lastly, Villars appointment as chairman ending February 2, 2011 which Justice Mendoza considers as valid is likewise unconstitutional, as it will destroy the rationale and
policy behind the rotational system or the staggering of appointments and terms in COA as prescribed in the Constitution. It disturbs in a way the staggered rotational system
of appointment under Sec. 1(2), Art. IX(D) of the 1987 Constitution. Consider: If Villars term as COA chairman up to February 2, 2011 is viewed as valid and constitutional
as espoused by my esteemed colleague, then two vacancies have simultaneously occurred and two (2) COA members going out of office at once, opening positions for two
(2) appointables on that date as Commissioner San Buenaventuras term also expired on that day. This is precisely one of the mischiefs the staggering of terms and the regular
intervals appointments seek to address. Note that San Buenaventura was specifically appointed to succeed Villar as commissioner, meaning she merely occupied the position
vacated by her predecessor whose term as such commissioner expired on February 2, 2011. The result is what the framers of the Constitution doubtless sought to avoid, a
sitting President with a 6-year term of office, like President Benigno C. Aquino III, appointing all or at least two (2) members of the three-man Commission during his term.
He appointed Ma. Gracia Pulido-Tan as Chairman for the term ending February 2, 2015 upon the relinquishment of the post by respondent Villar, and Heidi Mendoza was
appointed Commissioner for a 7-year term ending February 2, 2018 to replace San Buenaventura. If Justice Mendozas version is adopted, then situations like the one which
obtains in the Commission will definitely be replicated in gross breach of the Constitution and in clear contravention of the intent of its framers. Presidents in the future can
easily control the Commission depriving it of its independence and impartiality.

To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the Constitution, viz:

1. The appointment of members of any of the three constitutional commissions, after the expiration of the uneven terms of office of the first set of commissioners,
shall always be for a fixed term of seven (7) years; an appointment for a lesser period is void and unconstitutional.

The appointing authority cannot validly shorten the full term of seven (7) years in case of the expiration of the term as this will result in the distortion of the
rotational system prescribed by the Constitution.

2. Appointments to vacancies resulting from certain causes (death, resignation, disability or impeachment) shall only be for the unexpired portion of the term of
the predecessor, but such appointments cannot be less than the unexpired portion as this will likewise disrupt the staggering of terms laid down under Sec. 1(2),
Art. IX(D).

3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a full term of seven years and who served the entire period, are barred
from reappointment to any position in the Commission. Corollarily, the first appointees in the Commission under the Constitution are also covered by the
prohibition against reappointment.

4. A commissioner who resigns after serving in the Commission for less than seven years is eligible for an appointment to the position of Chairman for the
unexpired portion of the term of the departing chairman. Such appointment is not covered by the ban on reappointment, provided that the aggregate period of the
length of service as commissioner and the unexpired period of the term of the predecessor will not exceed seven (7) years and provided further that the vacancy in
the position of Chairman resulted from death, resignation, disability or removal by impeachment. The Court clarifies that "reappointment" found in Sec. 1(2), Art.
IX(D) means a movement to one and the same office (Commissioner to Commissioner or Chairman to Chairman). On the other hand, an appointment involving a
movement to a different position or office (Commissioner to Chairman) would constitute a new appointment and, hence, not, in the strict legal sense, a
reappointment barred under the Constitution.

5. Any member of the Commission cannot be appointed or designated in a temporary or acting capacity.

WHEREFORE the petition is PARTLY GRANTED. The appointment of then Commissioner Reynaldo A. Villar to the position of Chairman of the Commission on Audit to
replace Guillermo N. Carague, whose term of office as such chairman has expired, is hereby declared UNCONSTITUTIONAL for violation of Sec. 1(2), Art. IX(D) of the
Constitution.

SO ORDERED.

G.R. No. 209185 October 25, 2013

MARC DOUGLAS IV C. CAGAS, Petitioner,

vs.
COMMISSION ON ELECTIONS represented by its CHAIRMAN ATTY. SIXTO BRILLANTES JR. and the PROVINCIAL ELECTION OFFICER OF DAVAO
DEL SUR, represented by ATTY. MA. FEBES BARLAAN, Respondents.

RESOLUTION

CARPIO, J.:

This Resolution resolves the Petition for Prohibition, 1 filed by Marc Douglas IV C. Cagas (Cagas), in his capacity as taxpayer, to prohibit the Commission on Elections
(COMELEC) from conducting a plebiscite for the creation of the province of Davao Occidental simultaneously with the 28 October 2013 Barangay Elections within the
whole province of Davao del Sur, except in Davao City.

Cagas, while he was representative of the first legislative district of Davao del Sur, filed with Hon. Franklin Bautista, then representative of the second legislative district of
the same province, House Bill No. 4451 (H.B. No. 4451), a bill creating the province of Davao Occidental. H.B. No. 4451 was signed into law as Republic Act No. 10360
(R.A. No. 10360), the Charter of the Province of Davao Occidental.

Sections 2 and 7 of R.A. No. 10360 provide for the composition of the new provinces of Davao Occidental and Davao del Sur:

Sec. 2. Province of Davao Occidental. There is hereby created a new province from the present Province of Davao del Sur to be known as the Province of Davao
Occidental, consisting of the municipalities of Sta. Maria, Malita, Don Marcelino, Jose Abad Santos and Sarangani. The territorial jurisdiction of the Province of Davao
Occidental shall be within the present metes and bounds of all the municipalities that comprise the Province of Davao Occidental.

xxxx

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Sec. 7. Legislative District. The Province of Davao Occidental shall have its own legislative district to commence in the next national and local elections after the effectivity
of this Charter. Henceforth, the municipalities of Sta. Maria, Malita, Don Marcelino, Jose Abad Santos and Sarangani shall comprise the Lone Legislative District of the
Province of Davao Occidental while the City of Digos and the municipalities of Malalag, Sulop, Kiblawan, Padada, Hagonoy, Sta. Cruz, Matanao, Bansalan and Magsaysay
shall comprise the Lone Legislative District of the Province of Davao del Sur.

xxxx

Section 46 of R.A. No. 10360 provides for the date of the holding of a plebiscite.

Sec. 46. Plebiscite. The Province of Davao Occidental shall be created, as provided for in this Charter, upon approval by the majority of the votes cast by the voters of the
affected areas in a plebiscite to be conducted and supervised by the Commission on Elections (COMELEC) within sixty (60) days from the date of the effectivity of this
Charter.

The amount necessary for the conduct of the plebiscite shall be borne by the COMELEC.

R.A. No. 10360 was passed by the House of Representatives on 28 November 2012, and by the Senate on 5 December 2012. President Benigno S. Aquino III approved R.A.
No. 10360 on 14 January 2013.2 R.A. No. 10360 was published in the Philippine Star and the Manila Bulletin only on 21 January 2013. Considering that R.A. No. 10360
shall take effect 15 days after its publication in at least two newspapers of general and local circulation, 3 COMELEC, therefore, only had until 6 April 2013 to conduct the
plebiscite.4

As early as 27 November 2012, prior to the effectivity of R.A. No. 10360, the COMELEC suspended the conduct of all plebiscites as a matter of policy and in view of the
preparations for the 13 May 2013 National and Local Elections. 5 On 9 July 2013, the COMELEC extended

the policy on suspension of the holding of plebiscites by resolving to defer action on the holding of all plebiscites until after the 28 October 2013 Barangay Elections. 6 During
a meeting held on 31 July 2013, the COMELEC decided to hold the plebiscite for the creation of Davao Occidental simultaneously with the 28 October 2013 Barangay
Elections to save on expenses7 . The COMELEC, in Minute Resolution No. 13-0926, approved the conduct of the Concept of Execution for the conduct of the plebiscite on 6
August 2013.8 On 14 August 2013, Bartolome J. Sinocruz, Jr., the Deputy Executive Director for Operations of the COMELEC, issued a memorandum furnishing a copy of
Minute Resolution No. 13-0926 to Atty. Remlane M. Tambuang, Regional Election Director of Region XI; Atty. Ma. Febes M. Barlaan, Provincial Election Supervisor of
Davao del Sur; and to all election officers of Davao del Sur. On 6 September 2013, the COMELEC promulgated Resolution Nos. 9771 9 and 9772.10 Resolution No. 9771
provided for the following calendar of activities:

DATE/PERIOD ACTIVITIES PROHIBITED ACTS

SEPT. 09, 2013 (MON) Last day to constitute the Plebiscite Board of
Canvassers

SEPT. 28, 2013 (SAT) PLEBISCITE PERIOD

NOV. 12, 2013 (TUE) (30
DAYS BEFORE THE Bearing, carrying or transporting firearms or other deadly
DATE OF PLEBISCITE weapons in public places, including any building, street, park,
AND 15 DAYS private vehicle or public conveyance, or even if licensed to
THEREAFTER possess or carry the same, unless authorized in writing by the
Commission (Sec. 261 (p) (q) OEC, as amended by Sec. 32,
RA 7166);

Suspension of local elective officials (Sec. 261 (x), OEC);

Transfer of officers and employees in the civil service (Sec.
261 (h), OEC);

Alteration of territory of a precinct or establishment of a new

precinct (Sec. 5, R.A. 8189)

Organizing or maintaining reaction/strike forces or similar

forces (Sec. 261, (u), OEC);

Illegal release of prisoners (Sec. 261 (n), OEC);

Use of security personnel or bodyguards by candidates,

whether or not such bodyguards are regular members or
officers of the Philippine National Police or Armed Forces of
the Philippines or other law enforcement agency (Sec. 261
(t), OEC, as amended by Sec. 33, RA 7166);

Release, disbursement or expenditures of public funds (Sec.

261 (v), OEC);Construction of public works, delivery of
materials for public works and issuance of treasury warrants
or similar devices for a future undertaking chargeable against
public funds (Sec. 261, (w) OEC).

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SEPTEMBER 28, 2013
(SAT) to OCTOBER 26,
2013 (SAT)
INFORMATIONCAMPAIGN PERIOD
Making any donation or gift in cash or in kind, etc. (Sec. 104,
OEC);Use of armored/ land/ water/ air craft. (Sec. 261 (r),
OEC);Appointing or using special policemen, special/
confidential agents or the like. (Sec. 261 (m), OEC);

SEPTEMBER 28, 2013

(SAT) to OCTOBER 28,
2013 (MON) Issuance of appointments, promotions, creation of new
positions, or giving of salary increases.

OCTOBER 27, 2013 EVE OF PLEBISCITE DAY Campaigning (Sec. 3, OEC);

(SUN)

Giving, accepting free transportation, foods, drinks, and

things of value (Sec. 89, OEC);

Selling, furnishing, offering, buying, serving or taking

intoxicating liquor (Sec. 261 (dd), (1), OEC).(NOTE: Acts
mentioned in the three (3) preceding paragraphs are
prohibited until election day.)

OCTOBER 28, 2013

(MON)
PLEBISCITE DAYCasting of votes- (from 7:00
a.m. to 3:00 p.m. simultaneous with the voting for
the Barangay and SK Elections)Counting of votes
shall be after the counting of votes for Barangay
and SK Elections)Convening of the City Plebiscite
Board of Canvassers (6:00 p.m.)
Vote-buying and vote selling (Sec. 261 (a), OEC);Voting
more than once or in substitution of another (Sec. 261 (z) (2)
and (3), OEC);Campaigning (Sec. 3, OEC);Soliciting votes or
undertaking any propaganda for or against any candidate or
any political party within the polling place or within thirty
(30) meters thereof (Sec. 261 (cc) (6), OEC);Selling,
furnishing, offering, buying, serving or taking intoxicating
liquor, etc. (Sec. 261 (dd) (1), OEC);Opening of booths or
stalls for the sale, etc., of wares, merchandise or
refreshments, within thirty (30) meters radius from the
polling place. (Sec. 261 (dd) (2) OEC);Giving and/or
accepting free transportation, food, drinks and things of value
(Sec. 89, OEC);Holding of fairs, cockfights, boxing, horse
races or similar sports. (Sec. 261 (dd) (3), OEC).

Resolution No. 9772, on the other hand, provided that copies of R.A. No. 10360 be posted 11 and that information campaigns be conducted prior to the plebiscite. 12

On 9 October 2013, Cagas filed the present petition for prohibition. Cagas cites three causes of action:

1. COMELEC is without authority or legal basis to AMEND or MODIFY Section 46 of Republic Act No. 10360 by mere MINUTE RESOLUTION because it is only
CONGRESS who can validly amend, repel [sic] or modify existing laws, thus COMELEC [sic] act in suspending the holding of a plebiscite is unconstitutional; 13

2. COMELEC is without authority or legal basis to hold a plebiscite this coming October 28, 2013 for the creation of the Province of Davao Occidental because Section 46 of
Republic Act No. 10360 has already lapsed;14 and

3. Petitioner has no other adequate remedy to prevent the COMELEC from holding the Plebiscite on October 28, 2013 for the creation of the Province of Davao Occidental
except through the issuance of Temporary Restraining Order and Preliminary Injunction because COMELEC had already commenced the preparation for holding of the
Plebiscite for the creation of the Province of Davao Occidental synchronizing it with that of the Barangay and SK elections this coming October 28, 2013. 15

On 17 October 2013, we issued a Resolution requiring respondents COMELEC, represented by its Chairperson, Hon. Sixto Brillantes, Jr., and the Provincial Election Officer
of Davao del Sur, represented by Atty. Ma. Febes Barlaan, to file their comment to Cagas petition not later than 21 October 2013.

The respondents, through the Office of the Solicitor General (OSG), filed their comment on 21 October 2013. The OSG raises the following arguments:

1. The 1987 Constitution does not fix the period to hold a plebiscite for the creation of a local government unit;

2. There was logistical and financial impossibility for the COMELEC to hold a plebiscite at a mere two months notice;

3. Legislative intent is for R.A. No. 10360 to be implemented;

4. Public interest demands that the plebiscite be conducted; and

34
 5. The COMELEC did not abuse its discretion in issuing the questioned Resolutions. 16

In this Resolution, we simplify the issues raised by the parties, thus: Did the COMELEC act without or in excess of its jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction when it resolved to hold the plebiscite for the creation of the Province of Davao Occidental on 28 October 2013, simultaneous with
the Barangay Elections?

We answer in the negative.

The COMELECs power to administer elections

includes the power to conduct a plebiscite beyond the schedule

prescribed by law.

The conduct of a plebiscite is necessary for the creation of a province. Sections 10 and 11 of Article X of the Constitution provide that:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

Sec. 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and
municipalities shall retain their basic autonomy and shall be entitled to their own local executive and legislative assemblies. The jurisdiction of the metropolitan authority that
will thereby be created shall be limited to basic services requiring coordination. Section 10, Article X of the Constitution emphasizes the direct exercise by the people of their
sovereignty. After the legislative branchs enactment of a law to create, divide, merge or alter the boundaries of a local government unit or units, the people in the local
government unit or units directly affected vote in a plebiscite to register their approval or disapproval of the change. 17

The Constitution does not specify a date as to when plebiscites should be held. This is in contrast with its provisions for the election of members of the legislature in Section
8, Article VI18 and of the President and Vice-President in Section 4, Article VII. 19 The Constitution recognizes that the power to fix the date of elections is legislative in nature,
which is shown by the exceptions in previously mentioned Constitutional provisions, as well as in the election of local government officials. 20

Section 10 of R.A. No. 7160 furnishes the general rule as to when a plebiscite may be held:

Sec. 10. Plebiscite Requirement. No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved
by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on
Elections (COMELEC) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixed
another date.

Section 46 of R.A. No. 10360, however, specifically provides that the plebiscite for the creation of the province of Davao Occidental be held within 60 days from the
effectivity of R.A. No. 10360, or until 6 April 2013. 21 Cagas claims that R.A. No. 10360 "did not confer express or implied power to COMELEC to exercise discretion when
the plebiscite for the creation of the Province of Davao Occidental will be held. On the contrary, said law provides a specific period when the COMELEC should conduct a
plebiscite."22 Cagas views the period "60 days from the effectivity" in R.A. No. 10360 as absolute and mandatory; thus, COMELEC has no legal basis to hold a plebiscite on
28 October 2013.

The Constitution, however, grants the COMELEC the power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall."23 The COMELEC has "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."24 The text and intent of Section 2(1) of Article IX(C) is to give COMELEC "all the necessary and incidental powers for it to
achieve the objective of holding free, orderly, honest, peaceful and credible elections." 25

Sections 5 and 6 of Batas Pambansa Blg. 881 (B.P. Blg. 881) the Omnibus Election Code, provide the COMELEC the power to set elections to another date.

Sec. 5. Postponement of election.- When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other
analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision, the Commission, motu proprio
or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone
the election therein to a date which should be 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 for such postponement or suspension of the election or failure to elect.

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.

The tight time frame in the enactment, signing into law, and effectivity of R.A. No. 10360 on 5 February 2013, coupled with the subsequent conduct of the National and
Local Elections on 13 May 2013 as mandated by the Constitution, rendered impossible the holding of a plebiscite for the creation of the province of Davao Occidental on or
before 6 April 2013 as scheduled in R.A. No. 10360. We also take judicial notice of the COMELECs burden in the accreditation and registration of candidates for the Party-
List Elections.26 The logistic and financial impossibility of holding a plebiscite so close to the National and Local Elections is unforeseen and unexpected, a cause analogous
to force majeure and administrative mishaps covered in Section 5 of B.P. Blg. 881. The COMELEC is justified, and did not act with grave abuse of discretion, in postponing
the holding of the plebiscite for the creation of the province of Davao Occidental to 28 October 2013 to synchronize it with the Barangay Elections.

The OSG illustrated the COMELECs predicament in this manner:

To be sure, at the time R.A. No. 10360 was approved, the COMELEC had to deliver and accomplish the following, among many others, for the May 2013 National and Local
Elections:

35
 1. Preparation of the Project of Precincts indicating the total number of established precincts and the number of registered voters per precincts [sic] in a city or
municipality.

2. Constitution of the Board of Election Inspectors including the precincts where they will be assigned and the barangay where the precinct is located.

3. Inspection, verification and sealing of the Book of Voters containing the approved voter registration records of registered voters in the particular precinct which
must be inspected, verified, and sealed.

4. Finalization and printing of the computerized voters list for use on election day.

5. The preparation, bidding, printing and distribution of the voters information.

6. Configuration, testing, and demonstration of the PCOS machines and their distribution to the different precincts.

To comply with the 60-day period to conduct the plebiscite then, as insisted, petitioner would have the COMELEC hold off all of its above tasks. If COMELEC abandoned
any of its tasks or did not strictly follow the timetable for the accomplishment of these tasks then it could have put in serious jeopardy the conduct of the May 2013 National
and Local Elections. The COMELEC had to focus all its attention and concentrate all its manpower and other resources on its preparation for the May 2013 National and
Local Elections, and to ensure that it would not be derailed, it had to defer the conduct of all plebiscites including that of R.A. No. 10360.

Parenthetically, for the COMELEC to hold the plebiscite for the ratification of R.A. No. 10360 within the fixed period, it would have to reconfigure for said purpose some of
the PCOS machines that were already configured for the May 2013 National and Local Elections; or in the alternative, conduct the plebiscite manually.

However, conducting the plebiscite manually would require another set of ballots and other election paraphernalia. Besides, another set of election materials would also
require additional logistics for printing, checking, packing, and deployment thereof. Lest it be forgotten, that all of these things should undergo public bidding.

Since the plebiscite would be a separate undertaking, the COMELEC would have to appoint separate sets of boards of election inspectors, tellers, and other personnel to
canvass the result of the plebiscite all of which would have entailed further cost for the COMELEC whose budget had already been overly stretched to cover the May 2013
National and Local Elections.

More importantly, it bears stressing that the COMELEC was not given a special budget to defray the cost of the plebiscite. In fact, the COMELEC had to take 11 million
from its savings and from the Barangay Elections budget to finance the plebiscite to ratify R.A. No. 10360 on October 28, 2013.

The COMELECs questioned Resolution then directing the holding of the plebiscite for the ratification of R.A. No. 10360 simultaneously with the Barangay Elections was
not an abuse of its discretion, as alleged, but simply an exercise of prudence, because as the COMELEC itself noted, doing so "will entail less expense than holding it
separately." [p. 9, Resolution No. 13-0926, Annex B, Petition.]

The determination of the feasibility of holding a plebiscite on a given date is within the competence and discretion of the COMELEC. Petitioner cannot therefore simply
insist that the COMELEC should have complied with the period specified in the law when doing so would be virtually impossible under the circumstances. 27

This Court has rejected a too literal interpretation of election laws in favor of holding free, orderly, honest, peaceful and credible elections.

In Pangandaman v. COMELEC,28 Lining Pangandaman (Pangandaman) filed a petition for certiorari and prohibition with prayer for temporary restraining order and
preliminary injunction to challenge the Omnibus Order of the COMELEC En Banc. The COMELEC En Banc ordered the conduct of special elections in certain
municipalities in Lanao del Sur on 18 and 25 July 1998, or more than 30 days after the failure of elections on 11 May 1998. Like Cagas, Pangandaman insisted on a strict
compliance with the schedule of the holding of special elections. Pangandaman asserted that COMELECs authority to call a special election was limited by the 30-day
period and that Congress had the power to call a special election after the 30th day. We admonished Pangandaman against a too literal interpretation of the law, and protected
COMELECs powers against the straitjacketing by procedural rules.

It is a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution and that the spirit, rather than the letter of the law
determines its construction; for that reason, a statute must be read according to its spirit and intent. Thus, a too literal interpretation of the law that would lead to absurdity
prompted this Court to

x x x admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the intention of its authors. That intention is usually
found not in the letter that killeth but in the spirit that vivifieth x x x

Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power to "enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall." There can hardly be any doubt that the text and intent of this constitutional provision is to give COMELEC all the
necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful and credible elections.

Pursuant to this intent, this Court has been liberal in defining the parameters of the COMELECs powers in conducting elections. As stated in the old but nevertheless still
very much applicable case of Sumulong v. COMELEC:

Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory. The Commission on Elections, because of its
fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly
advantageous position to decide complex political questions x x x. There are no ready made formulas for solving public problems. Time and experience are necessary to
evolve patterns that will serve the ends of good government. In the matter of the administration of laws relative to the conduct of election x x x we must not by any excessive
zeal take away from the Commission on Elections that initiative which by constitutional and legal mandates properly belongs to it.

More pointedly, this Court recently stated in Tupay Loong v. COMELEC, et al., that "Our elections are not conducted under laboratory conditions. In running for public
offices, candidates do not follow the rules of Emily Post. Too often, COMELEC has to make snap judgments to meet unforeseen circumstances that threaten to subvert the
will of our voters. In the process, the actions of COMELEC may not be impeccable, indeed, may even be debatable. We cannot, however, engage in a swivel chair criticism of
these actions often taken under very difficult circumstances."

36
The purpose of the governing statutes on the conduct of elections

x x x is to protect the integrity of elections to suppress all evils that may violate its purity and defeat the will of the voters. The purity of the elections is one of the most
fundamental requisites of popular government. The Commission on Elections, by constitutional mandate, must do everything in its power to secure a fair and honest canvass
of the votes cast in the elections. In the performance of its duties, the Commission must be given a considerable latitude in adopting means and methods that will insure the
accomplishment of the great objective for which it was created to promote free, orderly, and honest elections. The choice of means taken by the Commission on Elections,
unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with.

Guided by the above-quoted pronouncement, the legal compass from which the COMELEC should take its bearings in acting upon election controversies is the principle that
" clean elections control the appropriateness of the remedy."

In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be later than thirty (30) days after the cessation of the cause of the postponement
or suspension of the election or the failure to elect; and, 2.] it should be reasonably close to the date of the election not held, suspended or which resulted in the failure to
elect.1avvphi1 The first involves a question of fact. The second must be determined in the light of the peculiar circumstances of a case. Thus, the holding of elections within
the next few months from the cessation of the cause of the postponement, suspension or failure to elect may still be considered "reasonably close to the date of the election
not held."

In this case, the COMELEC can hardly be faulted for tardiness. The dates set for the special elections were actually the nearest dates from the time total/partial failure of
elections was determined, which date fell on July 14, 1998, the date of promulgation of the challenged Omnibus Order. Needless to state, July 18 and 25, the dates chosen by
the COMELEC for the holding of special elections were only a few days away from the time a total/partial failure of elections was declared and, thus, these were "dates
reasonably close" thereto, given the prevailing facts herein. Furthermore, it bears stressing that in the exercise of the plenitude of its powers to protect the integrity of
elections, the COMELEC should not and must not be straitjacketed by procedural rules in the exercise of its discretion to resolve election disputes. 29

In Sambarani v. COMELEC,30 petitioners were candidates for punong barangay in different barangays in Lanao del Sur. There was a failure of elections in the 15 July 2002
Synchronized Barangay and Sangguniang Kabataan (SK) Elections, and special elections were set on 13 August 2002 in the affected barangays. No special elections were
held on 13 August 2002, so petitioners asked the COMELEC to declare a failure of elections in their barangays and to hold another special election. The COMELEC,
however, directed the Department of Interior and Local Government to appoint the Barangay Captains, Barangay Kagawads, SK Chairmen, and SK

Kagawads in the affected barangays. The COMELEC stated that it is no longer in a position to call for another special election since Section 6 of the Omnibus Election Code
provides that "special elections shall be held on a date reasonably close to the date of the election not held, but not later than thirty days after cessation of the cause of such
postponement."

We directed the COMELEC to conduct special elections and stated that the deadline cannot defeat the right of suffrage of the people.

The prohibition on conducting special elections after thirty days from the cessation of the cause of the failure of elections is not absolute.1wphi1 It is directory, not
mandatory, and the COMELEC possesses residual power to conduct special elections even beyond the deadline prescribed by law. The deadline in Section 6 cannot defeat the
right of suffrage of the people as guaranteed by the Constitution. The COMELEC erroneously perceived that the deadline in Section 6 is absolute. The COMELEC has broad
power or authority to fix other dates for special elections to enable the people to exercise their right of suffrage. The COMELEC may fix other dates for the conduct of special
elections when the same cannot be reasonably held within the period prescribed by law. 31

It is thus not novel for this Court to uphold the COMELECs broad power or authority to fix other dates for a plebiscite, as in special elections, to enable the people to
exercise their right of suffrage. The COMELEC thus has residual power to conduct a plebiscite even beyond the deadline prescribed by law. The date 28 October 2013 is
reasonably close to 6 April 2013, and there is no reason why the plebiscite should not proceed as scheduled by the COMELEC. The OSG points out that public interest
demands that the plebiscite be conducted.

At this point, there is nothing more for the COMELEC to do except to hold the plebiscite as scheduled on October 18, [sic] 2013. In fact, the COMELEC already scheduled
the shipment and deployment of the election paraphernalia to all the precincts in Davao del Sur, except Davao City.

The COMELEC had put so much work and effort in its preparation for the conduct of the plebiscite. A substantial amount of funds have also been defrayed for the following
election undertakings:

1 Bidding for election paraphernalia;

2 Cleansing of voters registration list;

3 Preparation, bidding, printing and distribution of the voters information;

4 Preparation and completion of the projects of precincts;

5 Printing of ballots;

6 Constitution of the Board of Election Inspectors;

7 Training and assignment of personnel; and

8 Information dissemination campaign.

To demand now that the COMELEC desist from holding the plebiscite would be an utter waste of time, effort and resources, not to mention its detriment to public interest
given that public funds are involved.32

In election law, the right of suffrage should prevail over mere scheduling mishaps in holding elections or plebiscites. Indeed, Cagas insistence that only Congress can cure the
alleged legal infirmity in the date of holding the plebiscite for the creation of the Province of Davao Occidental fails in light of the absence of abuse of discretion of the

37
COMELEC. Finally, this Court finds it unacceptable to utilize more of our taxpayers time and money by preventing the COMELEC from holding the plebiscite as now
scheduled.

WHEREFORE, we DISMISS the petition for lack of merit.

SO ORDERED.

G.R. Nos. 166388 and 166652 January 23, 2006

ALAN PETER S. CAYETANO, Petitioner,

vs.
COMMISSION ON ELECTIONS, MA. SALVACION BUAC and ANTONIO BAUTISTA, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us for resolution are two (2) petitions for certiorari:1

1. G.R. No. 166388

The petition in this case, filed by Congressman Alan Peter S. Cayetano, representing the District of Taguig-Pateros, against the Commission on Elections (COMELEC), Ma.
Salvacion Buac and Antonio Bautista, mainly assails the Resolution of the COMELEC en banc dated December 8, 2004 in EPC No. 98-102 declaring the ratification and
approval, through a plebiscite, of the conversion of the Municipality of Taguig, Metro Manila, into a highly urbanized city. Private respondents are residents and duly
registered voters of Taguig.

2. G.R. No. 166652

The petition here, filed by the same petitioner against the same respondents, questions the (a) COMELEC Resolution dated January 28, 2005 declaring the said Resolution of
December 8, 2004 final and executory; and (b) the recording of the said Resolution in the COMELECs Book of Entry of Judgments dated January 28, 2005.

The facts are:

On April 25, 1998, the COMELEC conducted a plebiscite in Taguig, Metro Manila on the conversion of this municipality into a highly urbanized city as mandated by
Republic Act No. 8487.2 The residents of Taguig were asked this question: "Do you approve the conversion of the Municipality of Taguig, Metro Manila into a highly
urbanized city to be known as the City of Taguig, as provided for in Republic Act No. 8487? "

On April 26, 1998, the Plebiscite Board of Canvassers (PBOC), without completing the canvass of sixty-four (64) other election returns, declared that the "No" votes won,
indicating that the people rejected the conversion of Taguig into a city.

However, upon order of the COMELEC en banc, the PBOC reconvened and completed the canvass of the plebiscite returns, eventually proclaiming that the negative votes
still prevailed.

Alleging that fraud and irregularities attended the casting and counting of votes, private respondents, filed with the COMELEC a petition seeking the annulment of the
announced results of the plebiscite with a prayer for revision and recount of the ballots. The COMELEC treated the petition as an election protest, docketed as EPC No. 98-
102. It was raffled to the Second Division.

Petitioner intervened in the case. He then filed a motion to dismiss the petition on the ground that the COMELEC has no jurisdiction over an action involving the conduct of a
plebiscite. He alleged that a plebiscite cannot be the subject of an election protest.

The COMELEC Second Division issued a Resolution granting petitioners motion and dismissing the petition to annul the results of the Taguig plebiscite for lack of
jurisdiction. The COMELEC en banc affirmed this Resolution.

Aggrieved, private respondents filed with this Court a petition for certiorari and mandamus, docketed as G.R. No. 155855, entitled Ma. Salvacion Buac and Antonio Bautista
vs. COMELEC and Alan Peter S. Cayetano. On January 26, 2004, we rendered a Decision reversing the COMELECs Resolution. We held that the controversy on the
conduct of the Taguig plebiscite "is a matter that involves the enforcement and administration of a law relative to a plebiscite. It falls under the jurisdiction of the COMELEC
under Section 2 (1), Article IX (C) of the Constitution authorizing it to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall." Thus, we directed the COMELEC "to reinstate the petition to annul the results of the 1998 Taguig plebiscite and to decide it without
delay." Petitioner filed a motion for reconsideration but we denied the same in a Resolution dated February 24, 2004.

Accordingly, on April 19, 2004, the COMELEC Second Division issued an Order in EPC No. 98-102 constituting the committees for the revision/recount of the plebiscite
ballots.

On April 28, 2004, the revision/recount proceedings commenced and upon its termination, the Committees on Revision submitted their complete and final reports.

Thereafter, the COMELEC Second Division set the case for hearing. As no witnesses were presented by petitioner, the parties were directed to submit their respective
memoranda, which they did.

38
However, the COMELEC Second Division failed to render a decision as the required number of votes among its members could not be obtained. Consequently, pursuant to
Section 5 (b),3 Rule 3 of the COMELEC Rules of Procedure, the case was elevated to the Commission en banc for resolution.4

On November 24, 2004, the COMELEC en banc issued an Order considering the case submitted for resolution. On December 8, 2004, it issued the assailed Resolution
declaring and confirming the ratification and approval of the conversion of the Municipality of Taguig into a highly urbanized city, thus:

"WHEREFORE, premises considered, the instant petition is hereby GRANTED.

"Considering that 21,105 affirmative votes represent the majority and the highest votes obtained during the 1998 Taguig Plebiscite, this Commission hereby DECLARES and
CONFIRMS the RATIFICATION and APPROVAL of the conversion of the municipality of Taguig into a highly urbanized city.

"Let the Election Officer of Taguig and the Department of Interior and Local Government (DILG) implement this Resolution.

"SO ORDERED."

Hence, petitioner filed the instant petition for certiorari in G.R. No. 166388, alleging that in rendering the said Resolution, the COMELEC acted with grave abuse of
discretion.

On January 28, 2005, the COMELEC en banc, upon motion of private respondents, issued an Order declaring its Resolution of December 8, 2004 final and executory as of
January 9, 2005 in conformity with Section 13 (a),5 Rule 18 of the COMELEC Rules of Procedure. On the same date, the Resolution of December 8, 2004 was recorded in its
Book of Entry of Judgments.

On January 31, 2005, petitioner again filed with this Court a petition for certiorari, docketed as G.R. No. 166652, challenging the COMELEC en banc Order of January 28,
2005 and the corresponding Entry of Judgment. Subsequently, we directed that the case be consolidated with G.R. No. 166388. 6

At the outset, petitioner himself makes it clear that "for the record, as the representative of Taguig and Pateros he is for the cityhood of Taguig. Conversion of a
municipality into a highly urbanized city per se is not appalling; in fact, efforts towards its realization should be welcomed. But (he) firmly believes that Taguig must become
a city the right way, by a fair count of votes and not by twisting the electoral will."7

Petitioner contends that "the revision of the plebiscite ballots cannot be relied upon for the determination of the will of the electorate" because "the revision is incomplete."8
He claims that:

"Based on the Final Report of the Committee on Revision for each of the eight (8) Revision Committees, the revision of ballots yielded a total of 15,802 votes for Yes and a
total of 12,602 votes for No. The revision committee thus canvassed only a total of 28,404 ballots."9

Besides, "many irregularities, frauds and anomalies attended the revision proceedings." 10 He maintains that the COMELEC "acted with grave abuse of discretion amounting
to lack or in excess of jurisdiction" in confirming the ratification and approval of the conversion of Taguig into a highly urbanized city.

In their respective comments, the Solicitor General, on behalf of the COMELEC, and the private respondents vehemently disputed petitioners allegations and prayed that the
instant petitions be dismissed for lack of merit.

Both petitions must fail.

It is clear from petitioners allegations that the matters being raised the alleged incomplete canvass of plebiscite votes during the revision proceedings and the irregularities,
frauds, and anomalies purportedly committed therein are factual in nature. They involve an examination of the admissibility and sufficiency of the evidence presented
during the revision proceedings before the COMELEC. Certainly, this we cannot do in the present special civil actions for certiorari under Rule 65 of the 1987 Rules of Civil
Procedure, as amended. Section 1 of the same Rule confines the power of this Court to resolve issues mainly involving jurisdiction, including grave abuse of discretion
amounting to lack or in excess of jurisdiction attributed to the public respondent.11

Nonetheless, in the interest of substantial justice and considering likewise the interest of the residents and voters of the City of Taguig, we still reviewed the evidence and
found that petitioner erred when he alleged that the revision of ballots yielded a total of "15,802 votes for Yes and a total of 12,602 votes for No."

As shown by the records, the COMELEC considered not only the total number of votes reflected in the Final Canvassing Report of the Taguig PBOC, but also the voting
results based on (1) the physical count of the ballots; (2) the returns of the uncontested precincts; and (3) the appreciation of the contested ballots, all summed up and tallied
as follows:12

Affirmative Negative

Total Number of Votes Per PBOC Canvassing Report 19,413 21,890

Minus: Number of Invalid Votes 253 419

39
 Minus: Number of Votes Deducted from the Plebiscite
0 2,024
Returns After Physical Count (Table D)

Plus: Number of Votes Added After Physical Count (Table D) 1,936 0

Plus: Credited Claimed Ballots 9 13

Total 21,105 19,460

The above factual findings of the COMELEC supported by evidence, are accorded, not only respect, but finality. 13 This is so because "the conduct of plebiscite and
determination of its result have always been the business of the COMELEC and not the regular courts. Such a case involves the appreciation of ballots which is best left to the
COMELEC. As an independent constitutional body exclusively charged with the power of enforcement and administration of all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum and recall, the COMELEC has the indisputable expertise in the field of election and related laws."14 Its acts, therefore, enjoy
the presumption of regularity in the performance of official duties. 15

In fine, we hold that in issuing the challenged Resolution and Order in these twin petitions, the COMELEC did not gravely abuse its discretion.

WHEREFORE, the instant petitions are DISMISSED for lack of merit. Costs against petitioner.

SO ORDERED.

G.R. No. 217725

GLENN A CHIONG and ANG KAPATIRAN PARTY, represented by NORMAN V. CABRERA, Petitioners,
vs.
SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT FRANKLIN M. DRILON; HOUSE OF REPRESENTATIVES, represented by
SPEAKER FELICIANO S. BELMOTE, JR.; COMMISSION ON ELECTIONS, represented by ACTING CHAIRPERSON CHRISTIAN ROBERT S. LIM;
ADVISORY COUNCIL, represented by UNDERSECRETARY LOUIS NAPOLEON C. CASAMBRE; TECHNICAL EVALUATION COMMITTEE, represented
by DOST SECRETARY MARIO G. MONTEJO; DEPARTMENT OF BUDGET AND MANAGEMENT, headed by SECRETARY FLORENCIO B. ABAD,
Respondents.

DECISION

REYES, J.:

This petition for certiorari1 and/or prohibition with prayer for the issuance of a writ of preliminary injunction and/or a temporary restraining order, assails the constitutionality
of Sections 8, 9, 10 and 11 of Republic Act (R.A.) No. 8436,2 as amended by Section 93 of R.A. No. 9369,4 providing for the creation of an Advisory Council (AC) and a
Technical Evaluation Committee (TEC), on the ground that it encroaches on the Commission on Elections' (COMELEC) mandate to administer and enforce all laws relating
to the elections as provided for in Section 2( 1),5 Article IX-C of the 1987 Constitution.

The Facts

The factual background of this case dates back to the enactment of R.A. No. 8436 on December 22, 1997 authorizing the adoption of an automated election system (AES) in
the May 11, 1998 national and local elections and onwards. On January 23, 2007, R.A. No. 9369 was signed into law, amending R.A. No. 8436. Of particular relevance in
R.A. No. 9369 are Sections 8, 9, 10 and 11 which calls for the creation of the AC and the TEC.

In Roque, Jr., et al. v. COMELEC, et al.,6 the Court stated that the AC is to recommend, among other functions, the most appropriate, secure, applicable and cost-effective
technology to be applied to the AES; while the TEC is tasked to certify, through an established international certification committee, not later than three months before the
elections, by categorically stating that the AES, inclusive of its hardware and software components, is operating properly and accurately based on defined and documented
standards.7

Nevertheless, almost eight years after the passage of R.A. No. 9369, and almost six years after the conclusion of the 2010 elections, and just several months before the 2016
elections, Glenn Chong and Ang Kapatiran Party (petitioners) came to this Court to assail the constitutionality of the creation of the AC and the TEC. According to the
petitioners: (1) the AC and the TEC are so patently incompatible with a functioning COMELEC; (2) a mere AC should not be allowed to dictate upon the COMELEC in
regard with the technology to be applied in the AES; and (3) the recommendation of the AC for the COMELEC to re-use the Precinct Count Optical Scan machines,
Consolidation and Canvassing System, peripherals, laptops, equipment, software, etcetera, in the 2016 elections, as well as its past actions, are patent nullities. In compliance
with the Court's Resolution8 dated June 16, 2015, the respondents submitted its Comment.9 Summing up the arguments of the respondents, they essentially stated that: (1)
the existence of the AC and the TEC does not limit or prevent the exercise of the COMELEC's constitutional mandate to enforce election laws; (2) the AC and the TEC
merely ensure that the COMELEC will put in place an effective AES that will clearly and accurately reflect the will of the sovereign people; (3) the power to provide these
safeguards is within the authority of the Congress, whose power includes the power to ensure the faithful execution of its policies; and (4) the assailed provisions of R.A. No.
8436, as amended by Section 9 of R.A. No. 9369 enjoys the presumption of constitutionality.
40
 The Issue

The crux of this petition is whether Sections 8, 9, 10 and 11 of R.A. No. 8436, as amended by Section 9 of R.A. No. 9369, insofar as they provide for the creation of the AC
and the TEC, are unconstitutional for allegedly being violative of Section 2(1), Article IX-C of the 1987 Constitution.

Ruling of the Court

The petition has no merit.

The petitioners conclude that with the creation of the AC and the TEC, pursuant to Sections 8, 9, 10 and 11 of R.A. No. 8436, the Congress undermine the independence of
the COMELEC and infringe upon its power.

The Court, however, finds that the petitioners' thesis finds no support in the evidence presented. A careful examination of the assailed provisions would reveal that the AC and
the TEC's functions are merely advisory and recommendatory in nature. The AC' s primordial task is to recommend the most appropriate technology to the AES, while the
TEC's sole function is to certify that the AES, including its hardware and software components, is operating properly, securely and accurately, in accordance with the
provisions of law.

The functions of the AC are recommendatory, as can be gleaned from the assailed provision itself in Section 9 of R.A. No. 8436 which provides that the functions of the AC
are merely to recommend, to provide advice and/or assistance, and to participate as nonvoting members with respect to the COMELEC's fulfillment of its mandate and
authority to use the AES, and which in all instances, is subject to the approval and final decision of the COMELEC. On the other hand, the TEC's exclusive function is to
certify, through an established international certification entity to be chosen by the COMELEC from the recommendations of the AC that the AES, including its hardware and
software components, is operating properly, securely, and accurately, in accordance with the provisions of law.

The Court has conspicuously observed that the petitioners expediently removed in their petition the following paragraph when they quoted Section 9 of R.A. No. 9369 which
amended Section 9 of R.A. No. 8436, which recognizes the authority of the COMELEC to enforce the said laws:

Nothing in the role of the Council or any outside intervention or influence shall be construed as an abdication or diminution of the Commission's authority and responsibility
for the effective development, management and implementation of the AES and this Act.

Evidently, the AC and the TEC were created to aid the COMELEC in fulfilling its mandate and authority to use an effective AES for free, orderly, honest, peaceful, credible
and informed elections. The actions of the AC and the TEC neither bind nor prohibit the COMELEC from enforcing and administering election laws.

Moreso, the AC and the TEC are not permanent in nature. This is evident in Sections 8 and 11 of R.A. No. 8436, as amended.1awp++i1 The AC shall be convened not later
than 18 months prior to the next scheduled electoral exercise, and deactivated six months after completion of canvassing, while the TEC shall be immediately convened
within 10 days after the effectivity of R.A. No. 9369; however, the TEC shall make the certification not later than three months before the date of the electoral exercises.

Lastly, the petitioners have failed to discharge the burden of overcoming the presumption that the assailed provisions are valid and constitutional since they failed to present
substantial evidence to support their claim.

Besides, the constitutionality of R.A. No. 9369 has already been upheld by this Court in Barangay Association for National Advancement and Transparency (BANAT) Party-
List v. COMELEC. 10 In the said case, therein petitioners alleged that R.A. No. 9369 violates Section 26(1), Article VI of the 1987 Constitution, claiming that the title of
R.A. No. 9369 is misleading because it speaks of poll automation but contains substantial provisions dealing with the manual canvassing of election returns. They further
alleged that Sections 34, 37, 38, and 43 are neither embraced in the title nor germane to the subject matter of R.A. No. 9369. The Court then sustained the constitutionality of
R.A. No. 9369 holding that a title which declares a statute to be an act to amend a specified code is sufficient and the precise nature of the amendatory act need not be further
stated. Moreso, the assailed provisions dealing with the amendments to specific provisions of R.A. No. 716611 and Batas Pambansa Bilang 88112 are likewise germane to the
subject matter of R.A. No. 9369.

Settled is the rule that every law is presumed valid.13 Courts are to adopt a liberal interpretation in favor of the constitutionality of legislation, as Congress is deemed to have
enacted a valid, sensible, and just law.14 To strike down a law as unconstitutional, the petitioners have the burden to prove a clear and unequivocal breach of the Constitution.
In case of doubt in the sufficiency of proof establishing unconstitutionality, the Court must sustain legislation because to invalidate a law based on baseless supposition is an
affront to the wisdom not only of the legislature that passed it but also of the executive which approved it.15

All told, the Court finds no clear violation of the Constitution which would warrant a pronouncement that Sections 8, 9, 10 and 11 of R.A. No. 8436, as amended by Section 9
of R.A. No. 9369, are unconstitutional and void. The power to enforce and administer R.A. No. 8436, as amended by R.A. No. 9369, is still exclusively lodged in the
COMELEC, and the AC and the TEC may not substitute its own opinion for the judgment of the COMELEC, thus:

In sum, the Congress created the [AC] and the TEC not to encroach upon the exclusive power of the COMELEC to enforce and administer laws relating to the conduct of the
elections, but to (1) ensure that the COMELEC is guided and assisted by experts in the field of technology in adopting the most effective and efficient [AES]; and (2) to
ensure clean elections by having disinterested parties closely monitor the COMELEC in procuring systems that operate properly, securely, and accurately. As such, it is
apparent that, through the [AC] and the TEC, the Congress merely checks and balances the power of the COMELEC to enforce and administer R.A. No. 8436, as amended by
R.A. No. 9369. It does not, however, substitute its own wisdom for that of the COMELEC.16

WHEREFORE, the instant petition is hereby DISMISSED.

SO ORDERED.

G.R. No. 171248 April 2, 2007

DR. MAHID M. MUTILAN, Petitioner,

vs.
COMMISSION ON ELECTIONS and ZALDY UY AMPATUAN, Respondents.

DECISION

41
CARPIO, J.:

The Case

Before the Court is a petition for certiorari 1 assailing the 28 December 2005 Order2 of the Commission on Elections (COMELEC) En Banc.

The Antecedent Facts

Dr. Mahid M. Mutilan (petitioner) and Zaldy Uy Ampatuan (private respondent) were candidates for Governor during the election of regional officials held on 8 August 2005
in the Autonomous Region of Muslim Mindanao (ARMM). On 11 August 2005, private respondent was proclaimed as the duly elected Governor of the ARMM.

On 19 August 2005, petitioner filed an Electoral Protest and/or Petition to Annul the Elections. The case was docketed as EPC No. 2005-3. Petitioner contested the results of
the elections in Maguindanao, Basilan, Tawi-Tawi, and Sulu on the ground that no actual election was conducted in the precincts in these four provinces. Petitioner alleged
that the voters did not actually vote and that the ballots were filled up by non-registered voters in the four provinces. Petitioner also contested the results in the municipalities
of Butig, Sultan Gumander, Calanogas, Tagoloan, Kapai, Masiu, and Maguing in Lanao del Sur where massive substitute voting allegedly took place.

The Ruling of the COMELEC Second Division

In its 21 November 2005 Order,3 the COMELEC Second Division dismissed the petition.

The COMELEC Second Division stated that during the initial hearing of the case, petitioners counsel admitted that the petition was not an election protest but one for
annulment of elections. Petitioners counsel prayed that the case be elevated to the COMELEC En Banc. Petitioner argued that "jurisdiction over the x x x petition is vested
by law in the entire Honorable Commission both in banc and in division, such that this Honorable Commission (Second Division) can legally elevate the case to the
Honorable Commission En Banc pursuant to its rules of procedure to expedite disposition of election case." 4

The COMELEC Second Division ruled that jurisdiction over petitions for annulment of elections is vested in the COMELEC En Banc. However, the elevation of the case to
the COMELEC En Banc is not sanctioned by the rules or by jurisprudence. Thus, the COMELEC Second Division dismissed the petition for lack of jurisdiction. The
dispositive portion of the 21 November 2005 Order reads:

IN VIEW OF THE FOREGOING, and considering the categorical admission of the [petitioner] that the instant petition is not an election protest but one for annulment of
elections, the Commission (Second Division) hereby DISMISSES the same for lack of jurisdiction. Sec. 4 of Republic Act 7166 confers upon the Commission sitting en
banc the exclusive jurisdiction over petition for annulment of election.

Anent the prayer to elevate the petition to annul the elections to the Commission en banc, the Commission (Second Division) hereby DENIES the same for want of requisite
authority therefor under the Rules.

SO ORDERED.5 (Emphasis in the original)

On 29 November 2005, petitioner filed a Motion for Reconsideration of the 21 November 2005 Order of the COMELEC Second Division. On 29 December 2005, petitioner
filed a Motion to Admit Verified Copies of Motion for Reconsideration. Petitioners counsel alleged that at the time of the filing of the motion for reconsideration, petitioner
was in Marawi City and his verification arrived in Manila only after the filing of the motion for reconsideration. Petitioners counsel alleged that he had to file the unverified
motion for reconsideration because he had only five days from receipt of the 21 November 2005 Order to file the motion.

The Ruling of the COMELEC En Banc

In its Order dated 28 December 2005, the COMELEC En Banc denied the motion for reconsideration for petitioners failure to verify it in accordance with Section 3, Rule 19
of the COMELEC Rules of Procedure. The COMELEC En Banc ruled that the 21 November 2005 Order of the COMELEC Second Division had become final and executory
on 8 December 2005. Thus:

ACCORDINGLY, the Clerk of the Commission, Electoral Contests Adjudication Department (ECAD)[,] this Commission, is hereby directed to immediately issue an Entry
of Judgment.

Let copies of this Order, the Entry of Judgment and Order of 21 November 2005 be furnished Her Excellency, Hon. Gloria Macapagal-Arroyo, President of the Republic of
the Philippines, the Hon. Secretary. Department of Interior and Local Government, the Hon. Chairman, Commission on Audit and the Secretary, Regional Assembly,
Autonomous Region in Muslim Mindanao (ARMM).

SO ORDERED.6 (Emphasis in the original)

Hence, the petition before this Court.

The Issues

Petitioner raises the following issues before this Court:

1. Whether the COMELEC Second Division acted in excess of its jurisdiction and with grave abuse of discretion amounting to lack or excess of jurisdiction in
dismissing the petition to annul elections and in not elevating the petition to the COMELEC En Banc.

2. Whether the COMELEC En Banc acted in excess of its jurisdiction and with grave abuse of discretion amounting to lack or excess of jurisdiction in denying
petitioners motion for reconsideration for lack of verification. 7

The Ruling of this Court

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The petition is partly meritorious

The COMELEC Second Division is Not Prohibited from Elevating the Petition to the COMELEC En Banc

Petitioner alleges that the COMELEC Second Division gravely abused its discretion in dismissing the petition for annulment of elections. Citing Section 3, Article IX-C of
the 1987 Constitution, petitioner alleges that "[p]ublic respondent en banc or in division possesses the jurisdiction conferred by the Constitution in the entire public
respondent as one whole collegial body or unit and such jurisdiction continues to exist when the public respondent sits either en banc or in a division."8 As such, the
COMELEC Second Division has the "jurisdiction and authority to take action on the petition x x x [and] to legally elevate the petition to public respondent sitting en banc."9

Section 3, Article IX-C of the 1987 Constitution provides:

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.

Under Section 3, Article IX-C of the 1987 Constitution, all election cases, including pre-proclamation controversies, must be heard and decided by a division of the
COMELEC.

In his Electoral Protest and/or Petition to Annul the Elections, petitioner seeks for a declaration of failure of elections in the contested areas. Petitioners counsel readily
admitted during the initial hearing that the petition was for annulment of elections.

Under Section 4 of Republic Act No. 7166 (RA 7166), 10 jurisdiction over postponements, failure of elections and special elections vests in the COMELEC En Banc.11 The
jurisdiction of the COMELEC En Banc over a petition to declare a failure of elections has been affirmed by this Court which ruled that a petition to declare a failure of
elections is neither a pre-proclamation controversy nor an election case. 12 A prayer to annul election results and a prayer to declare failure of elections based on allegations of
fraud, terrorism, violence or analogous causes are actually of the same nature and are denominated similarly in the Omnibus Election Code. 13 Thus, the COMELEC Second
Division has no jurisdiction over the petition to annul the elections.

Petitioner alleges that the docketing of the case as an election protest case was based on the determination of the administrative docket staff. Petitioner argues that the internal
docketing should not prejudice his rights and should not divest the COMELEC, sitting either En Banc or in Division, of its jurisdiction over the petition.

The argument has no merit. Petitioner filed an Electoral Protest and/or Petition to Annul the Elections. Petitioner cannot put the blame on the docketing clerk because he
clearly tried to avail of two different remedies, each one falling under separate jurisdictions.

The COMELEC Second Division ruled that automatic elevation of the case to the En Banc is not sanctioned by the rules or by jurisprudence. Petitioner argues that the
COMELEC Second Division should have elevated the petition to the COMELEC En Banc instead of dismissing the petition for lack of jurisdiction.

We agree with petitioner. While automatic elevation of a case erroneously filed with the Division to En Banc is not provided in the COMELEC Rules of Procedure, such
action is not prohibited. Section 4, Rule 2 of the COMELEC Rules of Procedure provides:

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. (Emphasis supplied)

Hence, there is nothing in the COMELEC Rules of Procedure to prevent the COMELEC Second Division from referring the petition to annul the elections to the COMELEC
En Banc.

Nevertheless, the petition must still fail.

In his Electoral Protest and/or Petition to Annul the Elections, petitioner alleged that no actual election was conducted in the contested areas. Petitioner further alleged that the
voters did not actually vote and the ballots were filled up by non-registered voters. Petitioner also alleged massive disenfranchisement and substitute voting. Petitioner argued
that the irregularities warrant the annulment and setting aside of the elections in the contested areas.

There are three instances where a failure of elections may be declared, thus:

(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 has 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. 14

In all three instances, there is a resulting failure to elect. 15 In the first instance, the election has not been held. In the second instance, the election has been suspended. In the
third instance, the preparation and the transmission of the election returns give rise to the consequent failure to elect; the third instance is interpreted to mean that nobody
emerged as a winner.16

None of the three instances is present in this case. In this case, the elections took place. In fact, private respondent was proclaimed the winner. Petitioner contests the results
of the elections on the grounds of massive disenfranchisement, substitute voting, and farcical and statistically improbable results. Petitioner alleges that no actual election was
conducted because the voters did not actually vote and the ballots were filled up by non-registered voters.

Petitioner alleges that "[i]n some instances, the ballots were forcibly grabbed by armed persons and the same were filled-up even before election day." 17 However, petitioner
did not cite the particulars of his allegations. Petitioner further alleges that "election returns were already filled up even before the counting started;" 18 "votes credited to

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candidates even exceeded the number of registered voters of the precincts;" 19 and "in one of the counting areas, the tally boards were filled up in the presence of some
Comelec officials even before the ballots were counted." 20 Again, petitioner failed to state the particulars of these incidents except that "[s]ome of these anomalies were
committed in the municipalities of Butig, Sultan Gumander, Calanogas, Tagoloan, Kapai and Maguing of Lanao del Sur." 21

The other allegations of petitioner, particularly the transfer of venue of the canvass without previous notice to the candidates, the proclamation of private respondent without
canvassing the results of the "farcical election" in Tawi-Tawi, the erasures in the certificate of canvass, the lack of initials by the Provincial Board of Canvassers, the use of
different inks and handwritings, and the act of the Provincial Board of Canvassers in simply noting his objections to the canvass of the returns, are not grounds that would
warrant the annulment of the elections.

In Pasandalan v. Commission on Elections, the Court explained:

To warrant a declaration of failure of election on the ground of fraud, the fraud must prevent or suspend the holding of an election, or mar fatally the preparation,
transmission, custody and canvass of the election returns. The conditions for the declaration of failure of election are stringent. Otherwise, elections will never end for losers
will always cry fraud and terrorism.

The allegations of massive substitution of voters, multiple voting, and other electoral anomalies should be resolved in a proper election protest in the absence of any of three
instances justifying a declaration of failure of election. In an election protest, the election is not set aside, and there is only a revision or recount of the ballots cast to
determine the real winner.

The nullification of elections or declaration of failure of elections is an extraordinary remedy. The party who seeks the nullification of an election has the burden of proving
entitlement to this remedy. It is not enough that a verified petition is filed. The allegations in the petition must make out a prima facie case for declaration of failure of
election, and convincing evidence must substantiate the allegations. 22

Here, the allegations of petitioner in his petition to annul the elections fail to make out a prima facie case to warrant the declaration of failure of elections.

Motion for Reconsideration Must Be Verified

Section 3, Rule 19 of the COMELEC Rules of Procedure requires that the motion for reconsideration be verified. 23 The COMELEC En Banc ruled that there was no valid
motion for reconsideration because petitioner failed to comply with Section 3, Rule 19 of the COMELEC Rules of Procedure. The COMELEC En Banc ruled that the Order
of the COMELEC Second Division had become final and executory.

Petitioner alleges that the absence of verification in his motion for reconsideration constitutes a slight or minor lapse and defect. Petitioner further alleges that the absence of
verification is merely a formal defect and does not affect the validity and efficacy of the pleading.

Petitioner alleges that the motion for reconsideration was filed within five days from receipt of the COMELEC Second Divisions Decision in accordance with Section 2,
Rule 19 of the COMELEC Rules of Procedure. Petitioner alleges that the motion for reconsideration was not verified because he was then in Marawi City. Petitioners
verification did not arrive in Manila until after the filing of the motion for reconsideration. Petitioner alleges that upon the arrival of the verification in Manila, his counsel
filed a Motion to Admit Verified Copies of Motion for Reconsideration and explained the reason for the delayed submission of petitioners verification.

Petitioners motion for reconsideration was filed on 29 November 2005. The COMELEC En Banc denied the motion for reconsideration in its Order dated 28 December
2005. Petitioner filed the Motion to Admit Verified Copies of Motion for Reconsideration only on 29 December 2005, one day after the COMELEC En Bancs denial of his
motion for reconsideration and one month after the filing of the original motion for reconsideration.

Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of
passion or personal hostility.24 It is not sufficient that a tribunal, in the exercise of its power, abused its discretion; such abuse must be grave. 25 The grave abuse of discretion
must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law. 26 In this case, we see no grave abuse of discretion on the part of the
COMELEC En Banc in denying petitioners motion for reconsideration. The Motion to Admit Verified Copies of Motion for Reconsideration was filed only after the denial
by the COMELEC En Banc of the original and unverified motion for reconsideration.

WHEREFORE, we DISMISS the petition. We AFFIRM the 28 December 2005 Order of the COMELEC En Banc.

SO ORDERED.

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