JESUS P.

MORFE, plaintiff-appellee,
vs.
AMELITO R. MUTUC, as Executive Secretary, ET AL., defendants-appellants.

Jesus P. Morfe for and his own behalf as plaintiff-appellee.

Office of the Solicitor General for defendants-appellants.

FERNANDO, J.:

Congress in 1960 enacted the Anti-Graft and Corrupt Practices Act 1 to deter public officials and employees from committing acts of
dishonesty and improve the tone of morality in public service. It was declared to be the state policy "in line with the principle that a
public office is a public trust, to repress certain acts of public officers and private persons alike which constitute graft or corrupt
practices or which may lead thereto." 2 Nor was it the first statute of its kind to deal with such a grave problem in the public service
that unfortunately has afflicted the Philippines in the post-war era. An earlier statute decrees the forfeiture in favor of the State of any
property found to have been unlawfully acquired by any public officer or employee. 3

One of the specific provisions of the Anti-Graft and Corrupt Practices Act of 1960 is that every public officer, either within thirty (30)
days after its approval or after his assumption of office "and within the month of January of every other year thereafter", as well as
upon the termination of his position, shall prepare and file with the head of the office to which he belongs, "a true detailed and sworn
statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and
family expenses and the amount of income taxes paid for the next preceding calendar: . . ." 4

In this declaratory relief proceeding, the periodical submission "within the month of January of every other year thereafter" of such
sworn statement of assets and liabilities after an officer or employee had once bared his financial condition upon assumption of
office was challenged for being violative of due process as an oppressive exercise of police power and as an unlawful invasion of
the constitutional right to privacy, implicit in the ban against unreasonable search and seizure construed together with the prohibition
against self-incrimination. The lower court in the decision appealed from sustained plaintiff, then as well as now, a judge of repute of
a court of first instance. For it, such requirement of periodical submission of such sworn statement of assets and liabilities exceeds
the permissible limit of the police power and is thus offensive to the due process clause.

We do not view the matter thus and accordingly reverse the lower court.

1. The reversal could be predicated on the absence of evidence to rebut the presumption of validity. For in this action for declaratory
relief filed with the Court of First Instance of Pangasinan on January 31, 1962, plaintiff, after asserting his belief "that it was a
reasonable requirement for employment that a public officer make of record his assets and liabilities upon assumption of office and
thereby make it possible thereafter to determine whether, after assuming his position in the public service, he accumulated assets
grossly disproportionate to his reported incomes, the herein plaintiff [having] filed within the period of time fixed in the aforesaid
Administrative Order No. 334 the prescribed sworn statement of financial condition, assets, income and liabilities, . . ." 5 maintained
that the provision on the "periodical filing of sworn statement of financial condition, assets, income and liabilities after an officer or
employee had once bared his financial condition, upon assumption of office, is oppressive and unconstitutional." 6

As earlier noted, both the protection of due process and the assurance of the privacy of the individual as may be inferred from the
prohibition against unreasonable search and seizure and self-incrimination were relied upon. There was also the allegation that the
above requirement amounts to "an insult to the personal integrity and official dignity" of public officials, premised as it is "on the
unwarranted and derogatory assumption" that they are "corrupt at heart" and unless thus restrained by this periodical submission of
the statements of "their financial condition, income, and expenses, they cannot be trusted to desist from committing the corrupt
practices defined. . . ." 7 It was further asserted that there was no need for such a provision as "the income tax law and the tax
census law also require statements which can serve to determine whether an officer or employee in this Republic has enriched
himself out of proportion to his reported income." 8

Then on February 14, 1962, came an Answer of the then Executive Secretary and the then Secretary of Justice as defendants,
where after practically admitting the facts alleged, they denied the erroneous conclusion of law and as one of the special affirmative
defenses set forth: "1. That when a government official, like plaintiff, accepts a public position, he is deemed to have voluntarily
assumed the obligation to give information about his personal affair, not only at the time of his assumption of office but during the
time he continues to discharge public trust. The private life of an employee cannot be segregated from his public life. . . ." 9 The
answer likewise denied that there was a violation of his constitutional rights against self-incrimination as well as unreasonable
search and seizure and maintained that "the provision of law in question cannot be attacked on the ground that it impairs plaintiff's
normal and legitimate enjoyment of his life and liberty because said provision merely seeks to adopt a reasonable measure of
insuring the interest or general welfare in honest and clean public service and is therefore a legitimate exercise of the police
power." 10

On February 27, 1962, plaintiff filed a Motion for judgment on the pleadings as in his opinion all his material allegations were
admitted. Then on March 10, 1962, an order was issued giving the parties thirty days within which to submit memoranda, but with or
without them, the case was deemed submitted for decision the lower court being of the belief that "there is no question of facts, . . .
the defendants [having admitted] all the material allegations of the complaint." 11
The decision, now on appeal, came on July 19, 1962, the lower court declaring "unconstitutional, null and void Section 7, Republic
Act No. 3019, insofar as it required periodical submittal of sworn statements of financial conditions, assets and liabilities of an official
or employee of the government after he had once submitted such a sworn statement upon assuming office; . . . ." 12

In Ermita-Malate Hotel and Motel Operators Association v. The Mayor of Manila, 13 it was the holding of this Court that in the
absence of a factual foundation, the lower court deciding the matter purely "on the pleadings and the stipulation of facts, the
presumption of validity must prevail." In the present case likewise there was no factual foundation on which the nullification of this
section of the statute could be based. Hence as noted the decision of the lower court could be reversed on that ground.

A more extended consideration is not inappropriate however, for as likewise made clear in the above Ermita-Malate Hotel case:
"What cannot be stressed sufficiently is that if the liberty involved were freedom of the mind or the person, the standard for the
validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects at the most rights of
property, the permissible scope of regulatory measure is wider."

Moreover, in the Resolution denying the Motion for Reconsideration in the above case, we expressly affirmed: "This is not to
discount the possibility of a situation where the nullity of a statute, executive order, or ordinance may not be readily apparent but the
threat to constitutional rights, especially those involving the freedom of the mind, present and ominous." 14 In such an event
therefore, "there should not be a rigid insistence on the requirement that evidence be presented." Also, in the same Resolution,
Professor Freund was quoted thus: "In short, when freedom of the mind is imperiled by law, it is freedom that commands a
momentum of respect; when property is imperiled, it is the lawmakers' judgment that commands respect. This dual standard may
not precisely reverse the presumption of constitutionality in civil liberties cases, but obviously it does set up a hierarchy of values
within the due process clause. 15

2. We inquire first whether or not by virtue of the above requirement for a periodical submission of sworn statement of assets and
liabilities, there is an invasion of liberty protected by the due process clause.

Under the Anti-Graft Act of 1960, after the statement of policy, 16 and definition of terms, 17 there is an enumeration of corrupt
practices declared unlawful in addition to acts or omissions of public officers already penalized by existing law. They include
persuading, inducing, or influencing another public officer to perform an act constituting a violation of rules and regulations duly
promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be
persuaded, induced, or influenced to commit such violation or offense; requesting or receiving directly or indirectly any gift, present,
share, percentage, or benefit, for himself, or for any other person, in connection with any contract or transaction between the
government and any other party, wherein the public officer in his official capacity, has to intervene under the law; requesting or
receiving directly or indirectly any gift, present, or other pecuniary or material benefit, for himself or for another, from any person for
whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or
license, in consideration for the help given or to be given; accepting or having any member of his family accept employment in a
private enterprise which has pending official business with him during the pendency thereof or within one year after its termination;
causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence; neglecting or refusing, after due demand or request, without sufficient justification, to act within a
reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in
the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue
advantage in favor of or discriminating against any other interested party; entering, on behalf of the Government, into any contract or
transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby;
having directly or indirectly financial or pecuniary interest in any business, contract or transaction in connection with which he
intervenes or takes part in his official capacity or in which he is prohibited by the Constitution or by any law from having any
interests; becoming interested directly or indirectly, for personal gain, or having a material interest in any transaction or act requiring
the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes
against the same or does not participate in such action; approving or granting knowingly any license, permit, privilege or benefit in
favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative
or dummy of one who is not so qualified or entitled and divulging valuable information of a confidential character, acquired by his
office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized
release date. 18

After which come the prohibition on private individuals, 19 prohibition on certain relatives, 20 and prohibition on Members of
Congress. 21 Then there is this requirement of a statement of assets and liabilities, that portion requiring periodical submission being
challenged here. 22 The other sections of the Act deal with dismissal due to unexplained wealth, reference being made to the
previous statute, 23 penalties for violation, 24 the vesting of original jurisdiction in the Court of First Instance as the competent
court, 25 the prescription of offenses, 26 the prohibition against any resignation or retirement pending investigation, criminal or
administrative or pending a prosecution, 27suspension and loss of benefits, 28 exception of unsolicited gifts or presents of small or
insignificant value as well as recognition of legitimate practice of one's profession or trade or occupation, 29 the separability
clause, 30 and its effectivity. 31

Nothing can be clearer therefore than that the Anti-Graft Act of 1960 like the earlier statute 32 was precisely aimed at curtailing and
minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. It is intended to further
promote morality in public administration. A public office must indeed be a public trust. Nobody can cavil at its objective; the goal to
be pursued commands the assent of all. The conditions then prevailing called for norms of such character. The times demanded
such a remedial device.

The statute was framed with that end in view. It is comprehensive in character, sufficiently detailed and explicit to make clear to all
and sundry what practices were prohibited and penalized. More than that, an effort was made, so evident from even a cursory
perusal thereof, to avoid evasions and plug loopholes. One such feature is the challenged section. Thereby it becomes much more
difficult by those disposed to take advantage of their positions to commit acts of graft and corruption.

While in the attainment of such public good, no infringement of constitutional rights is permissible, there must be a showing, clear,
categorical, and undeniable, that what the Constitution condemns, the statute allows. More specifically, since that is the only
question raised, is that portion of the statute requiring periodical submission of assets and liabilities, after an officer or employee had
previously done so upon assuming office, so infected with infirmity that it cannot be upheld as valid?

Or, in traditional terminology, is this requirement a valid exercise of the police power? In the aforesaid Ermita-Malate Hotel
decision, 33 there is a reaffirmation of its nature and scope as embracing the power to prescribe regulations to promote the health,
morals, education, good order, safety, or the general welfare of the people. It has been negatively put forth by Justice Malcolm as
"that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety and welfare of
society." 34

Earlier Philippine cases refer to police power as the power to promote the general welfare and public interest; 35 to enact such laws
in relation to persons and property as may promote public health, public morals, public safety and the general welfare of each
inhabitant; 36 to preserve public order and to prevent offenses against the state and to establish for the intercourse of citizen with
citizen those rules of good manners and good neighborhood calculated to prevent conflict of rights. 37 In his work on due process,
Mott 38 stated that the term police power was first used by Chief Justice Marshall. 39

As currently in use both in Philippine and American decisions then, police power legislation usually has reference to regulatory
measures restraining either the rights to property or liberty of private individuals. It is undeniable however that one of its earliest
definitions, valid then as well as now, given by Marshall's successor, Chief Justice Taney does not limit its scope to curtailment of
rights whether of liberty or property of private individuals. Thus: "But what are the police powers of a State? They are nothing more
or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a
quarantine law, or a law to punish offenses, or to establish courts of justice, or requiring certain instruments to be recorded, or to
regulate commerce within its own limits, in every case it exercises the same power; that is to say, the power of sovereignty, the
power to govern men and things within the limits of its domain." 40 Text writers like Cooley and Burdick were of a similar mind. 41

What is under consideration is a statute enacted under the police power of the state to promote morality in public service necessarily
limited in scope to officialdom. May a public official claiming to be adversely affected rely on the due process clause to annul such
statute or any portion thereof? The answer must be in the affirmative. If the police power extends to regulatory action affecting
persons in public or private life, then anyone with an alleged grievance can invoke the protection of due process which permits
deprivation of property or liberty as long as such requirement is observed.

While the soundness of the assertion that a public office is a public trust and as such not amounting to property in its usual sense
cannot be denied, there can be no disputing the proposition that from the standpoint of the security of tenure guaranteed by the
Constitution the mantle of protection afforded by due process could rightfully be invoked. It was so implicitly held in Lacson v.
Romero, 42 in line with the then pertinent statutory provisions 43 that procedural due process in the form of an investigation at which
he must be given a fair hearing and an opportunity to defend himself must be observed before a civil service officer or employee
may be removed. There was a reaffirmation of the view in even stronger language when this Court through Justice Tuason
in Lacson v. Roque 44 declared that even without express provision of law, "it is established by the great weight of authority that the
power of removal or suspension for cause can not, except by clear statutory authority, be exercised without notice and hearing."
Such is likewise the import of a statement from the then Justice, now Chief Justice, Concepcion, speaking for the Court in Meneses
v. Lacson; 45 "At any rate, the reinstatement directed in the decision appealed from does not bar such appropriate administrative
action as the behaviour of petitioners herein may warrant, upon compliance with the requirements of due process."

To the same effect is the holding of this Court extending the mantle of the security of tenure provision to employees of government-
owned or controlled corporations entrusted with governmental functions when through Justice Padilla in Tabora v. Montelibano, 46 it
stressed: "That safeguard, guarantee, or feeling of security that they would hold their office or employment during good behavior
and would not be dismissed without justifiable cause to be determined in an investigation, where an opportunity to be heard and
defend themselves in person or by counsel is afforded them, would bring about such a desirable condition." Reference was there
made to promoting honesty and efficiency through an assurance of stability in their employment relation. It was to be expected then
that through Justice Labrador in Unabia v. City Mayor, 47 this Court could categorically affirm: "As the removal of petitioner was
made without investigation and without cause, said removal is null and void. . . ."

It was but logical therefore to expect an explicit holding of the applicability of due process guaranty to be forthcoming. It did
in Cammayo v. Viña, 48 where the opinion of Justice Endencia for the Court contained the following unmistakable language:
"Evidently, having these facts in view, it cannot be pretended that the constitutional provision of due process of law for the removal
of the petitioner has not been complied with."
Then came this restatement of the principle from the pen of Justice J.B.L. Reyes "We are thus compelled to conclude that the
positions formerly held by appellees were not primarily confidential in nature so as to make their terms of office co-terminal with the
confidence reposed in them. The inevitable corollary is that respondents-appellees, Leon Piñero, et al., were not subject to dismissal
or removal, except for cause specified by law and within due process. . . ." 49 In a still later decision, Abaya v. Subido, 50 this Court,
through Justice Sanchez, emphasized "that the vitality of the constitutional principle of due process cannot be allowed to weaken by
sanctioning cancellation" of an employee's eligibility or "of his dismissal from service — without hearing — upon a doubtful
assumption that he has admitted his guilt for an offense against Civil Service rules." Equally emphatic is this observation from the
same case: "A civil service employee should be heard before he is condemned. Jurisprudence has clung to this rule with such
unrelenting grasp that by now it would appear trite to make citations thereof."

If as is so clearly and unequivocally held by this Court, due process may be relied upon by public official to protect the security of
tenure which in that limited sense is analogous to property, could he not likewise avail himself of such constitutional guarantee to
strike down what he considers to be an infringement of his liberty? Both on principle, reason and authority, the answer must be in
the affirmative. Even a public official has certain rights to freedom the government must respect. To the extent then, that there is a
curtailment thereof, it could only be permissible if the due process mandate is not disregarded.

Since under the constitutional scheme, liberty is the rule and restraint the exception, the question raised cannot just be brushed
aside. In a leading Philippine case, Rubi v. Provincial Board, 51 liberty as guaranteed by the Constitution was defined by Justice
Malcolm to include "the right to exist and the right to be free from arbitrary personal restraint or servitude. The term cannot be
dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy
the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common
welfare." In accordance with this case therefore, the rights of the citizens to be free to use his faculties in all lawful ways; to live and
work where he will; to earn his livelihood by any lawful calling; to pursue any avocation, are all deemed embraced in the concept of
liberty. This Court in the same case, however, gave the warning that liberty as understood in democracies, is not license. Implied in
the term is restraint by law for the good of the individual and for the greater good, the peace and order of society and the general
well-being. No one can do exactly as he pleases. Every man must renounce unbridled license. In the words of Mabini as quoted by
Justice Malcolm, "liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable
conscience of the individual."

The liberty to be safeguarded is, as pointed out by Chief Justice Hughes, liberty in a social organization, 52 implying the absence of
arbitrary restraint not immunity from reasonable regulations and prohibitions imposed in the interest of the community. 53 It was
Linton's view that "to belong to a society is to sacrifice some measure of individual liberty, no matter how slight the restraints which
the society consciously imposes." 54 The above statement from Linton however, should be understood in the sense that liberty, in the
interest of public health, public order or safety, of general welfare, in other words through the proper exercise of the police power,
may be regulated. The individual thought, as Justice Cardozo pointed out, has still left a "domain of free activity that cannot be
touched by government or law at all, whether the command is specially against him or generally against him and others." 55

Is this provision for a periodical submission of sworn statement of assets and liabilities after he had filed one upon assumption of
office beyond the power of government to impose? Admittedly without the challenged provision, a public officer would be free from
such a requirement. To the extent then that there is a compulsion to act in a certain way, his liberty is affected. It cannot be denied
however that under the Constitution, such a restriction is allowable as long as due process is observed.

The more crucial question therefore is whether there is an observance of due process. That leads us to an inquiry into its
significance. "There is no controlling and precise definition of due process. It furnishes though a standard to which governmental
action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. What then is the
standard of due process which must exist both as a procedural and as substantive requisite to free the challenged ordinance, or any
action for that matter, from the imputation of legal infirmity sufficient to spell its doom? It is responsiveness to the supremacy of
reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due
process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression.
Due process is thus hostile to any official action marred by lack of reasonableness. Correctly has it been identified as freedom from
arbitrariness. It is the embodiment of the sporting idea of fair play. It exacts fealty 'to those strivings for justice' and judges the act of
officialdom of whatever branch 'in the light of reason drawn from considerations of fairness that reflect [democratic] traditions of legal
and political thought.' It is not a narrow or 'technical conception with fixed content unrelated to time, place and circumstances,'
decisions based on such a clause requiring a 'close and perceptive inquiry into fundamental principles of our society.' Questions of
due process are not to be treated narrowly or pedantically in slavery to form or phrases." 56

It would be to dwell in the realm of abstractions and to ignore the harsh and compelling realities of public service with its ever-
present temptation to heed the call of greed and avarice to condemn as arbitrary and oppressive a requirement as that imposed on
public officials and employees to file such sworn statement of assets and liabilities every two years after having done so upon
assuming office. The due process clause is not susceptible to such a reproach. There was therefore no unconstitutional exercise of
police power.

4. The due process question touching on an alleged deprivation of liberty as thus resolved goes a long way in disposing of the
objections raised by plaintiff that the provision on the periodical submission of a sworn statement of assets and liabilities is violative
of the constitutional right to privacy. There is much to be said for this view of Justice Douglas: "Liberty in the constitutional sense
must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of
freedom. The right to be let alone is indeed the beginning of all freedom." 57 As a matter of fact, this right to be let alone is, to quote
from Mr. Justice Brandeis "the most comprehensive of rights and the right most valued by civilized men." 58

The concept of liberty would be emasculated if it does not likewise compel respect for his personality as a unique individual whose
claim to privacy and interference demands respect. As Laski so very aptly stated: "Man is one among many, obstinately refusing
reduction to unity. His separateness, his isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which
his civic obligations are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his
experience is private, and the will built out of that experience personal to himself. If he surrenders his will to others, he surrenders
his personality. If his will is set by the will of others, he ceases to be master of himself. I cannot believe that a man no longer master
of himself is in any real sense free." 59

Nonetheless, in view of the fact that there is an express recognition of privacy, specifically that of communication and
correspondence which "shall be inviolable except upon lawful order of Court or when public safety and order" 60may otherwise
require, and implicitly in the search and seizure clause, 61 and the liberty of abode 62 the alleged repugnancy of such statutory
requirement of further periodical submission of a sworn statement of assets and liabilities deserves to be further looked into.

In that respect the question is one of first impression, no previous decision having been rendered by this Court. It is not so in the
United States where, in the leading case of Griswold v. Connecticut, 63 Justice Douglas, speaking for five members of the Court,
stated: "Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is
one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace
without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its
Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." After referring to various American Supreme Court decisions, 64 Justice Douglas
continued: "These cases bear witness that the right of privacy which presses for recognition is a legitimate one."

The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the ground of its
amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed "a relationship lying within
the zone of privacy created by several fundamental constitutional guarantees." 65 It has wider implications though. The constitutional
right to privacy has come into its own.1äwphï1.ñët

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty;
in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited
government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the
citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government, safeguards a
private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection
of this private sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly important
as modern society has developed. All the forces of a technological age — industrialization, urbanization, and organization —
operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this
enclave of private life marks the difference between a democratic and a totalitarian society." 66

Even with due recognition of such a view, it cannot be said that the challenged statutory provision calls for disclosure of information
which infringes on the right of a person to privacy. It cannot be denied that the rational relationship such a requirement possesses
with the objective of a valid statute goes very far in precluding assent to an objection of such character. This is not to say that a
public officer, by virtue of a position he holds, is bereft of constitutional protection; it is only to emphasize that in subjecting him to
such a further compulsory revelation of his assets and liabilities, including the statement of the amounts and sources of income, the
amounts of personal and family expenses, and the amount of income taxes paid for the next preceding calendar year, there is no
unconstitutional intrusion into what otherwise would be a private sphere.

5. Could it be said, however, as plaintiff contends, that insofar as the challenged provision requires the periodical filing of a sworn
statement of financial condition, it would be violative of the guarantees against unreasonable search and seizure and against self-
incrimination?

His complaint cited on this point Davis v. United States. 67 In that case, petitioner Davis was convicted under an information charging
him with unlawfully having in his possession a number of gasoline ration coupons representing so many gallons of gasoline, an
offense penalized under a 1940 statute. 68 He was convicted both in the lower court and in the Circuit Court of Appeals over the
objection that there was an unlawful search which resulted in the seizure of the coupons and that their use at the trial was in
violation of Supreme Court decisions. 69 In the District Court, there was a finding that he consented to the search and seizure. The
Circuit Court of Appeals did not disturb that finding although expressed doubt concerning it, affirming however under the view that
such seized coupons were properly introduced in evidence, the search and seizure being incidental to an arrest, and therefore
reasonable regardless of petitioner's consent.
In affirming the conviction the United States Supreme Court, through Justice Douglas emphasized that the Court was dealing in this
case "not with private papers or documents, but with gasoline ration coupons which never became the private property of the holder
but remained at all times the property of the government and subject to inspection and recall by it." 70 He made it clear that the
opinion was not to be understood as suggesting "that officers seeking to reclaim government property may proceed lawlessly and
subject to no restraints. Nor [does it] suggest that the right to inspect under the regulations subjects a dealer to a general search of
his papers for the purpose of learning whether he has any coupons subject to inspection and seizure. The nature of the coupons is
important here merely as indicating that the officers did not exceed the permissible limits of persuasion in obtaining them." 71

True, there was a strong dissenting opinion by Justice Frankfurter in which Justice Murphy joined, critical of what it considered "a
process of devitalizing interpretation" which in this particular case gave approval "to what was done by arresting officers" and
expressing the regret that the Court might be "in danger of forgetting what the Bill of Rights reflects experience with police
excesses."

Even this opinion, however, concerned that the constitutional guarantee against unreasonable search and seizure "does not give
freedom from testimonial compulsion. Subject to familiar qualifications every man is under obligation to give testimony. But that
obligation can be exacted only under judicial sanctions which are deemed precious to Anglo-American civilization. Merely because
there may be the duty to make documents available for litigation does not mean that police officers may forcibly or fraudulently
obtain them. This protection of the right to be let alone except under responsible judicial compulsion is precisely what the Fourth
Amendment meant to express and to safeguard." 72

It would appear then that a reliance on that case for an allegation that this statutory provision offends against the unreasonable
search and seizure clause would be futile and unavailing. This is the more so in the light of the latest decision of this Court in
Stonehill v. Diokno, 73 where this Court, through Chief Justice Concepcion, after stressing that the constitutional requirements must
be strictly complied with, and that it would be "a legal heresy of the highest order" to convict anybody of a violation of certain
statutes without reference to any of its determinate provisions delimited its scope as "one of the most fundamental rights guaranteed
in our Constitution," safeguarding "the sanctity, of the domicile and the privacy of communication and correspondence. . . ." Such is
precisely the evil sought to be remedied by the constitutional provision above quoted — to outlaw the so-called general warrants.

It thus appears clear that no violation of the guarantee against unreasonable search and seizure has been shown to exist by such
requirement of further periodical submission of one's financial condition as set forth in the Anti-Graft Act of 1960.

Nor does the contention of plaintiff gain greater plausibility, much less elicit acceptance, by his invocation of the non-incrimination
clause. According to the Constitution: "No person shall be compelled to be a witness against himself." 74 This constitutional provision
gives the accused immunity from any attempt by the prosecution to make easier its task by coercing or intimidating him to furnish
the evidence necessary to convict. He may confess, but only if he voluntarily wills it. He may admit certain facts but only if he freely
chooses to.75 Or he could remain silent, and the prosecution is powerless to compel him to talk. 76 Proof is not solely testimonial in
character. It may be documentary. Neither then could the accused be ordered to write, when what comes from his pen may
constitute evidence of guilt or innocence. 77 Moreover, there can be no search or seizure of his house, papers or effects for the
purpose of locating incriminatory matter. 78

In a declaratory action proceeding then, the objection based on the guaranty against self-incrimination is far from decisive. It is well
to note what Justice Tuason stated: "What the above inhibition seeks to [prevent] is compulsory disclosure of incriminating
facts." 79 Necessarily then, the protection it affords will have to await, in the language of Justice J. B. L. Reyes, the existence of
actual cases, "be they criminal, civil or administrative." 80 Prior to such a stage, there is no pressing need to pass upon the validity of
the fear sincerely voiced that there is an infringement of the non-incrimination clause. What was said in an American State decision
is of relevance. In that case, a statutory provision requiring any person operating a motor vehicle, who knows that injury has been
caused a person or property, to stop and give his name, residence, and his license number to the injured party or to a police officer
was sustained against the contention that the information thus exacted may be used as evidence to establish his connection with
the injury and therefore compels him to incriminate himself. As was stated in the opinion: "If the law which exacts this information is
invalid, because such information, although in itself no evidence of guilt, might possibly lead to a charge of crime against the
informant, then all police regulations which involve identification may be questioned on the same ground. We are not aware of any
constitutional provision designed to protect a man's conduct from judicial inquiry or aid him in fleeing from justice. But, even if a
constitutional right be involved, it is not necessary to invalidate the statute to secure its protection. If, in this particular case, the
constitutional privilege justified the refusal to give the information exacted by the statute, that question can be raised in the defense
to the pending prosecution. Whether it would avail, we are not called upon to decide in this proceeding." 81

6. Nor could such a provision be nullified on the allegation that it constitutes "an insult to the personal integrity and official dignity" of
public officials. On its face, it cannot thus be stigmatized. As to its being unnecessary, it is well to remember that this Court, in the
language of Justice Laurel, "does not pass upon questions of wisdom, justice or expediency of legislation." 82 As expressed by
Justice Tuason: "It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common
sense. That is primarily and exclusively a legislative concern." 83 There can be no possible objection then to the observation of
Justice Montemayor: "As long as laws do not violate any Constitutional provision, the Courts merely interpret and apply them
regardless of whether or not they are wise or salutary." 84 For they, according to Justice Labrador, "are not supposed to override
legitimate policy and . . . never inquire into the wisdom of the law." 85
It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, 86 that only congressional power
or competence, not the wisdom of the action taken may be the basis for declaring a statute invalid. This is as it ought to be. The
principle of separation of powers has in the main wisely allocated the respective authority of each department and confined its
jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of
a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last
offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the
supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be
objections, even if valid and cogent on its wisdom cannot be sustained.

WHEREFORE, the decision of the lower court of July 19, 1962 "declaring unconstitutional, null and void Section 7, Republic Act No.
3019, insofar as it requires periodical submittal of sworn statements of financial conditions, assets and liabilities of an official or
employee of the government after he had once submitted such a sworn statement . . . is reversed." Without costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar and Angeles, JJ., concur.
Sanchez, J., reserves his vote.
Castro, J., concurs in the result.

G.R. No. 156052 March 7, 2007

SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T. CABIGAO, and BONIFACIO S. TUMBOKON, Petitioners,
vs.
HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of Manila, Respondent.

DECISION

CORONA, J.:

In this original petition for mandamus,1 petitioners Social Justice Society (SJS), Vladimir Alarique T. Cabigao and Bonifacio S.
Tumbokon seek to compel respondent Hon. Jose L. Atienza, Jr., mayor of the City of Manila, to enforce Ordinance No. 8027.

The antecedents are as follows.

On November 20, 2001, the Sangguniang Panlungsod of Manila enacted Ordinance No. 8027.2 Respondent mayor approved the
ordinance on November 28, 2001.3 It became effective on December 28, 2001, after its publication.4

Ordinance No. 8027 was enacted pursuant to the police power delegated to local government units, a principle described as the
power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals and general
welfare of the society.5 This is evident from Sections 1 and 3 thereof which state:

SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and general welfare of the
residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of [those] portions of land bounded by the Pasig
River in the north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the southwest, and Estero de Pancacan
in the west[,] PNR Railroad in the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L.
Carreon in the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F.
Manalo Street, are hereby reclassified from Industrial II to Commercial I.

xxx xxx xxx

SEC. 3. Owners or operators of industries and other businesses, the operation of which are no longer permitted under Section 1
hereof, are hereby given a period of six (6) months from the date of effectivity of this Ordinance within which to cease and desist
from the operation of businesses which are hereby in consequence, disallowed.

Ordinance No. 8027 reclassified the area described therein from industrial to commercial and directed the owners and operators of
businesses disallowed under Section 1 to cease and desist from operating their businesses within six months from the date of
effectivity of the ordinance. Among the businesses situated in the area are the so-called "Pandacan Terminals" of the oil companies
Caltex (Philippines), Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation.

However, on June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a memorandum of understanding
(MOU)6 with the oil companies in which they agreed that "the scaling down of the Pandacan Terminals [was] the most viable and
practicable option." Under the MOU, the oil companies agreed to perform the following:
Section 1. - Consistent with the objectives stated above, the OIL COMPANIES shall, upon signing of this MOU, undertake a
program to scale down the Pandacan Terminals which shall include, among others, the immediate removal/decommissioning
process of TWENTY EIGHT (28) tanks starting with the LPG spheres and the commencing of works for the creation of safety buffer
and green zones surrounding the Pandacan Terminals. xxx

Section 2. – Consistent with the scale-down program mentioned above, the OIL COMPANIES shall establish joint operations and
management, including the operation of common, integrated and/or shared facilities, consistent with international and domestic
technical, safety, environmental and economic considerations and standards. Consequently, the joint operations of the OIL
COMPANIES in the Pandacan Terminals shall be limited to the common and integrated areas/facilities. A separate agreement
covering the commercial and operational terms and conditions of the joint operations, shall be entered into by the OIL COMPANIES.

Section 3. - The development and maintenance of the safety and green buffer zones mentioned therein, which shall be taken from
the properties of the OIL COMPANIES and not from the surrounding communities, shall be the sole responsibility of the OIL
COMPANIES.

The City of Manila and the DOE, on the other hand, committed to do the following:

Section 1. - The City Mayor shall endorse to the City Council this MOU for its appropriate action with the view of implementing the
spirit and intent thereof.

Section 2. - The City Mayor and the DOE shall, consistent with the spirit and intent of this MOU, enable the OIL COMPANIES to
continuously operate in compliance with legal requirements, within the limited area resulting from the joint operations and the scale
down program.

Section 3. - The DOE and the City Mayor shall monitor the OIL COMPANIES’ compliance with the provisions of this MOU.

Section 4. - The CITY OF MANILA and the national government shall protect the safety buffer and green zones and shall exert all
efforts at preventing future occupation or encroachment into these areas by illegal settlers and other unauthorized parties.

The Sangguniang Panlungsod ratified the MOU in Resolution No. 97.7 In the same resolution, the Sangguniandeclared that the
MOU was effective only for a period of six months starting July 25, 2002. 8 Thereafter, on January 30, 2003, the Sanggunian adopted
Resolution No. 139 extending the validity of Resolution No. 97 to April 30, 2003 and authorizing Mayor Atienza to issue special
business permits to the oil companies. Resolution No. 13, s. 2003 also called for a reassessment of the ordinance. 10

Meanwhile, petitioners filed this original action for mandamus on December 4, 2002 praying that Mayor Atienza be compelled to
enforce Ordinance No. 8027 and order the immediate removal of the terminals of the oil companies.11

The issues raised by petitioners are as follows:

1. whether respondent has the mandatory legal duty to enforce Ordinance No. 8027 and order the removal of the
Pandacan Terminals, and

2. whether the June 26, 2002 MOU and the resolutions ratifying it can amend or repeal Ordinance No. 8027. 12

Petitioners contend that respondent has the mandatory legal duty, under Section 455 (b) (2) of the Local Government Code (RA
7160),13 to enforce Ordinance No. 8027 and order the removal of the Pandacan Terminals of the oil companies. Instead, he has
allowed them to stay.

Respondent’s defense is that Ordinance No. 8027 has been superseded by the MOU and the resolutions.14However, he also
confusingly argues that the ordinance and MOU are not inconsistent with each other and that the latter has not amended the former.
He insists that the ordinance remains valid and in full force and effect and that the MOU did not in any way prevent him from
enforcing and implementing it. He maintains that the MOU should be considered as a mere guideline for its full implementation.15

Under Rule 65, Section 316 of the Rules of Court, a petition for mandamus may be filed when any tribunal, corporation, board, officer
or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or
station. Mandamus is an extraordinary writ that is employed to compel the performance, when refused, of a ministerial duty that is
already imposed on the respondent and there is no other plain, speedy and adequate remedy in the ordinary course of law. The
petitioner should have a well-defined, clear and certain legal right to the performance of the act and it must be the clear and
imperative duty of respondent to do the act required to be done. 17

Mandamus will not issue to enforce a right, or to compel compliance with a duty, which is questionable or over which a substantial
doubt exists. The principal function of the writ of mandamus is to command and to expedite, not to inquire and to adjudicate; thus, it
is neither the office nor the aim of the writ to secure a legal right but to implement that which is already established. Unless the right
to the relief sought is unclouded, mandamus will not issue.18

To support the assertion that petitioners have a clear legal right to the enforcement of the ordinance, petitioner SJS states that it is a
political party registered with the Commission on Elections and has its offices in Manila. It claims to have many members who are
residents of Manila. The other petitioners, Cabigao and Tumbokon, are allegedly residents of Manila.

We need not belabor this point. We have ruled in previous cases that when a mandamus proceeding concerns a public right and its
object is to compel a public duty, the people who are interested in the execution of the laws are regarded as the real parties in
interest and they need not show any specific interest.19 Besides, as residents of Manila, petitioners have a direct interest in the
enforcement of the city’s ordinances. Respondent never questioned the right of petitioners to institute this proceeding.

On the other hand, the Local Government Code imposes upon respondent the duty, as city mayor, to "enforce all laws and
ordinances relative to the governance of the city.">20 One of these is Ordinance No. 8027. As the chief executive of the city, he has
the duty to enforce Ordinance No. 8027 as long as it has not been repealed by the Sanggunian or annulled by the courts.21 He has no
other choice. It is his ministerial duty to do so. In Dimaporo v. Mitra, Jr.,22 we stated the reason for this:

These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for this is obvious. It might seriously hinder the transaction of public business if
these officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared unconstitutional. Officers of the
government from the highest to the lowest are creatures of the law and are bound to obey it.23

The question now is whether the MOU entered into by respondent with the oil companies and the subsequent resolutions passed by the Sanggunian have made the respondent’s duty to enforce Ordinance No.
8027 doubtful, unclear or uncertain. This is also connected to the second issue raised by petitioners, that is, whether the MOU and Resolution Nos. 97, s. 2002 and 13, s. 2003 of the Sanggunian can amend or
repeal Ordinance No. 8027.

We need not resolve this issue. Assuming that the terms of the MOU were inconsistent with Ordinance No. 8027, the resolutions which ratified it and made it binding on the City of Manila expressly gave it full
force and effect only until April 30, 2003. Thus, at present, there is nothing that legally hinders respondent from enforcing Ordinance No. 8027.24

Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world, witnessed the horror of the September 11, 2001 attack on the Twin Towers of the World Trade Center in New York
City. The objective of the ordinance is to protect the residents of Manila from the catastrophic devastation that will surely occur in case of a terrorist attack25 on the Pandacan Terminals. No reason exists why
such a protective measure should be delayed.

WHEREFORE, the petition is hereby GRANTED. Respondent Hon. Jose L. Atienza, Jr., as mayor of the City of Manila, is directed to immediately enforce Ordinance No. 8027.

SO ORDERED.

G.R. No. 205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA and THE BISHOP
HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V.
MAJARUCON, Respondents.

DECISION

LEONEN, J.:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates
from them." – Article II, Section 1, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the fundamental and preferred right to
expression of the electorate during political contests no matter how seemingly benign will be tolerated.

This case defines the extent that our people may shape the debates during elections. It is significant and of first impression. We are
asked to decide whether the Commission on Elections (COMELEC) has the competence to limit expressions made by the citizens
— who are not candidates — during elections.

Before us is a special civil action for certiorari and prohibition with application for preliminary injunction and temporary restraining
order1 under Rule 65 of the Rules of Court seeking to nullify COMELEC’s Notice to Remove Campaign Materials 2 dated February
22, 2013 and letter3 issued on February 27, 2013.
The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the San Sebastian Cathedral of
Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10') in size. They were posted on the front walls of the cathedral
within public view. The first tarpaulin contains the message "IBASURA RH Law" referring to the Reproductive Health Law of 2012 or
Republic Act No. 10354. The second tarpaulin is the subject of the present case. 4 This tarpaulin contains the heading "Conscience
Vote" and lists candidates as either "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The
electoral candidates were classified according to their vote on the adoption of Republic Act No. 10354, otherwise known as the RH
Law.6Those who voted for the passing of the law were classified by petitioners as comprising "Team Patay," while those who voted
against it form "Team Buhay":7

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo

Honasan, Gregorio Casiño, Teddy

Magsaysay, Mitos Cayetano, Alan Peter

Pimentel, Koko Enrile, Jackie

Trillanes, Antonio Escudero, Francis

Villar, Cynthia Hontiveros, Risa

Party List Buhay Legarda, Loren

Party List Ang Pamilya Party List Gabriela

Party List Akbayan

Party List Bayan Muna

Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for by any candidate. Petitioners
also conceded that the tarpaulin contains names ofcandidates for the 2013 elections, but not of politicians who helped in the
passage of the RH Law but were not candidates for that election.

On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of Bacolod City, issued a Notice to
Remove Campaign Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The election officer ordered the
tarpaulin’s removal within three (3) days from receipt for being oversized. COMELEC Resolution No. 9615 provides for the size
requirement of two feet (2’) by three feet (3’).9

On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop be given a definite ruling by
COMELEC Law Department regarding the tarpaulin; and (2) pending this opinion and the availment of legal remedies, the tarpaulin
be allowed to remain.11

On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate removal of the tarpaulin; otherwise, it
will be constrained to file an election offense against petitioners. The letter of COMELEC Law Department was silenton the
remedies available to petitioners. The letter provides as follows:

Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already given you notice on February 22,
2013 as regards the election propaganda material posted on the church vicinity promoting for or against the candidates and party-
list groups with the following names and messages, particularly described as follows:

Material size : six feet (6’) by ten feet (10’)

Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM

 BUHAY; (PRO RH) TEAM PATAY

Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY

The three (3) – day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec Resolution No. 9615 promulgated on January
15, 2013 particularly on the size (even with the subsequent division of the said tarpaulin into two), as the lawful size for election
propaganda material is only two feet (2’) by three feet (3’), please order/cause the immediate removal of said election propaganda
material, otherwise, we shall be constrained to file an election offense case against you.

We pray that the Catholic Church will be the first institution to help the Commission on Elections inensuring the conduct of peaceful,
orderly, honest and credible elections.

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners initiated this case through this
petition for certiorari and prohibition with application for preliminary injunction and temporary restraining order. 14 They question
respondents’ notice dated February 22, 2013 and letter issued on February 27, 2013. They pray that: (1) the petition be given due
course; (2) a temporary restraining order (TRO) and/or a writ of preliminary injunction be issued restraining respondents from further
proceeding in enforcing their orders for the removal of the Team Patay tarpaulin; and (3) after notice and hearing, a decision be
rendered declaring the questioned orders of respondents as unconstitutional and void, and permanently restraining respondents
from enforcing them or any other similar order.15

After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining respondents from enforcing the
assailed notice and letter, and set oral arguments on March 19, 2013. 16

On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and prohibition under Rule 65 of the
Rules of Court filed before this court is not the proper remedy to question the notice and letter of respondents; and (2) the tarpaulin
is an election propaganda subject to regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4 of the
Constitution. Hence, respondents claim that the issuances ordering its removal for being oversized are valid and constitutional. 18

During the hearing held on March 19, 2013, the parties were directed to file their respective memoranda within 10 days or by April 1,
2013, taking into consideration the intervening holidays.19

The issues, which also served as guide for the oral arguments, are:20

I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON AND THE 27 FEBRUARY 2013
ORDER BY THE COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS DOCTRINE AND

JURISPRUDENTIAL RULES GOVERNING APPEALS FROM COMELEC DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT CONSIDERED

JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER THERE ARE EXCEPTIONAL
CIRCUMSTANCES WHICH WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]

II.

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR

"ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;]

III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR ELECTION
PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF EXPRESSION, WHETHER THE
COMELEC POSSESSES THE AUTHORITY TO REGULATE THE SAME[;]

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON AND THE 27 FEBRUARY 2013
ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;]
[AND]

V.

WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE
OF SEPARATION OF CHURCH AND STATE.

I
PROCEDURAL ISSUES

I.A

This court’s jurisdiction over COMELEC cases

Respondents ask that this petition be dismissed on the ground that the notice and letter are not final orders, decisions, rulings, or
judgments of the COMELEC En Banc issued in the exercise of its adjudicatory powers, reviewable via Rule 64 of the Rules of
Court.21

Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially to raise objections relating to a
grave abuse of discretion resulting in the ouster of jurisdiction.22 As a special civil action, there must also be a showing that there be
no plain, speedy, and adequate remedy in the ordinary course of the law.

Respondents contend that the assailed notice and letter are not subject to review by this court, whose power to review is "limited
only to final decisions, rulings and orders of the COMELEC En Banc rendered in the exercise of its adjudicatory or quasi-judicial
power."23 Instead, respondents claim that the assailed notice and letter are reviewable only by COMELEC itself pursuant to Article
IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide all questions affecting elections. 25 Respondents invoke the
cases of Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v.
COMELEC,30 to illustrate how judicialintervention is limited to final decisions, orders, rulings and judgments of the COMELEC En
Banc.31

These cases are not applicable.

In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the election protest. 32 At issue was the
validity of the promulgation of a COMELEC Division resolution.33 No motion for reconsideration was filed to raise this issue before
the COMELEC En Banc. This court declared that it did not have jurisdiction and clarified:

We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings and decisionsof the COMELEC
rendered in the exercise of its adjudicatory or quasi-judicial powers." This decision must be a final decision or resolution of the
Comelec en banc, not of a division, certainly not an interlocutory order of a division.The Supreme Court has no power to review
viacertiorari, an interlocutory order or even a final resolution of a Division of the Commission on Elections. 35 (Emphasis in the
original, citations omitted)

However, in the next case cited by respondents, Repol v. COMELEC, this court provided exceptions to this general rule. Repolwas
another election protest case, involving the mayoralty elections in Pagsanghan, Samar.36 This time, the case was brought to this
court because the COMELEC First Division issued a status quo ante order against the Regional Trial Court executing its decision
pending appeal.37 This court’s ponencia discussed the general rule enunciated in Ambil, Jr. that it cannot take jurisdiction to review
interlocutory orders of a COMELEC Division.38However, consistent with ABS-CBN Broadcasting Corporation v. COMELEC,39 it
clarified the exception:
This Court, however, has ruled in the past that this procedural requirement [of filing a motion for reconsideration] may be glossed
over to prevent miscarriage of justice, when the issue involves the principle of social justice or the protection of labor, when the
decision or resolution sought to be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.40

Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral contests — despite not being
reviewed by the COMELEC En Banc, if:

1) It will prevent the miscarriage of justice;

2) The issue involves a principle of social justice;

3) The issue involves the protection of labor;

4) The decision or resolution sought tobe set aside is a nullity; or

5) The need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.

Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued by the COMELEC Division was
unconstitutional.

Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case involving candidates for the city
council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this court a petition for certiorari against an interlocutory order of
the COMELEC First

Division.42 While the petition was pending in this court, the COMELEC First Division dismissed the main election protest
case.43 Sorianoapplied the general rule that only final orders should be questioned with this court. The ponencia for this court,
however, acknowledged the exceptions to the general rule in ABS-CBN.44

Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of the mayoralty candidates of
Meycauayan, Bulacan.45 The COMELEC Second Division ruled that petitioner could not qualify for the 2007 elections due to the
findings in an administrative case that he engaged in vote buying in the 1995 elections. 46No motion for reconsideration was filed
before the COMELEC En Banc. This court, however, took cognizance of this case applying one of the exceptions in ABS-CBN: The
assailed resolution was a nullity.47

Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the mayoralty candidates of Taguig
City.48 Petitioner assailed a resolution of the COMELEC denying her motion for reconsideration to dismiss the election protest
petition for lack of form and substance.49 This court clarified the general rule and refused to take cognizance of the review of the
COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled that these exceptions did not apply. 50

Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as precedents to oust this court from
taking jurisdiction over this case. All these cases cited involve election protests or disqualification cases filed by the losing candidate
against the winning candidate.

In the present case, petitioners are not candidates seeking for public office. Their petition is filed to assert their fundamental right to
expression.

Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its adjudicatory or quasi-judicial power. This
case pertains to acts of COMELEC in the implementation of its regulatory powers. When it issued the notice and letter, the
COMELEC was allegedly enforcingelection laws.

I.B

Rule 65, grave abuse of discretion,

and limitations on political speech

The main subject of thiscase is an alleged constitutional violation: the infringement on speech and the "chilling effect" caused by
respondent COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the
notice51 dated February 22,2013 and letter52 dated February 27, 2013 ordering the removal of the tarpaulin. 53 It is their position that
these infringe on their fundamental right to freedom of expression and violate the principle of separation of church and state and,
thus, are unconstitutional.54

The jurisdiction of this court over the subject matter is determined from the allegations in the petition. Subject matter jurisdiction is
defined as the authority "to hear and determine cases of the general class to which the proceedings in question belong and is
conferred by the sovereign authority which organizes the court and defines its powers." 55Definitely, the subject matter in this case is
different from the cases cited by respondents.

Nothing less than the electorate’s political speech will be affected by the restrictions imposed by COMELEC. Political speech is
motivated by the desire to be heard and understood, to move people to action. It is concerned with the sovereign right to change the
contours of power whether through the election of representatives in a republican government or the revision of the basic text of the
Constitution. The zeal with which we protect this kind of speech does not depend on our evaluation of the cogency of the message.
Neither do we assess whether we should protect speech based on the motives of COMELEC. We evaluate restrictions on freedom
of expression from their effects. We protect both speech and medium because the quality of this freedom in practice will define the
quality of deliberation in our democratic society.

COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of repetition. Under the conditions in which it
was issued and in view of the novelty of this case,it could result in a "chilling effect" that would affect other citizens who want their
voices heard on issues during the elections. Other citizens who wish to express their views regarding the election and other related
issues may choose not to, for fear of reprisal or sanction by the COMELEC. Direct resort to this court is allowed to avoid such
proscribed conditions. Rule 65 is also the procedural platform for raising grave abuse of discretion.

Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this court’s expanded exercise of certiorari
as provided by the Constitution as follows:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable
and enforceable, and to determine whether ornot 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.56(Emphasis supplied)

On the other hand, respondents relied on its constitutional mandate to decide all questions affectingelections. Article IX-C, Section
2(3) of the Constitution, provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and
location of polling places, appointment of election officials and inspectors, and registration of voters.

Respondents’ reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise of jurisdiction, gravely abused it. We are
confronted with the question as to whether the COMELEC had any jurisdiction at all with its acts threatening imminent criminal
action effectively abridging meaningful political speech.

It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter on free speech. This does not fall
under Article IX-C, Section 2(3) of the Constitution. The use of the word "affecting" in this provision cannot be interpreted to mean
that COMELEC has the exclusive power to decide any and allquestions that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this court of its own jurisdiction.

The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the Constitution.This provision provides for this
court’s original jurisdiction over petitions for certiorari and prohibition. This should be read alongside the expanded jurisdiction of the
court in Article VIII, Section 1 of the Constitution.

Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of discretion. Thus, the constitutionality of
the notice and letter coming from COMELEC is within this court’s power to review.

During elections, we have the power and the duty to correct any grave abuse of discretion or any act tainted with unconstitutionality
on the part of any government branch or instrumentality. This includes actions by the COMELEC. Furthermore, it is this court’s
constitutional mandate to protect the people against government’s infringement of their fundamental rights. This constitutional
mandate out weighs the jurisdiction vested with the COMELEC.

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.

I.C

Hierarchy of courts

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in directly filing their petition before this
court.

Respondents contend that petitioners’ failure to file the proper suit with a lower court of concurrent jurisdiction is sufficient ground for
the dismissal of their petition.57 They add that observation of the hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v.
Melicor.58 While respondents claim that while there are exceptions to the general rule on hierarchy of courts, none of these are
present in this case.59

On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take cognizance of a petition filed
directly to it if warranted by "compelling reasons, or [by] the nature and importance of the issues raised. . . ." 61 Petitioners submit that
there are "exceptional and compelling reasons to justify a direct resort [with] this Court." 62

In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of courts:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is not to be ignored
without serious consequences. The strictness of the policy is designed to shield the Court from having to deal with causes that are
also well within the competence of the lower courts, and thus leave time to the Court to deal with the more fundamental and more
essential tasks that the Constitution has assigned to it. The Court may act on petitions for the extraordinary writs of certiorari,
prohibition and mandamus only when absolutely necessary or when serious and important reasons exist to justify an exception to
the policy.64

In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of certiorari, prohibition, and mandamus,
citing Vergara v. Suelto:65

The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the functions assigned to it by the
fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of dealing with causes in the first
instance. Its original jurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely necessary or
where serious and important reasons exist therefore. Hence, that jurisdiction should generally be exercised relative to actions or
proceedings before the Court of Appeals, or before constitutional or other tribunals, bodies or agencies whose acts for some reason
or another are not controllable by the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of
the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action for the writ’s procurement must
be presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers must strictly
observe.66 (Emphasis omitted)

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that every level of the judiciary
performs its designated roles in an effective and efficient manner. Trial courts do not only determine the facts from the evaluation of
the evidence presented before them. They are likewise competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the Constitution. 67 To effectively perform these functions, they are
territorially organized into regions and then into branches. Their writs generally reach within those territorial boundaries. Necessarily,
they mostly perform the all-important task of inferring the facts from the evidence as these are physically presented before them. In
many instances, the facts occur within their territorial jurisdiction, which properly present the ‘actual case’ that makes ripe a
determination of the constitutionality of such action. The consequences, of course, would be national in scope. There are, however,
some cases where resort to courts at their level would not be practical considering their decisions could still be appealed before the
higher courts, such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination of facts and law made by the trial
courts. It is collegiate in nature. This nature ensures more standpoints in the review of the actions of the trial court. But the Court of
Appeals also has original jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a nationwide scope. It
is competent to determine facts and, ideally, should act on constitutional issues thatmay not necessarily be novel unless there are
factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating — in the light of new circumstances
or in the light of some confusions of bench or bar — existing precedents. Rather than a court of first instance or as a repetition of the
actions of the Court of Appeals, this court promulgates these doctrinal devices in order that it truly performs that role.
In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect constitutional rights when these
become exigent should not be emasculated by the doctrine in respect of the hierarchy of courts. That has never been the purpose of
such doctrine.

Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary power to take cognizance and
assume jurisdiction [over] special civil actions for certiorari . . .filed directly with it for exceptionally compelling reasons69 or if
warranted by the nature of the issues clearly and specifically raised in the petition." 70 As correctly pointed out by petitioners,71 we
have provided exceptions to this doctrine:

First, a direct resort to this court is allowed when there are genuine issues of constitutionality that must be addressed at the most
immediate time. A direct resort to this court includes availing of the remedies of certiorari and prohibition toassail the constitutionality
of actions of both legislative and executive branches of the government. 72

In this case, the assailed issuances of respondents prejudice not only petitioners’ right to freedom of expression in the present case,
but also of others in future similar cases. The case before this court involves an active effort on the part of the electorate to reform
the political landscape. This has become a rare occasion when private citizens actively engage the public in political discourse. To
quote an eminent political theorist:

[T]he theory of freedom of expression involves more than a technique for arriving at better social judgments through democratic
procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an age that was awakened
and invigorated by the idea of new society in which man's mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a
creative, progressive, exciting and intellectually robust community. It contemplates a mode of life that, through encouraging
toleration, skepticism, reason and initiative, will allow man to realize his full potentialities.It spurns the alternative of a society that is
tyrannical, conformist, irrational and stagnant.73

In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of political decision-making is
recognized. It deserves the highest protection the courts may provide, as public participation in nation-building isa fundamental
principle in our Constitution. As such, their right to engage in free expression of ideas must be given immediate protection by this
court.

A second exception is when the issuesinvolved are of transcendental importance. 74 In these cases, the imminence and clarity of the
threat to fundamental constitutional rights outweigh the necessity for prudence. The doctrine relating to constitutional issues of
transcendental importance prevents courts from the paralysis of procedural niceties when clearly faced with the need for substantial
protection.

In the case before this court, there is a clear threat to the paramount right of freedom of speech and freedom of expression which
warrants invocation of relief from this court. The principles laid down in this decision will likely influence the discourse of freedom of
speech in the future, especially in the context of elections. The right to suffrage not only includes the right to vote for one’s chosen
candidate, but also the right to vocalize that choice to the public in general, in the hope of influencing their votes. It may be said that
in an election year, the right to vote necessarily includes the right to free speech and expression. The protection of these
fundamental constitutional rights, therefore, allows for the immediate resort to this court.

Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression, no jurisprudence yet exists that will
guide the lower courts on this matter. In Government of the United States v. Purganan, 76 this court took cognizance of the case as a
matter of first impression that may guide the lower courts:

In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we deem it best to take
cognizance of the present case. Such proceedings constitute a matter of first impression over which there is, as yet, no local
jurisprudence to guide lower courts.77

This court finds that this is indeed a case of first impression involving as it does the issue of whether the right of suffrage includes
the right of freedom of expression. This is a question which this court has yet to provide substantial answers to, through
jurisprudence. Thus, direct resort to this court is allowed.

Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim, 78 this court held that:

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgmentof this Court in the
consideration of its validity, which is better determined after a thorough deliberation by a collegiate body and with the concurrence of
the majority of those who participated in its discussion.79 (Citation omitted)

In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality on whether COMELEC
committed grave abuse of discretion or performed acts contrary to the Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013 election period. Although the
elections have already been concluded, future cases may be filed that necessitate urgency in its resolution. Exigency in certain
situations would qualify as an exception for direct resort to this court.

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body. In Albano v. Arranz, 80 cited by
petitioners, this court held that "[i]t is easy to realize the chaos that would ensue if the Court of First Instance ofeach and every
province were [to] arrogate itself the power to disregard, suspend, or contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to impotence."81

In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with the lower courts, any ruling on
their part would not have been binding for other citizens whom respondents may place in the same situation. Besides, thiscourt
affords great respect to the Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling by this court would
be in the best interest of respondents, in order that their actions may be guided accordingly in the future.

Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the ordinary course of law that could
free them from the injurious effects of respondents’ acts in violation of their right to freedom of expression.

In this case, the repercussions of the assailed issuances on this basic right constitute an exceptionally compelling reason to justify
the direct resort to this court. The lack of other sufficient remedies in the course of law alone is sufficient ground to allow direct resort
to this court.

Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement of public policy, or demanded by the
broader interest of justice, or the orders complained of were found to be patent nullities, or the appeal was consideredas clearly an
inappropriate remedy."82 In the past, questions similar to these which this court ruled on immediately despite the doctrine of
hierarchy of courts included citizens’ right to bear arms,83 government contracts involving modernization of voters’ registration
lists,84 and the status and existence of a public office.85

This case also poses a question of similar, if not greater import. Hence, a direct action to this court is permitted.

It is not, however, necessary that all of these exceptions must occur at the same time to justify a direct resort to this court. While
generally, the hierarchy of courts is respected, the present case falls under the recognized exceptions and, as such, may be
resolved by this court directly.

I.D

The concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political question, hence not within the ambit of this
court’s power of review. They cite Justice Vitug’s separate opinion in Osmeña v. COMELEC86 to support their position:

It might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State shall guarantee equal access to
opportunities for public service, and prohibit political dynasties as may be defined by law." I see neither Article IX (C)(4) nor Section
26, Article II, of the Constitution to be all that adversarial or irreconcilably inconsistent with the right of free expression. In any event,
the latter, being one of general application, must yield to the specific demands of the Constitution. The freedom of expression
concededly holds, it is true, a vantage point in hierarchy of constitutionally-enshrined rights but, like all fundamental rights, it is not
without limitations.

The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the "weak" in our society but it is to me
a genuine attempt on the part of Congress and the Commission on Elections to ensure that all candidates are given an equal
chance to media coverage and thereby be equally perceived as giving real life to the candidates’ right of free expression rather than
being viewed as an undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that which the legislature deems
to be best in giving life to the Constitutional mandate, is not for the Court to question; it is a matter that lies beyond the normal
prerogatives of the Court to pass upon.87

This separate opinion is cogent for the purpose it was said. But it is not in point in this case.

The present petition does not involve a dispute between the rich and poor, or the powerful and weak, on their equal opportunities for
media coverage of candidates and their right to freedom of expression. This case concerns the right of petitioners, who are non-
candidates, to post the tarpaulin in their private property, asan exercise of their right of free expression. Despite the invocation of the
political question doctrine by respondents, this court is not proscribed from deciding on the merits of this case.

In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a political question:
What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by
the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer
of the government, withdiscretionary power to act.89 (Emphasis omitted)

It is not for this court to rehearse and re-enact political debates on what the text of the law should be. In political forums, particularly
the legislature, the creation of the textof the law is based on a general discussion of factual circumstances, broadly construed in
order to allow for general application by the executive branch. Thus, the creation of the law is not limited by particular and specific
facts that affect the rights of certain individuals, per se.

Courts, on the other hand, rule on adversarial positions based on existing facts established on a specific case-to-case basis, where
parties affected by the legal provision seek the courts’ understanding of the law.

The complementary nature of the political and judicial branches of government is essential in order to ensure that the rights of the
general public are upheld at all times. In order to preserve this balance, branches of government must afford due respectand
deference for the duties and functions constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule.
Prudence dictates that we are careful not to veto political acts unless we can craft doctrine narrowly tailored to the circumstances of
the case.

The case before this court does not call for the exercise of prudence or modesty. There is no political question. It can be acted upon
by this court through the expanded jurisdiction granted to this court through Article VIII, Section 1 of the Constitution.

A political question arises in constitutional issues relating to the powers or competence of different agencies and departments of the
executive or those of the legislature. The political question doctrine is used as a defense when the petition asks this court to nullify
certain acts that are exclusively within the domain of their respective competencies, as provided by the Constitution or the law. In
such situation, presumptively, this court should act with deference. It will decline to void an act unless the exercise of that power was
so capricious and arbitrary so as to amount to grave abuse of discretion.

The concept of a political question, however, never precludes judicial review when the act of a constitutional organ infringes upon a
fundamental individual or collective right. Even assuming arguendo that the COMELEC did have the discretion to choose the
manner of regulation of the tarpaulin in question, it cannot do so by abridging the fundamental right to expression.

Marcos v. Manglapus90 limited the use of the political question doctrine:

When political questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave abuse is
not established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or
by law is for the latter alone to decide.91

How this court has chosen to address the political question doctrine has undergone an evolution since the timethat it had been first
invoked in Marcos v. Manglapus. Increasingly, this court has taken the historical and social context of the case and the relevance of
pronouncements of carefully and narrowly tailored constitutional doctrines. This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93

Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987 Constitution involving the removal
of petitioners from the Commission on Appointments. In times past, this would have involved a quint essentially political question as
it related to the dominance of political parties in Congress. However, in these cases, this court exercised its power of judicial review
noting that the requirement of interpreting the constitutional provision involved the legality and not the wisdom of a manner by which
a constitutional duty or power was exercised. This approach was again reiterated in Defensor Santiago v. Guingona, Jr.94

In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible existence ofa political question did not
bar an examination of whether the exercise of discretion was done with grave abuse of discretion. In that case, this court ruled on
the question of whether there was grave abuse of discretion in the President’s use of his power to call out the armed forces to
prevent and suppress lawless violence.

In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President resigned was not a political
question even if the consequences would be to ascertain the political legitimacy of a successor President.

Many constitutional cases arise from political crises. The actors in such crises may use the resolution of constitutional issues as
leverage. But the expanded jurisdiction of this court now mandates a duty for it to exercise its power of judicial review expanding on
principles that may avert catastrophe or resolve social conflict.

This court’s understanding of the political question has not been static or unbending. In Llamas v. Executive Secretary Oscar
Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the President's discretionary powers are exercised or into the
wisdom for its exercise, it is also a settled rule that when the issue involved concerns the validity of such discretionary powers or
whether said powers are within the limits prescribed by the Constitution, We will not decline to exercise our power of judicial review.
And such review does not constitute a modification or correction of the act of the President, nor does it constitute interference with
the functions of the President.98

The concept of judicial power in relation to the concept of the political question was discussed most extensively in Francisco v.
HRET.99 In this case, the House of Representatives arguedthat the question of the validity of the second impeachment complaint
that was filed against former Chief Justice Hilario Davide was a political question beyond the ambit of this court. Former Chief
Justice Reynato Puno elaborated on this concept in his concurring and dissenting opinion:

To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new Constitution which expanded
the definition of judicial power as including "the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government." As well observed by retired Justice Isagani
Cruz, this expanded definition of judicial power considerably constricted the scope of political question. He opined that the language
luminously suggests that this duty (and power) is available even against the executive and legislative departments including the
President and the Congress, in the exercise of their discretionary powers. 100 (Emphasis in the original, citations omitted)

Francisco also provides the cases which show the evolution of the political question, as applied in the following cases:

In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The present Constitution limits resort to
the political question doctrine and broadens the scope of judicial inquiry into areas which the Court,under previous constitutions,
would have normally left to the political departments to decide. x x x

In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a
recent case, "(t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases." (Emphasis
and italics supplied)

And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were
to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the
expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question.x x x (Emphasis and italics
supplied.)

....

In our jurisdiction, the determination of whether an issue involves a truly political and non-justiciable question lies in the answer to
the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are,
then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such
limits.101 (Citations omitted)

As stated in Francisco, a political question will not be considered justiciable if there are no constitutionally imposed limits on powers
or functions conferred upon political bodies. Hence, the existence of constitutionally imposed limits justifies subjecting the official
actions of the body to the scrutiny and review of this court.

In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance that this right may be abridged
demands judicial scrutiny. It does not fall squarely into any doubt that a political question brings.

I.E

Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of exhaustion of administrative remedies. Respondents insist that
petitioners should have first brought the matter to the COMELEC En Banc or any of its divisions. 102
Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law."103 They add that the proper venue to assail the validity of the assailed
issuances was in the course of an administrative hearing to be conducted by COMELEC. 104 In the event that an election offense is
filed against petitioners for posting the tarpaulin, they claim that petitioners should resort to the remedies prescribed in Rule 34 of
the COMELEC Rules of Procedure.105

The argument on exhaustion of administrative remedies is not proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is already ripe for adjudication.
Ripeness is the "prerequisite that something had by then been accomplished or performed by either branch [or in this case, organ of
government] before a court may come into the picture."106

Petitioners’ exercise of their rightto speech, given the message and their medium, had understandable relevance especially during
the elections. COMELEC’s letter threatening the filing of the election offense against petitioners is already an actionable
infringement of this right. The impending threat of criminal litigation is enough to curtail petitioners’ speech.

In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in their pleadings prolongs the
violation of their freedom of speech.

Political speech enjoys preferred protection within our constitutional order. In Chavez v. Gonzales, 107 Justice Carpio in a separate
opinion emphasized: "[i]f everthere is a hierarchy of protected expressions, political expression would occupy the highest rank, and
among different kinds of political expression, the subject of fair and honest elections would be at the top."108 Sovereignty resides in
the people.109 Political speech is a direct exercise of the sovereignty. The principle of exhaustion of administrative remedies yields in
order to protect this fundamental right.

Even assuming that the principle of exhaustion of administrative remedies is applicable, the current controversy is within the
exceptions to the principle. In Chua v. Ang,110 this court held:

On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial action may be validly resorted to
immediately: (a) when there is a violation of due process; (b) when the issue involved is purely a legal question; (c) when the
administrative action is patently illegal amounting to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent is a department secretary whose acts
as analter ego of the President bear the implied and assumed approval of the latter; (g) when to require exhaustion of administrative
remedies would be unreasonable; (h) when it would amount to a nullification of a claim; (i) when the subject matter is a private land
in land case proceedings; (j) whenthe rule does not provide a plain, speedy and adequate remedy; or (k) when there are
circumstances indicating the urgency of judicial intervention."111 (Emphasis supplied, citation omitted)

The circumstances emphasized are squarely applicable with the present case. First, petitioners allegethat the assailed issuances
violated their right to freedom of expression and the principle of separation of church and state. This is a purely legal question.
Second, the circumstances of the present case indicate the urgency of judicial intervention considering the issue then on the RH
Law as well as the upcoming elections. Thus, to require the exhaustion of administrative remedies in this case would be
unreasonable.

Time and again, we have held that this court "has the power to relax or suspend the rules or to except a case from their operation
when compelling reasons so warrant, or whenthe purpose of justice requires it, [and when] [w]hat constitutes [as] good and
sufficient cause that will merit suspension of the rules is discretionary upon the court". 112Certainly, this case of first impression where
COMELEC has threatenedto prosecute private parties who seek to participate in the elections by calling attention to issues they
want debated by the publicin the manner they feel would be effective is one of those cases.

II
SUBSTANTIVE ISSUES

II.A

COMELEC had no legal basis to regulate expressions made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the power to regulate the
tarpaulin.113 However, all of these provisions pertain to candidates and political parties. Petitioners are not candidates. Neither do
theybelong to any political party. COMELEC does not have the authority to regulate the enjoyment of the preferred right to freedom
of expression exercised by a non-candidate in this case.

II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:

Section 4. The Commission may,during the election period, supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation and other public utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. 114 (Emphasis
supplied)

Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for the creation of the Cordillera
Autonomous Region.116 Columnist Pablito V. Sanidad questioned the provision prohibiting journalists from covering plebiscite issues
on the day before and on plebiscite day.117 Sanidad argued that the prohibition was a violation of the "constitutional guarantees of
the freedom of expression and of the press. . . ."118 We held that the "evil sought to be prevented by this provision is the possibility
that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television
time."119 This court found that "[m]edia practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates[,]"120 thus, their right to expression during this period may not be regulated by COMELEC.121

Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates. II.A.2

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates.
(Emphasis supplied) Based on the enumeration made on actsthat may be penalized, it will be inferred that this provision only affects
candidates.

Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was followed bythe assailed letter
regarding the "election propaganda material posted on the church vicinity promoting for or against the candidates and party-list
groups. . . ."123

Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties" and "candidates":

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list groups to erect common
poster areas for their candidates in not more than ten (10) public places such as plazas, markets, barangay centers and the like,
wherein candidates can post, display or exhibit election propaganda: Provided, That the size ofthe poster areas shall not exceed
twelve (12) by sixteen (16) feet or its equivalent. Independent candidates with no political parties may likewise be authorized to erect
common poster areas in not more than ten (10) public places, the size of which shall not exceed four (4) by six (6) feet or its
equivalent. Candidates may post any lawful propaganda material in private places with the consent of the owner thereof, and in
public places or property which shall be allocated equitably and impartially among the candidates. (Emphasis supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the Fair Election Act, provides as
follows:

SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful campaign material in:

a. Authorized common poster areasin public places subject to the requirements and/or limitations set forth in the next
following section; and

b. Private places provided it has the consent of the owner thereof.

The posting of campaign materials in public places outside of the designated common poster areas and those enumerated under
Section 7 (g) of these Rules and the like is prohibited. Persons posting the same shall be liable together with the candidates and
other persons who caused the posting. It will be presumed that the candidates and parties caused the posting of campaign materials
outside the common poster areas if they do not remove the same within three (3) days from notice which shall be issued by the
Election Officer of the city or municipality where the unlawful election propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called upon by the Election Officeror other officials of the COMELEC
shall apprehend the violators caught in the act, and file the appropriate charges against them. (Emphasis supplied)

Respondents considered the tarpaulin as a campaign material in their issuances. The above provisions regulating the posting of
campaign materials only apply to candidates and political parties, and petitioners are neither of the two.

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are "allowed for all registered political
parties, national, regional, sectoral parties or organizations participating under the party-list elections and for all bona fide
candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political
parties. . . ." Section 6 of COMELEC Resolution No. 9615 provides for a similar wording. These provisions show that election
propaganda refers to matter done by or on behalf of and in coordination with candidates and political parties. Some level of
coordination with the candidates and political parties for whom the election propaganda are released would ensure that these
candidates and political parties maintain within the authorized expenses limitation.

The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that petitioners coordinated with any of
the persons named in the tarpaulin regarding its posting. On the other hand, petitioners posted the tarpaulin as part of their
advocacy against the RH Law. Respondents also cite National Press Club v. COMELEC126 in arguing that its regulatory power
under the Constitution, to some extent, set a limit on the right to free speech during election period. 127

National Press Club involved the prohibition on the sale and donation of space and time for political advertisements, limiting political
advertisements to COMELEC-designated space and time. This case was brought by representatives of mass media and two
candidates for office in the 1992 elections. They argued that the prohibition on the sale and donation of space and time for political
advertisements is tantamount to censorship, which necessarily infringes on the freedom of speech of the candidates. 128

This court upheld the constitutionality of the COMELEC prohibition in National Press Club. However, this case does not apply as
most of the petitioners were electoral candidates, unlike petitioners in the instant case. Moreover, the subject matter of National
Press Club, Section 11(b) of Republic Act No. 6646,129 only refers to a particular kind of media such as newspapers, radio
broadcasting, or television.130 Justice Feliciano emphasized that the provision did not infringe upon the right of reporters or
broadcasters to air their commentaries and opinions regarding the candidates, their qualifications, and program for government.
Compared to Sanidadwherein the columnists lost their ability to give their commentary on the issues involving the plebiscite,
National Press Clubdoes not involve the same infringement.

In the case at bar, petitioners lost their ability to give a commentary on the candidates for the 2013 national elections because of the
COMELEC notice and letter. It was not merelya regulation on the campaigns of candidates vying for public office. Thus, National
Press Clubdoes not apply to this case.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, defines an"election campaign" as
follows:

....

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a
particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate
for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate;
or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a
public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan
election activity. Public expressions or opinions or discussions of probable issues in a forthcoming electionor on attributes of or
criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed
as part of any election campaign or partisan political activity contemplated under this Article. (Emphasis supplied)

True, there is no mention whether election campaign is limited only to the candidates and political parties themselves. The focus of
the definition is that the act must be "designed to promote the election or defeat of a particular candidate or candidates to a public
office."

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of either appreciation or criticism on
votes made in the passing of the RH law. Thus, petitioners invoke their right to freedom of expression.

II.B

The violation of the constitutional right

to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their fundamental right to freedom of
expression.

On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their regulation pursuant to their
mandate under Article IX-C, Section 4 of the Constitution. Thus, the assailed notice and letter ordering itsremoval for being
oversized are valid and constitutional.131

II.B.1

Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of grievances. 132

No law. . .

While it is true that the present petition assails not a law but an opinion by the COMELEC Law Department, this court has applied
Article III, Section 4 of the Constitution even to governmental acts.

In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised Ordinances of 1927 of Manila for the
public meeting and assembly organized by petitioner Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets and
public places for purposes such as athletic games, sports, or celebration of national holidays.135 What was questioned was not a law
but the Mayor’s refusal to issue a permit for the holding of petitioner’s public meeting.136 Nevertheless, this court recognized the
constitutional right to freedom of speech, to peaceful assembly and to petition for redress of grievances, albeit not absolute,137 and
the petition for mandamus to compel respondent Mayor to issue the permit was granted. 138

In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution No. 98-1419 where the COMELEC
resolved to approve the issuance of a restraining order to stop ABS-CBN from conducting exit surveys.139 The right to freedom of
expression was similarly upheld in this case and, consequently, the assailed resolution was nullified and set aside.140

. . . shall be passed abridging. . .

All regulations will have an impact directly or indirectly on expression. The prohibition against the abridgment of speech should not
mean an absolute prohibition against regulation. The primary and incidental burden on speech must be weighed against a
compelling state interest clearly allowed in the Constitution. The test depends on the relevant theory of speech implicit in the kind of
society framed by our Constitution.

. . . of expression. . .

Our Constitution has also explicitly included the freedom of expression, separate and in addition to the freedom of speech and of the
press provided in the US Constitution. The word "expression" was added in the 1987 Constitution by Commissioner Brocka for
having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line 29, it says: "No law shall be
passed abridging the freedom of speech." I would like to recommend to the Committee the change of the word "speech" to
EXPRESSION; or if not, add the words AND EXPRESSION after the word "speech," because it is more expansive, it has a wider
scope, and it would refer to means of expression other than speech.

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

FR. BERNAS: "Expression" is more broad than speech. We accept it.

MR. BROCKA: Thank you.

THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?

FR. BERNAS: Yes.

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

FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of speech, expression or of the press
. . . ."141 Speech may be said to be inextricably linked to freedom itself as "[t]he right to think is the beginning of freedom, and speech
must be protected from the government because speech is the beginning of thought."142

II.B.2

Communication is an essential outcome of protected speech. 143 Communication exists when "(1) a speaker, seeking to signal
others, uses conventional actions because he orshe reasonably believes that such actions will be taken by the audience in the
manner intended; and (2) the audience so takes the actions."144 "[I]n communicative action[,] the hearer may respond to the claims
by . . . either accepting the speech act’s claims or opposing them with criticism or requests for justification." 145

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes referred to as ‘symbolic
speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct,’ the ‘communicative
element’ of the conduct may be ‘sufficient to bring into play the [right to freedom of expression].’" 147

The right to freedom of expression, thus, applies to the entire continuum of speech from utterances made to conduct enacted, and
even to inaction itself as a symbolic manner of communication.

In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members of the religious sect Jehovah’s
Witnesses were to be expelled from school for refusing to salute the flag, sing the national anthem, and recite the patriotic
pledge.149 In his concurring opinion, Justice Cruz discussed how the salute is a symbolic manner of communication and a valid form
of expression.150 He adds that freedom of speech includes even the right to be silent:

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that guarantees to the individual the
liberty to utter what is in his mind also guarantees to him the liberty not to utter what is not in his mind. The salute is a symbolic
manner of communication that conveys its messageas clearly as the written or spoken word. As a valid form of expression, it cannot
be compelled any more than it can be prohibited in the face of valid religious objections like those raised in this petition. To impose it
on the petitioners is to deny them the right not to speak when their religion bids them to be silent. This coercion of conscience has
no place in the free society.

The democratic system provides for the accommodation of diverse ideas, including the unconventional and even the bizarre or
eccentric. The will of the majority prevails, but it cannot regiment thought by prescribing the recitation by rote of its opinions or
proscribing the assertion of unorthodox or unpopular views as inthis case. The conscientious objections of the petitioners, no less
than the impatience of those who disagree with them, are protected by the Constitution. The State cannot make the individual speak
when the soul within rebels.151

Even before freedom "of expression" was included in Article III, Section 4 of the present Constitution,this court has applied its
precedent version to expressions other than verbal utterances.

In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification of the motion picture "Kapit sa
Patalim" as "For Adults Only." They contend that the classification "is without legal and factual basis and is exercised as
impermissible restraint of artistic expression."153 This court recognized that "[m]otion pictures are important both as a medium for the
communication of ideas and the expression of the artistic impulse." 154 It adds that "every writer,actor, or producer, no matter what
medium of expression he may use, should be freed from the censor."155 This court found that "[the Board’s] perception of what
constitutes obscenity appears to be unduly restrictive." 156 However, the petition was dismissed solely on the ground that there were
not enough votes for a ruling of grave abuse of discretion in the classification made by the Board.157

II.B.3

Size does matter

The form of expression is just as important as the information conveyed that it forms part of the expression. The present case is in
point.

It is easy to discern why size matters.

First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it easier to view its messages from
greater distances. Furthermore, a larger tarpaulin makes it easier for passengers inside moving vehicles to read its content.
Compared with the pedestrians, the passengers inside moving vehicles have lesser time to view the content of a tarpaulin. The
larger the fonts and images, the greater the probability that it will catch their attention and, thus, the greater the possibility that they
will understand its message.

Second, the size of the tarpaulin may underscore the importance of the message to the reader. From an ordinary person’s
perspective, those who post their messages in larger fonts care more about their message than those who carry their messages in
smaller media. The perceived importance given by the speakers, in this case petitioners, to their cause is also part of the message.
The effectivity of communication sometimes relies on the emphasis put by the speakers and onthe credibility of the speakers
themselves. Certainly, larger segments of the public may tend to be more convinced of the point made by authoritative figures when
they make the effort to emphasize their messages.

Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more opportunities to amplify, explain, and
argue points which the speakers might want to communicate. Rather than simply placing the names and images of political
candidates and an expression of support, larger spaces can allow for brief but memorable presentations of the candidates’ platforms
for governance. Larger spaces allow for more precise inceptions of ideas, catalyze reactions to advocacies, and contribute more to
a more educated and reasoned electorate. A more educated electorate will increase the possibilities of both good governance and
accountability in our government.

These points become more salient when it is the electorate, not the candidates or the political parties, that speaks. Too often, the
terms of public discussion during elections are framed and kept hostage by brief and catchy but meaningless sound bites extolling
the character of the candidate. Worse, elections sideline political arguments and privilege the endorsement by celebrities. Rather
than provide obstacles to their speech, government should in fact encourage it. Between the candidates and the electorate, the
latter have the better incentive to demand discussion of the more important issues. Between the candidates and the electorate, the
former have better incentives to avoid difficult political standpoints and instead focus on appearances and empty promises.

Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part of expression protected under
Article III, Section 4 of the Constitution.

II.B.4

There are several theories and schools of thought that strengthen the need to protect the basic right to freedom of expression.

First, this relates to the right ofthe people to participate in public affairs, including the right to criticize government actions.

Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and] ethical dialogue isa critical, and
indeed defining, feature of a good polity."159 This theory may be considered broad, but it definitely "includes [a] collective decision
making with the participation of all who will beaffected by the decision." 160 It anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people.161 To ensure order in running the state’s affairs, sovereign powers were
delegated and individuals would be elected or nominated in key government positions to represent the people. On this note, the
theory on deliberative democracy may evolve to the right of the people to make government accountable. Necessarily, this includes
the right of the people to criticize acts made pursuant to governmental functions.

Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent, should thus be protected and
encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and imagination; that fear breeds repression;
that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely
supposed grievances and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good government demand a full discussion of
public affairs."163 This court has, thus, adopted the principle that "debate on public issues should be uninhibited, robust,and wide
open . . . [including even] unpleasantly sharp attacks on government and public officials." 164

Second, free speech should be encouraged under the concept of a market place of ideas. This theory was articulated by Justice
Holmes in that "the ultimate good desired is better reached by [the] free trade in ideas:" 165

When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very
foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is
the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out.166

The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their own conclusions." 167 A free,
open, and dynamic market place of ideas is constantly shaping new ones. This promotes both stability and change where recurring
points may crystallize and weak ones may develop. Of course, free speech is more than the right to approve existing political beliefs
and economic arrangements as it includes, "[t]o paraphrase Justice Holmes, [the] freedom for the thought that we hate, no less than
for the thought that agrees with us."168 In fact, free speech may "best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people to anger." 169 It is in this context that we should guard against
any curtailment of the people’s right to participate in the free trade of ideas.

Third, free speech involves self-expression that enhances human dignity. This right is "a means of assuring individual self-
fulfillment,"170 among others. In Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc, 171 this court
discussed as follows:

The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to man's
enjoyment of his life, to his happiness and to his full and complete fulfillment.Thru these freedoms the citizens can participate not
merely in the periodic establishment of the government through their suffrage but also in the administration of public affairs as well
as in the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to the appropriate
governmental officers or agencies for redress and protection as well as for the imposition of the lawful sanctions on erring public
officers and employees.172 (Emphasis supplied)

Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an] important democratic role [in
providing] forums for the development of civil skills, for deliberation, and for the formation of identity and community spirit[,] [and] are
largely immune from [any] governmental interference."173 They also "provide a buffer between individuals and the state - a free
space for the development of individual personality, distinct group identity, and dissident ideas - and a potential source of opposition
to the state."174 Free speech must be protected as the vehicle to find those who have similar and shared values and ideals, to join
together and forward common goals.

Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities against majoritarian abuses
perpetrated through [the] framework [of democratic governance]."175 Federalist framers led by James Madison were concerned
about two potentially vulnerable groups: "the citizenry at large - majorities - who might be tyrannized or plundered by despotic
federal officials"176 and the minorities who may be oppressed by "dominant factions of the electorate [that] capture [the] government
for their own selfish ends[.]"177 According to Madison, "[i]t is of great importance in a republic not only to guard the society against
the oppression of its rulers, but to guard one part of the society against the injustice of the other part."178 We should strive to ensure
that free speech is protected especially in light of any potential oppression against those who find themselves in the fringes on
public issues.

Lastly, free speech must be protected under the safety valve theory. 179 This provides that "nonviolent manifestations of dissent
reduce the likelihood of violence[.]"180 "[A] dam about to burst . . . resulting in the ‘banking up of a menacing flood of sullen anger
behind the walls of restriction’"181 has been used to describe the effect of repressing nonviolent outlets.182 In order to avoid this
situation and prevent people from resorting to violence, there is a need for peaceful methods in making passionate dissent. This
includes "free expression and political participation"183 in that they can "vote for candidates who share their views, petition their
legislatures to [make or] change laws, . . . distribute literature alerting other citizens of their concerns[,]"184 and conduct peaceful
rallies and other similar acts.185 Free speech must, thus, be protected as a peaceful means of achieving one’s goal, considering the
possibility that repression of nonviolent dissent may spill over to violent means just to drive a point.

II.B.5

Every citizen’s expression with political consequences enjoys a high degree of protection. Respondents argue that the tarpaulinis
election propaganda, being petitioners’ way of endorsing candidates who voted against the RH Law and rejecting those who voted
for it.186 As such, it is subject to regulation by COMELEC under its constitutional mandate. 187 Election propaganda is defined under
Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . . .

....
4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published, printed, displayed or
exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the form of spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any Internet website, including, but not
limited to, social networks, blogging sites, and micro-blogging sites, in return for consideration, or otherwise capable of pecuniary
estimation.

On the other hand, petitioners invoke their "constitutional right to communicate their opinions, views and beliefs about issues and
candidates."188 They argue that the tarpaulin was their statement of approval and appreciation of the named public officials’ act of
voting against the RH Law, and their criticism toward those who voted in its favor. 189It was "part of their advocacy campaign against
the RH Law,"190 which was not paid for by any candidate or political party. 191 Thus, "the questioned orders which . . . effectively
restrain[ed] and curtail[ed] [their] freedom of expression should be declared unconstitutional and void." 192

This court has held free speech and other intellectual freedoms as "highly ranked in our scheme of constitutional values." 193 These
rights enjoy precedence and primacy.194 In Philippine Blooming Mills, this court discussed the preferred position occupied by
freedom of expression:

Property and property rights can belost thru prescription; but human rights are imprescriptible. If human rights are extinguished by
the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and ceases to be an efficacious
shield against the tyranny of officials, of majorities, ofthe influential and powerful, and of oligarchs - political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to
the preservation and vitality of our civil and political institutions; and such priority "gives these liberties the sanctity and the sanction
not permitting dubious intrusions."195 (Citations omitted)

This primordial right calls for utmost respect, more so "when what may be curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage."196 A similar idea appeared in our jurisprudence as early as 1969, which was Justice
Barredo’s concurring and dissenting opinion in Gonzales v. COMELEC:197

I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine democracy thrives only where
the power and right of the people toelect the men to whom they would entrust the privilege to run the affairs of the state exist. In the
language of the declaration of principles of our Constitution, "The Philippines is a republican state. Sovereignty resides in the people
and all government authority emanates from them" (Section 1, Article II). Translating this declaration into actuality, the Philippines is
a republic because and solely because the people in it can be governed only by officials whom they themselves have placed in
office by their votes. And in it is on this cornerstone that I hold it tobe self-evident that when the freedoms of speech, press and
peaceful assembly and redress of grievances are being exercised in relation to suffrage or asa means to enjoy the inalienable right
of the qualified citizen to vote, they are absolute and timeless. If our democracy and republicanism are to be worthwhile, the conduct
of public affairs by our officials must be allowed to suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and
at all times. Every holder of power in our government must be ready to undergo exposure any moment of the day or night, from
January to December every year, as it is only in this way that he can rightfully gain the confidence of the people. I have no patience
for those who would regard public dissection of the establishment as an attribute to be indulged by the people only at certain periods
of time. I consider the freedoms of speech, press and peaceful assembly and redress of grievances, when exercised in the name of
suffrage, as the very means by which the right itself to vote can only be properly enjoyed.It stands to reason therefore, that suffrage
itself would be next to useless if these liberties cannot be untrammelled [sic] whether as to degree or time.198 (Emphasis supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some types of speech may be subject to
regulation:

Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not
be injurious to the equal right of others or those of the community or society. The difference in treatment is expected because the
relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech.
Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe permissible scope of restrictions on various
categories of speech. We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as
"fighting words" are not entitled to constitutional protection and may be penalized.199 (Citations omitted)

We distinguish between politicaland commercial speech. Political speech refers to speech "both intended and received as a
contribution to public deliberation about some issue,"200 "foster[ing] informed and civicminded deliberation."201 On the other hand,
commercial speech has been defined as speech that does "no more than propose a commercial transaction." 202 The expression
resulting from the content of the tarpaulin is, however, definitely political speech. In Justice Brion’s dissenting opinion, he discussed
that "[t]he content of the tarpaulin, as well as the timing of its posting, makes it subject of the regulations in RA 9006 and Comelec
Resolution No. 9615."203 He adds that "[w]hile indeed the RH issue, by itself,is not an electoralmatter, the slant that the petitioners
gave the issue converted the non-election issue into a live election one hence, Team Buhay and Team Patay and the plea to
support one and oppose the other."204

While the tarpaulin may influence the success or failure of the named candidates and political parties, this does not necessarily
mean it is election propaganda. The tarpaulin was not paid for or posted "in return for consideration" by any candidate, political
party, or party-list group.

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and regulations implementing Republic Act
No. 9006 as an aid to interpret the law insofar as the facts of this case requires, states:

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published, printed, displayed or
exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the form of spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any Internet website, including, but not
limited to, social networks, blogging sites, and micro-blogging sites, in return for consideration, or otherwise capable of pecuniary
estimation. (Emphasis supplied)

It is clear that this paragraph suggests that personal opinions are not included, while sponsored messages are covered.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:

SECTION 1. Definitions - As used in this Resolution:

1. The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a
particular candidate or candidates to a public office, and shall include any of the following:

....

Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered acts of election campaigning
or partisan politicalactivity unless expressed by government officials in the Executive Department, the Legislative Department, the
Judiciary, the Constitutional Commissions, and members of the Civil Service.

In any event, this case does not refer to speech in cyberspace, and its effects and parameters should be deemed narrowly tailored
only in relation to the facts and issues in this case. It also appears that such wording in COMELEC Resolution No. 9615 does not
similarly appear in Republic Act No. 9006, the law it implements.

We should interpret in this manner because of the value of political speech.

As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion of public affairs. We acknowledged
that free speech includes the right to criticize the conduct of public men:

The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses
of official dom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a
clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted.206

Subsequent jurisprudence developed the right to petition the government for redress of grievances, allowing for criticism, save for
some exceptions.207 In the 1951 case of Espuelas v. People,208 this court noted every citizen’s privilege to criticize his or her
government, provided it is "specific and therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the
entire government set-up."209

The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision "penaliz[ing] the anonymous
criticism of a candidate by means of posters or circulars."211 This court explained that it is the poster’s anonymous character that is
being penalized.212 The ponente adds that he would "dislike very muchto see this decision made the vehicle for the suppression of
public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their views. According to this court, "[i]ts
value may lie in the fact that there may be something worth hearing from the dissenter [and] [t]hat is to ensurea true ferment of
ideas."215

Allowing citizens to air grievances and speak constructive criticisms against their government contributes to every society’s goal for
development. It puts forward matters that may be changed for the better and ideas that may be deliberated on to attain that purpose.
Necessarily, it also makes the government accountable for acts that violate constitutionally protected rights.

In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits mass media from selling print space
and air time for campaign except to the COMELEC, to be a democracy-enhancing measure.216This court mentioned how "discussion
of public issues and debate on the qualifications of candidates in an election are essential to the proper functioning of the
government established by our Constitution."217

As pointed out by petitioners, "speech serves one of its greatest public purposes in the context of elections when the free exercise
thereof informs the people what the issues are, and who are supporting what issues." 218 At the heart of democracy is every
advocate’s right to make known what the people need to know,219 while the meaningful exercise of one’s right of suffrage includes
the right of every voter to know what they need to know in order to make their choice.

Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public issues, and the freedom of expression
especially in relation to information that ensures the meaningful exercise of the right of suffrage:

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well
include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. Too many restrictions will
deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free,
clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is
the dissemination of information to make more meaningful the equally vital right of suffrage. 221(Emphasis supplied, citations omitted)

Speech with political consequences isat the core of the freedom of expression and must be protected by this court.

Justice Brion pointed out that freedomof expression "is not the god of rights to which all other rights and even government protection
of state interest must bow."222

The right to freedom of expression isindeed not absolute. Even some forms of protected speech are still subjectto some restrictions.
The degree of restriction may depend on whether the regulation is content-based or content-neutral.223 Content-based regulations
can either be based on the viewpoint of the speaker or the subject of the expression.

II.B.6

Content-based regulation

COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The order was made simply because
petitioners failed to comply with the maximum size limitation for lawful election propaganda. 224

On the other hand, petitioners argue that the present size regulation is content-based as it applies only to political speech and not to
other forms of speech such as commercial speech. 225 "[A]ssuming arguendo that the size restriction sought to be applied . . . is a
mere time, place, and manner regulation, it’s still unconstitutional for lack of a clear and reasonable nexus with a constitutionally
sanctioned objective."226

The regulation may reasonably be considered as either content-neutral or content-based.227 Regardless, the disposition of this case
will be the same. Generally, compared with other forms of speech, the proposed speech is content-based.

As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order applies only to posters and
tarpaulins that may affect the elections because they deliver opinions that shape both their choices. It does not cover, for instance,
commercial speech.

Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will be adjudged as "election
paraphernalia." There are no existing bright lines to categorize speech as election-related and those that are not. This is especially
true when citizens will want to use their resources to be able to raise public issues that should be tackled by the candidates as what
has happened in this case. COMELEC’s discretion to limit speech in this case is fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not easily divorced from the size of its
medium.

Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear and present danger rule as
measure.228 Thus, in Chavez v. Gonzales:

A content-based regulation, however, bears a heavy presumption of invalidity and is measured against the clear and present danger
rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposedare neither
overbroad nor vague.229 (Citations omitted)

Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely serious and the degree of
imminence extremely high.’"230 "Only when the challenged act has overcome the clear and present danger rule will it pass
constitutional muster, with the government having the burden of overcoming the presumed unconstitutionality." 231

Even with the clear and present danger test, respondents failed to justify the regulation. There is no compelling and substantial state
interest endangered by the posting of the tarpaulinas to justify curtailment of the right of freedom of expression. There is no reason
for the state to minimize the right of non-candidate petitioners to post the tarpaulin in their private property. The size of the tarpaulin
does not affect anyone else’s constitutional rights.

Content-based restraint or censorship refers to restrictions "based on the subject matter of the utterance or speech." 232 In contrast,
content-neutral regulation includes controls merely on the incidents of the speech such as time, place, or manner of the speech. 233

This court has attempted to define "content-neutral" restraints starting with the 1948 case of Primicias v. Fugoso. 234The ordinance in
this case was construed to grant the Mayor discretion only to determine the public places that may be used for the procession
ormeeting, but not the power to refuse the issuance of a permit for such procession or meeting. 235 This court explained that free
speech and peaceful assembly are "not absolute for it may be so regulated that it shall not beinjurious to the equal enjoyment of
others having equal rights, nor injurious to the rights of the community or society." 236

The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that prohibited the passing of animal-
drawn vehicles along certain roads at specific hours.238 This court similarly discussed police power in that the assailed rules carry
outthe legislative policy that "aims to promote safe transit upon and avoid obstructions on national roads, in the interest and
convenience of the public."239

As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of
excitement. . . ."241 It is with this backdrop that the state is justified in imposing restrictions on incidental matters as time, place, and
manner of the speech.

In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants must follow which include
informing the licensing authority ahead of time as regards the date, public place, and time of the assembly. 242 This would afford the
public official time to inform applicants if there would be valid objections, provided that the clear and present danger test is the
standard used for his decision and the applicants are given the opportunity to be heard. 243 This ruling was practically codified in
Batas Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.

Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral regulation. In the 2006 case of Bayan v.
Ermita,244 this court discussed how Batas Pambansa No. 880 does not prohibit assemblies but simply regulates their time, place,
and manner.245 In 2010, this court found in Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza committed
grave abuse of discretion when he modified the rally permit by changing the venue from Mendiola Bridge to Plaza Miranda without
first affording petitioners the opportunity to be heard.247

We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily divorced from the size of its
medium.

II.B.7

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for tarpaulins are content-neutral
regulations as these "restrict the mannerby which speech is relayed but not the content of what is conveyed." 248

If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass the three requirements for
evaluating such restraints on freedom of speech.249 "When the speech restraints take the form of a content-neutral regulation, only a
substantial governmental interest is required for its validity,"250 and it is subject only to the intermediate approach.251
This intermediate approach is based on the test that we have prescribed in several cases. 252 A content-neutral government
regulation is sufficiently justified:

[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if
the governmental interest is unrelated to the suppression of free expression; and [4] if the incident restriction on alleged [freedom of
speech & expression] is no greater than is essential to the furtherance of that interest. 253

On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the tarpaulin. As discussed earlier, this is
protected speech by petitioners who are non-candidates. On the second requirement, not only must the governmental interest be
important or substantial, it must also be compelling as to justify the restrictions made.

Compelling governmental interest would include constitutionally declared principles. We have held, for example, that "the welfare of
children and the State’s mandate to protect and care for them, as parens patriae, 254 constitute a substantial and compelling
government interest in regulating . . . utterances in TV broadcast."255

Respondent invokes its constitutional mandate to ensure equal opportunity for public information campaigns among candidates in
connection with the holding of a free, orderly, honest, peaceful, and credible election.256

Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure equality of public information
campaigns among candidates, as allowing posters with different sizes gives candidates and their supporters the incentive to post
larger posters[,] [and] [t]his places candidates with more money and/or with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities."257

First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private citizen] to freely express his
choice and exercise his right of free speech."258 In any case, faced with both rights to freedom of speech and equality, a prudent
course would be to "try to resolve the tension in a way that protects the right of participation." 259

Second, the pertinent election lawsrelated to private property only require that the private property owner’s consent be obtained
when posting election propaganda in the property.260 This is consistent with the fundamental right against deprivation of property
without due process of law.261 The present facts do not involve such posting of election propaganda absent consent from the
property owner. Thus, this regulation does not apply in this case.

Respondents likewise cite the Constitution262 on their authority to recommend effective measures to minimize election spending.
Specifically, Article IX-C, Section 2(7) provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates.
(Emphasis supplied) This does not qualify as a compelling and substantial government interest to justify regulation of the preferred
right to freedom of expression.

The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three feet (3’) size limitation under Section
6(c) of COMELEC Resolution No. 9615. This resolution implements the Fair Election Act that provides for the same size
limitation.263

This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation are of marginal significance." 264 In fact, speech with political
consequences, as in this case, should be encouraged and not curtailed. As petitioners pointed out, the size limitation will not serve
the objective of minimizing election spending considering there is no limit on the number of tarpaulins that may be posted.265

The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing the restriction, but more so at
the effects of such restriction, if implemented. The restriction must not be narrowly tailored to achieve the purpose. It must be
demonstrable. It must allow alternative avenues for the actor to make speech.

In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum sizeof the tarpaulin would
render ineffective petitioners’ message and violate their right to exercise freedom of expression.

The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading expressions with political consequences.
These should be encouraged, more so when exercised to make more meaningful the equally important right to suffrage.
The restriction in the present case does not pass even the lower test of intermediate scrutiny for content-neutral regulations.

The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate. Given the stature of petitioners and
their message, there are indicators that this will cause a "chilling effect" on robust discussion during elections.

The form of expression is just as important as the message itself. In the words of Marshall McLuhan, "the medium is the
message."266 McLuhan’s colleague and mentor Harold Innis has earlier asserted that "the materials on which words were written
down have often counted for more than the words themselves."267

III
Freedom of expression and equality

III.A

The possibility of abuse

Of course, candidates and political parties do solicit the help of private individuals for the endorsement of their electoral campaigns.

On the one extreme, this can take illicit forms such as when endorsement materials in the form of tarpaulins, posters, or media
advertisements are made ostensibly by "friends" but in reality are really paid for by the candidate or political party. This skirts the
constitutional value that provides for equal opportunities for all candidates.

However, as agreed by the parties during the oral arguments in this case, this is not the situation that confronts us. In such cases, it
will simply be a matter for investigation and proof of fraud on the part of the COMELEC.

The guarantee of freedom of expression to individuals without any relationship to any political candidate should not be held hostage
by the possibility of abuse by those seeking to be elected. It is true that there can be underhanded, covert, or illicit dealings so as to
hide the candidate’s real levels of expenditures. However, labelling all expressions of private parties that tend to have an effect on
the debate in the elections as election paraphernalia would be too broad a remedy that can stifle genuine speech like in this case.
Instead, to address this evil, better and more effective enforcement will be the least restrictive means to the fundamental freedom.

On the other extreme, moved by the credentials and the message of a candidate, others will spend their own resources in order to
lend support for the campaigns. This may be without agreement between the speaker and the candidate or his or her political party.
In lieu of donating funds to the campaign, they will instead use their resources directly in a way that the candidate or political party
would have doneso. This may effectively skirt the constitutional and statutory limits of campaign spending.

Again, this is not the situation in this case.

The message of petitioners in thiscase will certainly not be what candidates and political parties will carry in their election posters or
media ads. The message of petitioner, taken as a whole, is an advocacy of a social issue that it deeply believes. Through rhetorical
devices, it communicates the desire of Diocese that the positions of those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a stand on a social issue; only secondarily — even almost
incidentally — will cause the election or non-election of a candidate.

The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such devices as sarcasm, irony and
ridicule to deride prevailing vices or follies,"268 and this may target any individual or group in society, private and government alike. It
seeks to effectively communicate a greater purpose, often used for "political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to have the high-and-mighty
lampooned and spoofed."270 Northrop Frye, wellknown in this literary field, claimed that satire had two defining features: "one is wit
or humor founded on fantasy or a sense of the grotesque and absurd, the other is an object of attack." 271 Thus, satire frequently
uses exaggeration, analogy, and other rhetorical devices.

The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could the Archbishop of the Diocese
of Bacolod have intended it to mean that the entire plan of the candidates in his list was to cause death intentionally. The tarpaulin
caricatures political parties and parodies the intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed with the
list of "Team Buhay" that further emphasizes the theme of its author: Reproductive health is an important marker for the church of
petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates. Election paraphernalia from candidates and
political parties are more declarative and descriptive and contain no sophisticated literary allusion to any social objective. Thus, they
usually simply exhort the public to vote for a person with a brief description of the attributes of the candidate. For example "Vote for
[x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa Makati."
This court’s construction of the guarantee of freedom of expression has always been wary of censorship or subsequent punishment
that entails evaluation of the speaker’s viewpoint or the content of one’s speech. This is especially true when the expression
involved has political consequences. In this case, it hopes to affect the type of deliberation that happens during elections. A
becoming humility on the part of any human institution no matter how endowed with the secular ability to decide legal controversies
with finality entails that we are not the keepers of all wisdom.

Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent. Tolerance has always been a
libertarian virtue whose version is embedded in our Billof Rights. There are occasional heretics of yesterday that have become our
visionaries. Heterodoxies have always given us pause. The unforgiving but insistent nuance that the majority surely and comfortably
disregards provides us with the checks upon reality that may soon evolve into creative solutions to grave social problems. This is the
utilitarian version. It could also be that it is just part of human necessity to evolve through being able to express or communicate.

However, the Constitution we interpret is not a theoretical document. It contains other provisions which, taken together with the
guarantee of free expression, enhances each other’s value. Among these are the provisions that acknowledge the idea of equality.
In shaping doctrine construing these constitutional values, this court needs to exercise extraordinary prudence and produce
narrowly tailored guidance fit to the facts as given so as not to unwittingly cause the undesired effect of diluting freedoms as
exercised in reality and, thus, render them meaningless.

III.B.

Speech and equality:

Some considerations We first establish that there are two paradigms of free speech that separate at the point of giving priority to
equality vis-à-vis liberty.272

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but regulation promoting political
equality prevails over speech."273 This view allows the government leeway to redistribute or equalize ‘speaking power,’ such as
protecting, even implicitly subsidizing, unpopular or dissenting voices often systematically subdued within society’s ideological
ladder.274 This view acknowledges that there are dominant political actors who, through authority, power, resources, identity, or
status, have capabilities that may drown out the messages of others. This is especially true in a developing or emerging economy
that is part of the majoritarian world like ours.

The question of libertarian tolerance

This balance between equality and the ability to express so as to find one’s authentic self or to participate in the self determination of
one’s communities is not new only to law. It has always been a philosophical problematique.

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse recognized how institutionalized
inequality exists as a background limitation, rendering freedoms exercised within such limitation as merely "protect[ing] the already
established machinery of discrimination."275 In his view, any improvement "in the normal course of events" within an unequal society,
without subversion, only strengthens existing interests of those in power and control. 276

In other words, abstract guarantees of fundamental rights like freedom of expression may become meaningless if not taken in a real
context. This tendency to tackle rights in the abstract compromises liberties. In his words:

Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results from a whole series of synthetic
judgments. It stipulates the ability to determine one’s own life: to be able to determine what to do and what not to do, what to suffer
and what not. But the subject of this autonomy is never the contingent, private individual as that which he actually is or happens to
be; it is rather the individual as a human being who is capable of being free with the others. And the problem of making possible
such a harmony between every individual liberty and the other is not that of finding a compromise between competitors, or between
freedom and law, between general and individual interest, common and private welfare in an established society, but of creating the
society in which man is no longer enslaved by institutions which vitiate self-determination from the beginning. In other words,
freedom is still to be created even for the freest of the existing societies. 277 (Emphasis in the original)

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by the people — "implies a
necessary condition, namely, that the people must be capable of deliberating and choosing on the basis of knowledge, that they
must have access to authentic information, and that, on this basis, their evaluation must be the result of autonomous thought."278 He
submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete peacefully for adherence and persuasion on rational
grounds: the ‘marketplace of ideas’ is organized and delimited by those who determine the national and the individual interest."279 A
slant toward left manifests from his belief that "there is a ‘natural right’ of resistance for oppressed and overpowered minorities to
use extralegal means if the legal ones have proved to be inadequate."280 Marcuse, thus, stands for an equality that breaks away and
transcends from established hierarchies, power structures, and indoctrinations. The tolerance of libertarian society he refers to as
"repressive tolerance."
 Legal scholars

The 20th century also bears witness to strong support from legal scholars for "stringent protections of expressive
liberty,"281 especially by political egalitarians. Considerations such as "expressive, deliberative, and informational interests," 282 costs
or the price of expression, and background facts, when taken together, produce bases for a system of stringent protections for
expressive liberties.283

Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed that "public discussion is a
political duty."284 Cass Sustein placed political speech on the upper tier of his twotier model for freedom of expression, thus,
warranting stringent protection.285 He defined political speech as "both intended and received as a contribution to public deliberation
about some issue."286

But this is usually related also tofair access to opportunities for such liberties.287 Fair access to opportunity is suggested to mean
substantive equality and not mere formal equalitysince "favorable conditions for realizing the expressive interest will include some
assurance of the resources required for expression and some guarantee that efforts to express views on matters of common
concern will not be drowned out by the speech of betterendowed citizens."288 Justice Brandeis’ solution is to "remedy the harms of
speech with more speech."289 This view moves away from playing down the danger as merely exaggerated, toward "tak[ing] the
costs seriously and embrac[ing] expression as the preferred strategy for addressing them." 290 However, in some cases, the idea of
more speech may not be enough. Professor Laurence Tribe observed the need for context and "the specification of substantive
values before [equality] has full meaning."291 Professor Catherine A. MacKinnon adds that "equality continues to be viewed in a
formal rather than a substantive sense."292 Thus, more speech can only mean more speech from the few who are dominant rather
than those who are not.

Our jurisprudence

This court has tackled these issues.

Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b) ofthe Electoral Reforms Law of
1987.293 This section "prohibits mass media from selling or giving free of charge print space or air time for campaign or other political
purposes, except to the Commission on Elections."294 This court explained that this provision only regulates the time and manner of
advertising in order to ensure media equality among candidates.295 This court grounded this measure on constitutional provisions
mandating political equality:296 Article IX-C, Section 4

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation and other public utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. (Emphasis
supplied)

Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures that protect and enhance the right of all the people
to human dignity, reducesocial, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and
political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. (Emphasis
supplied)

Article II, Section 26

Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be
defined by law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive expressive freedoms that take
equality of opportunities into consideration during elections.

The other view

However, there is also the other view. This is that considerations of equality of opportunity or equality inthe ability of citizens as
speakers should not have a bearing in free speech doctrine. Under this view, "members of the public are trusted to make their own
individual evaluations of speech, and government is forbidden to intervene for paternalistic or redistributive reasons . . . [thus,] ideas
are best left to a freely competitive ideological market."297 This is consistent with the libertarian suspicion on the use of viewpoint as
well as content to evaluate the constitutional validity or invalidity of speech.

The textual basis of this view is that the constitutional provision uses negative rather than affirmative language. It uses ‘speech’ as
its subject and not ‘speakers’.298 Consequently, the Constitution protects free speech per se, indifferent to the types, status, or
associations of its speakers.299 Pursuant to this, "government must leave speakers and listeners in the private order to their own
devices in sorting out the relative influence of speech."300

Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom of speech includes "not only the
right to express one’s views, but also other cognate rights relevant to the free communication [of] ideas, not excluding the right to be
informed on matters of public concern."301 She adds:

And since so many imponderables may affect the outcome of elections — qualifications of voters and candidates, education, means
of transportation, health, public discussion, private animosities, the weather, the threshold of a voter’s resistance to pressure — the
utmost ventilation of opinion of men and issues, through assembly, association and organizations, both by the candidate and the
voter, becomes a sine qua non for elections to truly reflect the will of the electorate. 302 (Emphasis supplied)

Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech primacy such that"courts, as a rule
are wary to impose greater restrictions as to any attempt to curtail speeches with political content," 303 thus:

the concept that the government may restrict the speech of some elements in our society in order to enhance the relative voice of
the others is wholly foreign to the First Amendment which was designed to "secure the widest possible dissemination of information
from diverse and antagonistic sources" and "to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people."304

This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the best alternative to censorship."305

Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme Court in the campaign
expenditures case of Buckley v. Valeo "condemned restrictions (even if content-neutral) on expressive liberty imposed in the name
of ‘enhanc[ing] the relative voice of others’ and thereby ‘equaliz[ing] access to the political arena." 306 The majority did not use the
equality-based paradigm.

One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can speak, which takes out of his
exclusive judgment the decision of when enough is enough, deprives him of his free speech."307

Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the sum of public information and runs
counter to our ‘profound national commitment that debate on public issues should be uninhibited, robust, and wide-open.’"308

In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the plight of those without funds in the
first place . . . [and] even if one’s main concern isslowing the increase in political costs, it may be more effective torely on market
forces toachieve that result than on active legal intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the sky’s the limit [because in] any campaign there are saturation levels and a point where spending no
longer pays off in votes per dollar."310

III. C.

When private speech amounts

to election paraphernalia

The scope of the guarantee of free expression takes into consideration the constitutional respect for human potentiality and the
effect of speech. It valorizes the ability of human beings to express and their necessity to relate. On the other hand, a complete
guarantee must also take into consideration the effects it will have in a deliberative democracy. Skewed distribution of resources as
well as the cultural hegemony of the majority may have the effect of drowning out the speech and the messages of those in the
minority. In a sense, social inequality does have its effect on the exercise and effect of the guarantee of free speech. Those who
have more will have better access to media that reaches a wider audience than those who have less. Those who espouse the more
popular ideas will have better reception than the subversive and the dissenters of society.To be really heard and understood, the
marginalized view normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her expression. This view, thus,
restricts laws or regulation that allows public officials to make judgments of the value of such viewpoint or message content. This
should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must provide limits to some expression during
electoral campaigns.

Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the members of their political parties
or their political parties may be regulated as to time, place, and manner. This is the effect of our rulings in Osmeña v. COMELEC
and National Press Club v. COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not speak as
members of a political party which are, taken as a whole, principally advocacies of a social issue that the public must consider
during elections is unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest possible range of
opinions coming from the electorate including those that can catalyze candid, uninhibited, and robust debate in the criteria for the
choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which will not amount toan election paraphernalia to
be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not candidates or
who do not speak as members of a political party if they are not candidates, only if what is regulated is declarative speech that,
taken as a whole, has for its principal object the endorsement of a candidate only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering
the primacy of the guarantee of free expression, and (d) demonstrably the least restrictive means to achieve that object. The
regulation must only be with respect to the time, place, and manner of the rendition of the message. In no situation may the speech
be prohibited or censored onthe basis of its content. For this purpose, it will notmatter whether the speech is made with or on private
property.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal message in the twin tarpaulins of
petitioners consists of a social advocacy.

Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law — Section 3.3 of Republic Act No. 9006
and Section 6(c) of COMELEC Resolution No. 9615 — if applied to this case, will not pass the test of reasonability. A fixed size for
election posters or tarpaulins without any relation to the distance from the intended average audience will be arbitrary. At certain
distances, posters measuring 2 by 3 feet could no longer be read by the general public and, hence, would render speech
meaningless. It will amount to the abridgement of speech with political consequences.

IV
Right to property

Other than the right to freedom of expression311 and the meaningful exercise of the right to suffrage,312 the present case also
involves one’s right to property.313

Respondents argue that it is the right of the state to prevent the circumvention of regulations relating to election propaganda by
applying such regulations to private individuals.314 Certainly, any provision or regulation can be circumvented. But we are not
confronted with this possibility. Respondents agree that the tarpaulin in question belongs to petitioners. Respondents have also
agreed, during the oral arguments, that petitioners were neither commissioned nor paid by any candidate or political party to post
the material on their walls.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of petitioners. Their right to use
their property is likewise protected by the Constitution.

In Philippine Communications Satellite Corporation v. Alcuaz:315

Any regulation, therefore, which operates as an effective confiscation of private property or constitutes an arbitrary or unreasonable
infringement of property rights is void, because it is repugnant to the constitutional guaranties of due process and equal protection of
the laws.316 (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and stickers should be posted is "so broad that it
encompasses even the citizen’s private property."317 Consequently, it violates Article III, Section 1 of the Constitution which provides
thatno person shall be deprived of his property without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the
Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of
it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup.
Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person’s acquisitions without control or diminution save
by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])318

This court ruled that the regulation in Adiong violates private property rights:

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden
of justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any
place, whether public or private, except inthe common poster areas sanctioned by COMELEC. This means that a private person
cannot post his own crudely prepared personal poster on his own front dooror on a post in his yard. While the COMELEC will
certainly never require the absurd, there are no limits to what overzealous and partisan police officers, armed with a copy of the
statute or regulation, may do.319 Respondents ordered petitioners, who are private citizens, to remove the tarpaulin from their own
property. The absurdity of the situation is in itself an indication of the unconstitutionality of COMELEC’s interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may be no expression when there is no place
where the expression may be made. COMELEC’s infringement upon petitioners’ property rights as in the present case also reaches
out to infringement on their fundamental right to speech.

Respondents have not demonstrated thatthe present state interest they seek to promote justifies the intrusion into petitioners’
property rights. Election laws and regulations must be reasonable. It must also acknowledge a private individual’s right to exercise
property rights. Otherwise, the due process clause will be violated.

COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election propaganda in private property
without the consent of the owners of such private property. COMELEC has incorrectly implemented these regulations. Consistent
with our ruling in Adiong, we find that the act of respondents in seeking to restrain petitioners from posting the tarpaulin in their own
private property is an impermissible encroachments on the right to property.

V
Tarpaulin and its message are not religious speech

We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice and letter violated the right of
petitioners to the free exercise of their religion.

At the outset, the Constitution mandates the separation of church and state. 320 This takes many forms. Article III, Section 5 of the
Constitution, for instance provides:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. Noreligious test
shall be required for the exercise of civil or political rights.

There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the free exercise and enjoyment of
religious profession and worship.323

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious make such act immune from any
secular regulation.324 The religious also have a secular existence. They exist within a society that is regulated by law.

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to religious expression. This
notwithstanding petitioners’ claim that "the views and position of the petitioners, the Bishop and the Diocese of Bacolod, on the RH
Bill is inextricably connected to its Catholic dogma, faith, and moral teachings. . . ." 325

The difficulty that often presents itself in these cases stems from the reality that every act can be motivated by moral, ethical, and
religious considerations. In terms of their effect on the corporeal world, these acts range from belief, to expressions of these faiths,
to religious ceremonies, and then to acts of a secular character that may, from the point of view of others who do not share the
same faith or may not subscribe to any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive on this court. Certainly, our powers of adjudication
cannot be blinded by bare claims that acts are religious in nature.

Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of Cebu326 in claiming that the
court "emphatically" held that the adherents ofa particular religion shall be the ones to determine whether a particular matter shall be
considered ecclesiastical in nature.327 This court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag ceremony
"out of respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay seem to others." 328 This court found a balance
between the assertion of a religious practice and the compelling necessities of a secular command. It was an early attempt at
accommodation of religious beliefs.

In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain
circumstances. Accommodations are government policies that take religion specifically intoaccount not to promote the government’s
favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect
therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion. As Justice Brennan explained, the
"government [may] take religion into account . . . to exempt, when possible, from generally applicable governmental regulation
individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may flourish."330

This court also discussed the Lemon test in that case, such that a regulation is constitutional when: (1) it has a secular legislative
purpose; (2) it neither advances nor inhibits religion; and (3) it does not foster an excessive entanglement with religion. 331

As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious doctrine of the Catholic
church."332 That the position of the Catholic church appears to coincide with the message of the tarpaulin regarding the RH Law
does not, by itself, bring the expression within the ambit of religious speech. On the contrary, the tarpaulin clearly refers to
candidates classified under "Team Patay" and "Team Buhay" according to their respective votes on the RH Law.

The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the expression onthe tarpaulin is an
ecclesiastical matter. With all due respect to the Catholic faithful, the church doctrines relied upon by petitioners are not binding
upon this court. The position of the Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting
by one of its members of a tarpaulin as religious speech solely on such basis. The enumeration of candidates on the face of the
tarpaulin precludes any doubtas to its nature as speech with political consequences and not religious speech.

Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations Commission 333 cited by petitioners finds
no application in the present case. The posting of the tarpaulin does not fall within the category of matters that are beyond the
jurisdiction of civil courts as enumerated in the Austriacase such as "proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities withattached religious significance." 334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this case. However, it was
misdirected.

COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending among candidates and their
registered political parties. It is not to regulate or limit the speech of the electorate as it strives to participate inthe electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are running for public office.Their message may be
construed generalizations of very complex individuals and party-list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected speech.

That petitioners chose to categorize them as purveyors of death or of life on the basis of a single issue — and a complex piece of
legislation at that — can easily be interpreted as anattempt to stereo type the candidates and party-list organizations. Not all may
agree to the way their thoughts were expressed, as in fact there are other Catholic dioceses that chose not to follow the example of
petitioners.

Some may have thought that there should be more room to consider being more broad-minded and non-judgmental. Some may
have expected that the authors would give more space to practice forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties. It is not a detailed code that
prescribes good conduct. It provides space for all to be guided by their conscience, not only in the act that they do to others but also
in judgment of the acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the minority. This can often be expressed by
dominant institutions, even religious ones. That they made their point dramatically and in a large way does not necessarily mean
that their statements are true, or that they have basis, or that they have been expressed in good taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of expression protected by our
fundamental law. It is an expression designed to invite attention, cause debate, and hopefully, persuade. It may be motivated by the
interpretation of petitioners of their ecclesiastical duty, but their parishioner’s actions will have very real secular consequences.
Certainly, provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by the electorate that tends to rouse the public to
debate contemporary issues. This is not speechby candidates or political parties to entice votes. It is a portion of the electorate
telling candidates the conditions for their election. It is the substantive content of the right to suffrage.

This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected as a fundamental and
primordial right by our Constitution. The expression in the medium chosen by petitioners deserves our protection.

WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued is hereby made permanent. The
act of the COMELEC in issuing the assailed notice dated February 22, 2013 and letter dated February 27, 2013 is declared
unconstitutional.

SO ORDERED.

G.R. No. 206020, April 14, 2015

1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner, v. COMMISSION ON ELECTIONS, Respondent.

DECISION

REYES, J.:

The right to participate in electoral processes is a basic and fundamental right in any democracy. It includes not only the right to
vote, but also the right to urge others to vote for a particular candidate. The right to express one's preference for a candidate is
likewise part of the fundamental right to free speech. Thus, any governmental restriction on the right to convince others to vote for a
candidate carries with it a heavy presumption of invalidity.

This is a petition for certiorari1 under Rule 64 and Rule 65 of the Rules of Court filed by 1-United Transport Koalisyon (petitioner), a
party-list organization, assailing Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 2 of the Commission
on Elections (COMELEC).

The Facts

On February 12, 2001, Republic Act (R.A.) No. 9006, otherwise known as the "Fair Elections Act", was passed. Section 9 thereof
provides:

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list groups to erect common
poster areas for their candidates in not more than ten (10) public places such as plazas, markets, barangay centers and the like,
wherein candidates can post, display or exhibit election propaganda: Provided that the size of the poster areas shall not exceed
twelve (12) by sixteen (16) feet or its equivalent.

Independent candidates with no political parties may likewise be authorized to erect common poster areas in not more than ten (10)
public places, the size of which shall not exceed four (4) by six (6) feet or its equivalent.

Candidates may post any lawful propaganda material in private places with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially among the candidates.

On January 15, 2013, the COMELEC promulgated Resolution No. 9615, which provided for the rules implementing R.A. No. 9006 in
connection with the May 13, 2013 national and local elections and subsequent elections. Section 7 thereof, which enumerates the
prohibited forms of election propaganda, pertinently provides:
SEC. 7. Prohibited Forms of Election Propaganda. - During the campaign period, it is unlawful:

xxxx

(f) To post, display or exhibit any election campaign or propaganda material outside of authorized common poster areas, in public
places, or in private properties without the consent of the owner thereof.

(g) Public places referred to in the previous subsection (f) include any of the following:
xxxx

5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries, pedicabs and tricycles, whether motorized or not;

6. Within the premises of public transport terminals, such as bus terminals, airports, seaports, docks, piers, train stations, and the
like.
The violation of items [5 and 6] under subsection (g) shall be a cause for the revocation of the public utility franchise and will make
the owner and/or operator of the transportation service and/or terminal liable for an election offense under Section 9 of Republic Act
No. 9006 as implemented by Section 18 (n) of these Rules.3

In its letter4 dated January 30, 2013, the petitioner, through its president, Melencio F. Vargas, sought clarification from the
COMELEC as regards the application of Resolution No. 9615, particularly Section 7(g) items (5) and (6), in relation to Section
7(f), vis-a-vis privately owned public utility vehicles (PUVs) and transport terminals. The petitioner explained that the prohibition
stated in the aforementioned provisions impedes the right to free speech of the private owners of PUVs and transport terminals. The
petitioner then requested the COMELEC to reconsider the implementation of the assailed provisions and allow private owners of
PUVs and transport terminals to post election campaign materials on their vehicles and transport terminals.

On February 5, 2013, the COMELEC en banc issued Minute Resolution No. 13-0214,5 which denied the petitioner's request to
reconsider the implementation of Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615. The
COMELEC en banc, adopting the recommendation of Commissioner Christian Robert S. Lim, opined that:

From the foregoing, x x x the primary fact in consideration here is actually whether 1 -UTAK or any other [PUV] owners in the same
position do in fact possess a franchise and/or certificate of public convenience and operate as a public utility. If it does not,
then the ruling in Adiong applies squarely. If it does, then its operations, pursuant to Section 4, Article IX-C of the Constitution, will
be placed directly under the supervision and regulation of the Commission for the duration of the election period so as to ensure
equality of opportunity, time, and space for all candidates in the placement of political advertisements. Having placed their property
for use by the general public and having secured a license or permit to do so, 1-UTAK and other PUV owners, as well as transport
terminal owners, cannot now complain that their property is subject to regulation by the State. Securing a franchise or a certificate of
public convenience in their favor does not exempt them from the burdens imposed by the Constitution, Republic Act No. 9006 x x x,
and other related statutes. It must be stressed that the Constitution itself, under Section 6, Article XII, commands that the use of
property bears a social function and all economic agents shall contribute to the common good; and there is no higher
Common good than that as espoused in R.A. No. 9006 - the equalization of opportunities for all candidates for political office during
elections - a policy which Res. No. 9615 merely implements.

As required in Adiong, and in compliance with the O'Brien standards, the prohibition furthers two important and substantial
governmental interests - equalizing opportunity, time, and space for all candidates, and putting to a stop excessive campaign
spending. The regulation bears a clear and reasonable nexus with these Constitutionally- and statutorily-sanctioned objectives, and
the infringement of freedom is merely incidental and limited as to time. The Commission has not taken away all avenues of
expression available to PUV and transport terminal owners. They may express their political preferences elsewhere.

The exact purpose for placing political advertisements on a PUV or in transport terminals is exactly because it is public and can be
seen by all; and although it is true that private vehicles ply the same route as public vehicles, the exposure of a [PUV] servicing the
general, riding public is much more compared to private vehicles. Categorizing PUVs and transport terminals as 'public places'
under Section 7 (f) of Reso. No. 9615 is therefore logical. The same reasoning for limiting political advertisements in print media,
in radio, and in television therefore holds true for political advertisements in PUVs and transport terminals.6

Hence, the instant petition.

Arguments of the Petitioner

The petitioner maintains that Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 violate the right to free
speech of the owners of PUVs and transport terminals; that the prohibition curtails their ideas of who should be voted by the public.
The petitioner also claims that there is no substantial public interest threatened by the posting of political advertisements on PUVs
and transport terminals to warrant the prohibition imposed by the COMELEC. Further, the petitioner posits that the ownership of the
PUVs per se, as well as the transport terminals, remains private and, hence, the owners thereof could not be prohibited by the
COMELEC from expressing their political opinion lest their property rights be unduly intruded upon.

Further, assuming that substantial public interest exists in the said prohibition imposed under Resolution No. 9615, the petitioner
claims that the curtailment of the right to free speech of the owners of PUVs and transport terminals is much greater than is
necessary to achieve the desired governmental purpose, i.e., ensuring equality of opportunity to all candidates in elective office.
 Arguments of COMELEC

On the other hand, the COMELEC posits that privately-owned PUVs and transport terminals are public spaces that are subject to its
regulation. It explains that under the Constitution, the COMELEC has the power to enforce and administer all laws and regulations
relative to the conduct of an election, including the power to regulate the enjoyment or utilization of all franchises and permits for the
operation of transportation utilities.

The COMELEC points out that PUVs and private transport terminals hold a captive audience - the commuters, who have no choice
but be subjected to the blare of political propaganda. Thus, the COMELEC avers, it is within its constitutional authority to prevent
privately-owned PUVs and transport terminals from concurrently serving campaign materials to the captive audience that they
transport.

The COMELEC further claims that Resolution No. 9615 is a valid content-neutral regulation and, thus, does not impinge on the
constitutional right to freedom of speech. It avers that the assailed regulation is within the constitutional power of the COMELEC
pursuant to Section 4, Article IX-C of the Constitution. The COMELEC alleges that the regulation simply aims to ensure equal
campaign opportunity, time, and space for all candidates - an important and substantial governmental interest, which is totally
unrelated to the suppression of free expression; that any restriction on free speech is merely incidental and is no greater than is
essential to the furtherance of the said governmental interest.

The Issue

The petitioner presents the following issues for the Court's resolution:

I. [WHETHER] RESOLUTION NO. 9615 VIOLATES THE RIGHT TO FREE SPEECH OF THE OWNERS OF [PUVs] AND
TRANSPORT TERMINALS.

II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A RESTRAINT TO FREE SPEECH AND EXPRESSION FOR FAILURE TO
SATISFY THE O'BRIEN TEST.

III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO GIVE AN EQUAL OPPORTUNITY TO INFORM THE ELECTORATE IS
NOT IMPAIRED BY POSTING POLITICAL ADVERTISEMENTS ON PUVs AND TRANSPORT TERMINALS.

IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS DIFFERENT AND INDEPENDENT FROM THE FRANCHISE OR
OPERATION OF THE PUBLIC UTILITY, THE FORMER BEING BEYOND THE POWER OF REGULATION BY THE COMELEC. 7

In sum, the issue presented for the Court's resolution is whether Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615, which prohibits the posting of any election campaign or propaganda material, inter alia, in PUVs and public
transport terminals are valid regulations.

Ruling of the Court

The petition is meritorious.

Resolution No. 9615, which was promulgated pursuant to Section 4, Article IX-C of the Constitution and the provisions of R.A. No.
9006, lays down the administrative rules relative to the COMELEC's exercise of its supervisory and regulatory powers over all
franchises and permits for the operation of transportation and other public utilities, media of communication or information, and all
grants, special privileges, or concessions granted by the Government.

Like any other administrative regulations, Resolution No. 9615, or any part thereof, must not run counter to the Constitution. It is
basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect.
The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution.8 In this
regard, an administrative regulation, even if it purports to advance a legitimate governmental interest, may not be permitted to run
roughshod over the cherished rights of the people enshrined in the Constitution.

Section 7(g) items (5) and (6), in

relation to Section 7(f), of Resolution No.
9615 are prior restraints on speech.

Free speech may be identified with the liberty to discuss publicly and truthfully any matter of public concern without prior restraint or
censorship and subsequent punishment.9 Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government
censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or
judicial branch of the government.10 Any system of prior restraints of expression comes to this Court bearing a heavy presumption
against its validity.11

Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 unduly infringe on the fundamental right of the
people to freedom of speech. Central to the prohibition is the freedom of individuals, i.e., the owners of PUVs and private transport
terminals, to express their preference, through the posting of election campaign material in their property, and convince others to
agree with them.
Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign material during an election period in PUVs
and transport terminals carries with it the penalty of revocation of the public utility franchise and shall make the owner thereof liable
for an election offense.

The prohibition constitutes a clear prior restraint on the right to free expression of the owners of PUVs and transport terminals. As a
result of the prohibition, owners of PUVs and transport terminals are forcefully and effectively inhibited from expressing their
preferences under the pain of indictment for an election offense and the revocation of their franchise or permit to operate.

It is now deeply embedded in our jurisprudence that freedom of speech and of the press enjoys a preferred status in our hierarchy of
rights. The rationale is that the preservation of other rights depends on how well we protect our freedom of speech and of the
press.12 It has been our constant holding that this preferred freedom calls all the more for utmost respect when what may be
curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. 13

Thus, in Adiong v. COMELEC,14 the Court struck down the COMELEC's prohibition against the posting of decals and stickers on
"mobile places." The Court ratiocinated that:

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political
party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to
convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on
his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. If, in the National
Press Club case, the Court was careful to rule out restrictions on reporting by newspaper or radio and television stations and
commentators or columnists as long as these are not correctly paid-for advertisements or purchased opinions with less reason can
we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person
who pastes a sticker or decal on his private property.15 (Emphases ours)

The assailed prohibition on posting

election campaign materials is an
invalid content-neutral regulation
repugnant to the free speech clause.

The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution No. 9615 may incidentally restrict the right to free
speech of owners of PUVs and transport terminals, the same is nevertheless constitutionally permissible since it is a valid content-
neutral regulation. The Court does not agree.

A content-neutral regulation, i.e., which is merely concerned with the incidents of the speech, or one that merely controls the time,
place or manner, and under well-defined standards,16 is constitutionally permissible, even if it restricts the right to free speech,
provided that the following requisites concur: first, the government regulation is within the constitutional power of the
Government; second, it furthers an important or substantial governmental interest; third, the governmental interest is unrelated to
the suppression of free expression; and fourth, the incidental restriction on freedom of expression is no greater than is essential to
the furtherance of that interest.17

Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations since they merely control the place where
election campaign materials may be posted. However, the prohibition is still repugnant to the free speech clause as it fails to satisfy
all of the requisites for a valid content-neutral regulation.

It is conceded that Resolution No. 9615, including the herein assailed provisions, furthers an important and substantial
governmental interest, i.e., ensuring equal opportunity, time and space among candidates aimed at the holding of free, orderly,
honest, peaceful, and credible elections. It is further conceded that the governmental interest in imposing the said prohibition is
unrelated to the suppression of free expression. However, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution
No. 9615, are not within the constitutionally delegated power of the COMELEC under Section 4, Article IX-C of the Constitution.
Also, there is absolutely no necessity to restrict the right to free speech of the owners of PUVs and transport terminals.

The COMELEC may only regulate

the franchise or permit to operate and
not the ownership per se of PUVs
and transport terminals.

The prohibition under Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 is not within the COMELEC's
constitutionally delegated power of supervision or regulation. It is not disputed that the COMELEC has the power to supervise or
regulate the enjoyment or utilization of all franchises or permits for the operation of transportation utilities during an election period.
Section 4, Article IX-C of the Constitution, thus provides:

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation and other public utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.
Nevertheless, the constitutional grant of supervisory and regulatory powers to the COMELEC over franchises and permits to
operate, though seemingly unrestrained, has its limits. Notwithstanding the ostensibly broad supervisory and regulatory powers
granted to the COMELEC during an election period under Section 4, Article IX-C of the Constitution, the Court had previously set
out the limitations thereon. In Adiong, the Court, while recognizing that the COMELEC has supervisory power vis-a-vis the conduct
and manner of elections under Section 4, Article IX-C of the Constitution, nevertheless held that such supervisory power does not
extend to the very freedom of an individual to express his preference of candidates in an election by placing election campaign
stickers on his vehicle.

In National Press Club v. COMELEC,18 while the Court upheld the constitutionality of a prohibition on the selling or giving free of
charge, except to the COMELEC, of advertising space and commercial time during an election period, it was emphasized that the
grant of supervisory and regulatory powers to the COMELEC under Section 4, Article IX-C of the Constitution, is limited to ensuring
equal opportunity, time, space, and the right to reply among candidates.

Further, in Social Weather Stations, Inc. v. COMELEC,19 the Court, notwithstanding the grant of supervisory and regulatory powers
to the COMELEC under Section 4, Article IX-C of the Constitution, declared unconstitutional a regulation prohibiting the release of
election surveys prior to the election since it "actually suppresses a whole class of expression, while allowing the expression of
opinion concerning the same subject matter by newspaper columnists, radio and [television (TV)] commentators, armchair theorists,
and other opinion makers."20

In the instant case, the Court further delineates the constitutional grant of supervisory and regulatory powers to the COMELEC
during an election period. As worded, Section 4, Article IX-C of the Constitution only grants COMELEC supervisory and regulatory
powers over the enjoyment or utilization "of all franchises or permits for the operation," inter alia, of transportation and other public
utilities. The COMELEC's constitutionally delegated powers of supervision and regulation do not extend to the ownership per se of
PUVs and transport terminals, but only to the franchise or permit to operate the same.

There is a marked difference between the franchise or permit to operate transportation for the use of the public and the ownership
per se of the vehicles used for public transport. Thus, in Tatad v. Garcia, Jr.,21the Court explained that:

What private respondent owns are the rail tracks, rolling stocks like the coaches, rail stations, terminals and the power plant, not a
public utility. While a franchise is needed to operate these facilities to serve the public, they do not by themselves constitute a public
utility. What constitutes a public utility is not their ownership but their use to serve the public x x x.

The Constitution, in no uncertain terms, requires a franchise for the operation of a public utility. However, it does not require a
franchise before one can own the facilities needed to operate a public utility so long as it does not operate them to serve the public.

xxxx

In law, there is a clear distinction between the "operation" of a public utility and the ownership of the facilities and
equipment used to serve the public.

xxxx

The right to operate a public utility may exist independently and separately from the ownership of the facilities thereof.
One can own said facilities without operating them as a public utility, or conversely, one may operate a public utility
without owning the facilities used to serve the public. The devotion of property to serve the public may be done by the owner or
by the person in control thereof who may not necessarily be the owner thereof.

This dichotomy between the operation of a public utility and the ownership of the facilities used to serve the public can be very well
appreciated when we consider the transportation industry. Enfranchised airline and shipping companies may lease their aircraft and
vessels instead of owning them themselves.22 (Emphases ours)

The franchise or permit to operate transportation utilities is a privilege granted to certain persons to engage in the business of
transporting people or goods; it does not refer to the ownership of the vehicleper se. Ownership is a relation in private law by virtue
of which a thing pertaining to one person is completely subjected to his will in everything not prohibited by public law or the
concurrence with the rights of another.23 Thus, the owner of a thing has the right to enjoy and dispose of a thing, without other
limitations than those established by law.24

One such limitation established by law, as regards PUVs, is the franchise or permit to operate. However, a franchise or permit to
operate a PUV is a limitation only on certain aspects of the ownership of the vehicle pertinent to the franchise or permit granted, but
not on the totality of the rights of the owner over the vehicle. Otherwise stated, a restriction on the franchise or permit to operate
transportation utilities is necessarily a limitation on ownership, but a limitation on the rights of ownership over the PUV is not
necessarily a regulation on the franchise or permit to operate the same.

A franchise or permit to operate transportation utilities pertains to considerations affecting the operation of the PUV as such, e.g.,
safety of the passengers, routes or zones of operation, maintenance of the vehicle, of reasonable fares, rates, and other charges,
or, in certain cases, nationality.25 Thus, a government issuance, which purports to regulate a franchise or permit to operate PUVs,
must pertain to the considerations affecting its operation as such. Otherwise, it becomes a regulation or supervision not on the
franchise or permit to operate, but on the very ownership of the vehicle used for public transport.
The expression of ideas or opinion of an owner of a PUV, through the posting of election campaign materials on the vehicle, does
not affect considerations pertinent to the operation of the PUV. Surely, posting a decal expressing support for a certain candidate in
an election will not in any manner affect the operation of the PUV as such. Regulating the expression of ideas or opinion in a PUV,
through the posting of an election campaign material thereon, is not a regulation of the franchise or permit to operate, but a
regulation on the very ownership of the vehicle.

The dichotomy between the regulation of the franchise or permit to operate of a PUV and that of the very ownership thereof is better
exemplified in the case of commercial advertisements posted on the vehicle. A prohibition on the posting of commercial
advertisements on a PUV is considered a regulation on the ownership of the vehicle per se; the restriction on the enjoyment of the
ownership of the vehicle does not have any relation to its operation as a PUV.

On the other hand, prohibitions on the posting of commercial advertisements on windows of buses, because it hinders police
authorities from seeing whether the passengers inside are safe, is a regulation on the franchise or permit to operate. It has a direct
relation to the operation of the vehicle as a PUV, i.e.,the safety of the passengers.

In the same manner, the COMELEC does not have the constitutional power to regulate public transport terminals owned by private
persons. The ownership of transport terminals, even if made available for use by the public commuters, likewise remains private.
Although owners of public transport terminals may be required by local governments to obtain permits in order to operate, the permit
only pertains to circumstances affecting the operation of the transport terminal as such. The regulation of such permit to operate
should similarly be limited to circumstances affecting the operation of the transport terminal. A regulation of public transport
terminals based on extraneous circumstances, such as prohibiting the posting of election campaign materials thereon, amounts to
regulating the ownership of the transport terminal and not merely the permit to operate the same.

Accordingly, Section 7(g) items (5) and (6) of Resolution No. 9615 are not within the constitutionally delegated power of the
COMELEC to supervise or regulate the franchise or permit to operate of transportation utilities. The posting of election campaign
material on vehicles used for public transport or on transport terminals is not only a form of political expression, but also an act of
ownership - it has nothing to do with the franchise or permit to operate the PUV or transport terminal.

The rulings in National Press Club

and Osmena v. COMELEC26
find no application to this case.

The COMELEC pointed out that the issue presented in the instant case is akin to the Court's rulings in National Press
Club and Osmeña. It explained that in both cases, the Court sustained Section II(b) of R.A. No. 6646 or the Electoral Reforms Law
of 1997, which prohibits newspapers, radio broadcasting or TV stations, and other mass media from selling or giving print space or
airtime for campaign or other political purposes, except to the COMELEC, during the election campaign. The COMELEC averred
that if the legislature can empower it to impose an advertising ban on mass media, it could likewise empower it to impose a similar
ban on PUVs and transport terminals.

The Court does not agree.

The restriction imposed under Section ll(b) of R.A. No. 6646 has a direct relation to the enjoyment and utilization of the franchise or
permit to operate of newspapers, radio broadcasting and TV stations, and other mass media, which the COMELEC has the power to
regulate pursuant to Section 4, Article IX-C of the Constitution. The print space or airtime is an integral part of the franchise or permit
to operate of mass media utilities. Thus, the restriction under Section ll(b) of R.A. No. 6646 is within the confines of the
constitutionally delegated power of the COMELEC under Section 4, Article IX-C of the Constitution.

On the other hand, the prohibition on the posting of election campaign materials under Section 7(g) items (5) and (6) of Resolution
No. 9615, as already explained, does not have any relation to the franchise or permit of PUVs and transport terminals to operate as
such and, hence, is beyond the power of the COMELEC under Section 4, Article IX-C of the Constitution.

The restriction on free speech of

owners of PUVs and transport
terminals is not necessary to
further the stated governmental
interest.

Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to satisfy the fourth requisite of a valid content-neutral
regulation, i.e., the incidental restriction on freedom of expression is no greater than is essential to the furtherance of that interest.
There is absolutely no necessity to restrict the right of the owners of PUVs and transport terminals to free speech to further the
governmental interest. While ensuring equality of time, space, and opportunity to candidates is an important and substantial
governmental interest and is essential to the conduct of an orderly election, this lofty aim may be achieved sans any intrusion on the
fundamental right of expression.

First, while Resolution No. 9615 was promulgated by the COMELEC to implement the provisions of R.A. No. 9006, the prohibition
on posting of election campaign materials on PUVs and transport terminals was not provided for therein.

Second, there are more than sufficient provisions in our present election laws that would ensure equal time, space, and opportunity
to candidates in elections. Section 6 of R.A. No. 9006 mandates that "all registered parties and bona fide candidates shall have
equal access to media time and space" and outlines the guidelines to be observed in the implementation thereof, viz:
Section 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have equal access to
media time and space. The following guidelines may be amplified on by the COMELEC:

6.1 Print advertisements shall not exceed one-fourth (1/4) page in broadsheet and one-half (1/2) page in tabloids thrice a week per
newspaper, magazine or other publications, during the campaign period.

6.2 a. Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one
hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by
purchase or donation.

b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60)
minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.

For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its broadcast logs
and certificates of performance for the review and verification of the frequency, date, time and duration of advertisements broadcast
for any candidate or political party.

6.3 All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing any
political party or the candidacy of any person for public office within five (5) days after its signing. In every case, it shall be signed by
the donor, the candidate concerned or by the duly authorized representative of the political party.

6.4 No franchise or permit to operate a radio or television station shall be granted or issued, suspended or cancelled during the
election period. In all instances, the COMELEC shall supervise the use and employment of press, radio and television facilities
insofar as the placement of political advertisements is concerned to ensure that candidates are given equal opportunities under
equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in the Omnibus
Election Code and Republic Act No. 7166 on election spending.

The COMELEC shall ensure that radio or television or cable television broadcasting entities shall not allow the scheduling of any
program or permit any sponsor to manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or
including said candidate and/or political party in such program respecting, however, in all instances the right of said broadcast
entities to air accounts of significant news or news worthy events and views on matters of public interest.

6.5 All members of media, television, radio or print, shall scrupulously report and interpret the news, taking care not to suppress
essential facts nor to distort the truth by omission or improper emphasis. They shall recognize the duty to air the other side and the
duty to correct substantive errors promptly.

6.6 Any mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any
elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall
be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the
campaign period: Provided, That any media practitioner who is an official of a political party or a member of the campaign staff of a
candidate or political party shall not use his/her time or space to favor any candidate or political party.

6.7 No movie, cinematograph or documentary portraying the life or biography of a candidate shall be publicly exhibited in a theater,
television station or any public forum during the campaign period.

6.8 No movie, cinematograph or documentary portrayed by an actor or media personality who is himself a candidate shall likewise
be publicly exhibited in a theater or any public forum during the campaign period.

Section 9 of R.A. No. 9006 authorizes political parties and party-list groups and independent candidates to erect common poster
areas and candidates to post lawful election campaign materials in private places, with the consent of the owner thereof, and in
public places or property, which are allocated equitably and impartially.

Further, Section 1327 of R.A. No. 716628 provides for the authorized expenses of registered political parties and candidates for every
voter; it affords candidates equal opportunity in their election campaign by regulating the amount that should be spent for each
voter. Likewise, Section 1429 of R.A. No. 7166 requires all candidates and treasurers of registered political parties to submit a
statement of all contributions and expenditures in connection with the election. Section 14 is a post-audit measure that aims to
ensure that the candidates did not overspend in their election campaign, thereby enforcing the grant of equal opportunity to
candidates under Section 13.

A strict implementation of the foregoing provisions of law would suffice to achieve the governmental interest of ensuring equal time,
space, and opportunity for candidates in elections. There is thus no necessity of still curtailing the right to free speech of the owners
of PUVs and transport terminals by prohibiting them from posting election campaign materials on their properties.

Section 7(g) items (5) and (6) of

Resolution No. 9615 are not justified under
the captive-audience doctrine.

The COMELEC further points out that PUVs and transport terminals hold a "captive audience" - commuters who have no choice but
be subjected to the blare of political propaganda. The COMELEC further claims that while owners of privately owned PUVs and
transport terminals have a right to express their views to those who wish to listen, they have no right to force their message upon an
audience incapable of declining to receive it.

The COMELEC's claim is untenable.

The captive-audience doctrine states that when a listener cannot, as a practical matter, escape from intrusive speech, the speech
can be restricted.30 The "captive-audience" doctrine recognizes that a listener has a right not to be exposed to an unwanted
message in circumstances in which the communication cannot be avoided. 31

A regulation based on the captive-audience doctrine is in the guise of censorship, which undertakes selectively to shield the public
from some kinds of speech on the ground that they are more offensive than others. Such selective restrictions have been upheld
only when the speaker intrudes on the privacy of the home or the degree of captivity makes it either impossible or impractical for the
unwilling viewer or auditor to avoid exposure.32

In Consolidated Edison Co. v. Public Service Commission,33 the Supreme Court of the United States of America (U.S. Supreme
Court) struck down the order of New York Public Service Commission, which prohibits public utility companies from including inserts
in monthly bills discussing controversial issues of public policy. The U.S. Supreme Court held that "[t]he prohibition cannot be
justified as being necessary to avoid forcing appellant's views on a captive audience, since customers may escape exposure to
objectionable material simply by throwing the bill insert into a wastebasket." 34

Similarly, in Erznoznik v. City of Jacksonville,35 the U.S. Supreme Court nullified a city ordinance, which made it a public nuisance
and a punishable offense for a drive-in movie theater to exhibit films containing nudity, when the screen is visible from a public street
or place. The U.S. Supreme Court opined that the degree of captivity is not so great as to make it impracticable for an unwilling
viewer to avoid exposure, thus:

The Jacksonville ordinance discriminates among movies solely on the basis of content. Its effect is to deter drive-in theaters from
showing movies containing any nudity, however innocent or even educational. This discrimination cannot be justified as a means of
preventing significant intrusions on privacy. The ordinance seeks only to keep these films from being seen from public streets and
places where the offended viewer readily can avert his eyes. In short, the screen of a drive-in theater is not "so obtrusive as to
make it impossible for an unwilling individual to avoid exposure to it." x x x Thus, we conclude that the limited privacy interest
of persons on the public streets cannot justify this censorship of otherwise protected speech on the basis of its content.36 (Emphasis
ours)

Thus, a government regulation based on the captive-audience doctrine may not be justified if the supposed "captive audience" may
avoid exposure to the otherwise intrusive speech. The prohibition under Section 7(g) items (5) and (6) of Resolution No. 9615 is not
justified under the captive-audience doctrine; the commuters are not forced or compelled to read the election campaign materials
posted on PUVs and transport terminals. Nor are they incapable of declining to receive the messages contained in the posted
election campaign materials since they may simply avert their eyes if they find the same unbearably intrusive.

The COMELEC, in insisting that it has the right to restrict the posting of election campaign materials on PUVs and transport
terminals, cites Lehman v. City of Shaker Heights,37 a case decided by the U.S. Supreme Court. In Lehman, a policy of the city
government, which prohibits political advertisements on government-run buses, was upheld by the U.S. Supreme Court. The U.S.
Supreme Court held that the advertising space on the buses was not a public forum, pointing out that advertisement space on
government-run buses, "although incidental to the provision of public transportation, is a part of commercial venture."38 In the same
way that other commercial ventures need not accept every proffer of advertising from the general public, the city's transit system has
the discretion on the type of advertising that may be displayed on its vehicles.

Concurring in the judgment, Justice Douglas opined that while Lehman, a candidate for state office who sought to avail himself of
advertising space on government-run buses, "clearly has a right to express his views to those who wish to listen, he has no right to
force his message upon an audience incapable of declining to receive it."39 Justice Douglas concluded: "the right of the commuters
to be free from forced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums
for the dissemination of ideas upon this captive audience."40

The COMELEC's reliance on Lehman is utterly misplaced.

In Lehman, the political advertisement was intended for PUVs owned by the city government; the city government, as owner of the
buses, had the right to decide which type of advertisements would be placed on its buses. The U.S. Supreme Court gave primacy to
the city government's exercise of its managerial decision, viz:

Revenue earned from long-term commercial advertising could be jeopardized by a requirement that short-term candidacy or issue-
oriented advertisements be displayed on car cards. Users would be subjected to the blare of political propaganda. There could be
lurking doubts about favoritism, and sticky administrative problems might arise in parceling out limited space to eager politicians. In
these circumstances, the managerial decision to limit car card space to innocuous and less controversial commercial and
service-oriented advertising does not rise to the dignity of First Amendment violation. Were we to hold to the contrary,
display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become
Hyde Parks open to every would be pamphleteer and politician. This the Constitution does not require.41 (Emphasis ours)

Lehman actually upholds the freedom of the owner of the utility vehicles, i.e., the city government, in choosing the types of
advertisements that would be placed on its properties. In stark contrast, Section 7(g) items (5) and (6) of Resolution No. 9615 curtail
the choice of the owners of PUVs and transport terminals on the advertisements that may be posted on their properties.
Also, the city government in Lehman had the right, nay the duty, to refuse political advertisements on their buses. Considering that
what were involved were facilities owned by the city government, impartiality, or the appearance thereof, was a necessity. In the
instant case, the ownership of PUVs and transport terminals remains private; there exists no valid reason to suppress their political
views by proscribing the posting of election campaign materials on their properties.

Prohibiting owners of PUVs and transport

terminals from posting election campaign
materials violates the equal protection
clause.

Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of the free speech clause, but also of the equal protection
clause. One of the basic principles on which this government was founded is that of the equality of right, which is embodied in
Section 1, Article III of the 1987 Constitution.42 "Equal protection requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated
differently, so as to give undue favor to some and unjustly discriminate against others." 43

"The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover all the
departments of the government including the political and executive departments, and extend to all actions of a state denying equal
protection of the laws, through whatever agency or whatever guise is taken." 44

Nevertheless, the guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws to all citizens of
the state. Equality of operation of statutes does not mean their indiscriminate operation on persons merely as such, but on persons
according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that
things, which are different in fact, be treated in law as though they were the same. The equal protection clause does not forbid
discrimination as to things that are different.45

In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional norm of equal
protection, it is necessary that the four requisites of valid classification be complied with, namely: (1) it must be based upon
substantial distinctions; (2) it must be germane to the purposes of the law; (3) it must not be limited to existing conditions only; and
(4) it must apply equally to all members of the class.46

It is conceded that the classification under Section 7(g) items (5) and (6) of Resolution No. 9615 is not limited to existing conditions
and applies equally to the members of the purported class. However, the classification remains constitutionally impermissible since
it is not based on substantial distinction and is not germane to the purpose of the law.

A distinction exists between PUVs and transport terminals and private vehicles and other properties in that the former, to be
considered as such, needs to secure from the government either a franchise or a permit to operate. Nevertheless, as pointed out
earlier, the prohibition imposed under Section 7(g) items (5) and (6) of Resolution No. 9615 regulates the ownership per se of the
PUV and transport terminals; the prohibition does not in any manner affect the franchise or permit to operate of the PUV and
transport terminals.

As regards ownership, there is no substantial distinction between owners of PUVs and transport terminals and owners of private
vehicles and other properties. As already explained, the ownership of PUVs and transport terminals, though made available for use
by the public, remains private. If owners of private vehicles and other properties are allowed to express their political ideas and
opinion by posting election campaign materials on their properties, there is no cogent reason to deny the same preferred right to
owners of PUVs and transport terminals. In terms of ownership, the distinction between owners of PUVs and transport terminals and
owners of private vehicles and properties is merely superficial. Superficial differences do not make for a valid classification. 47

The fact that PUVs and transport terminals are made available for use by the public is likewise not substantial justification to set
them apart from private vehicles and other properties. Admittedly, any election campaign material that would be posted on PUVs
and transport terminals would be seen by many people. However, election campaign materials posted on private vehicles and other
places frequented by the public, e.g., commercial establishments, would also be seen by many people. Thus, there is no reason to
single out owners of PUVs and transport terminals in the prohibition against posting of election campaign materials.

Further, classifying owners of PUVs and transport terminals apart from owners of private vehicles and other properties bears no
relation to the stated purpose of Section 7(g) items (5) and (6) of Resolution No. 9615, i.e., to provide equal time, space and
opportunity to candidates in elections. To stress, PUVs and transport terminals are private properties. Indeed, the nexus between
the restriction on the freedom of expression of owners of PUVs and transport terminals and the government's interest in ensuring
equal time, space, and opportunity for candidates in elections was not established by the COMELEC.

In sum, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 violate the free speech clause; they are
content-neutral regulations, which are not within the constitutional power of the COMELEC issue and are not necessary to further
the objective of ensuring equal time, space and opportunity to the candidates. They are not only repugnant to the free speech
clause, but are also violative of the equal protection clause, as there is
no substantial distinction between owners of PUVs and transport terminals and owners of private vehicles and other properties.

On a final note, it bears stressing that the freedom to advertise one's political candidacy is clearly a significant part of our freedom of
expression. A restriction on this freedom without rhyme or reason is a violation of the most valuable feature of the democratic way of
life.48
WHEREFORE, in light of the foregoing disquisitions, the instant petition is hereby GRANTED. Section 7(g) items (5) and (6), in
relation to Section 7(f), of Resolution No. 9615 issued by the Commission on Elections are hereby declared NULL and VOID for
being repugnant to Sections 1 and 4, Article III of the 1987 Constitution.

SO ORDERED.

CITIZEN SHIP AND ALIENAGE

G.R. No. 81561 January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch XLIX) convicting
accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of
Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes, went to the
booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them
four (4) gift wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The
appellant informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Appellant filled up the
contract necessary for the transaction, writing therein his name, passport number, the date of shipment and the name and
address of the consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however, refused,
assuring her that the packages simply contained books, cigars, and gloves and were gifts to his friend in Zurich. In view of
appellant's representation, Anita Reyes no longer insisted on inspecting the packages. The four (4) packages were then
placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of
the packages before the box was sealed with masking tape, thus making the box ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes (proprietor) and
husband of Anita (Reyes), following standard operating procedure, opened the boxes for final inspection. When he
opened appellant's box, a peculiar odor emitted therefrom. His curiousity aroused, he squeezed one of the bundles
allegedly containing gloves and felt dried leaves inside. Opening one of the bundles, he pulled out a cellophane wrapper
protruding from the opening of one of the gloves. He made an opening on one of the cellophane wrappers and took
several grams of the contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory examination of the
samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau of Investigation
(NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was interviewed by the Chief of
Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes
and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the NBI agents,
opened the top flaps, removed the styro-foam and took out the cellophane wrappers from inside the gloves. Dried
marijuana leaves were found to have been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987;
Emphasis supplied).
 The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the package
contained bricks or cake-like dried marijuana leaves. The package which allegedly contained tabacalera cigars was also
opened. It turned out that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987).

The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a "Receipt"
acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being the Manila
Central Post Office, the agents requested assistance from the latter's Chief Security. On August 27, 1987, appellant, while claiming
his mail at the Central Post Office, was invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the
same day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section for laboratory examination.
It turned out that the dried leaves were marijuana flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-
11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED OBJECTS
CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT HIS RIGHTS
UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT ON HOW
THE FOUR PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his constitutional rights
against unreasonable search and seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues
that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons
or things to be seized.

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or
when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding.

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter
which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized. (Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As such, the Court may turn to
the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this
jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6
L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence obtained by
virtue of a defective search and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's
Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of its seizure. The 1973 Charter (Sec.
4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of evidence obtained
in violation of the constitutional safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37
SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145
SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).

It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by the State acting
through the medium of its law enforcers or other authorized government agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was primarily discovered
and obtained by a private person, acting in a private capacity and without the intervention and participation of State authorities.
Under the circumstances, can accused/appellant validly claim that his constitutional right against unreasonable searches and
seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation of appellant's constitutional
rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be
invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person, whether
citizen or alien, from interference by government, included in which is his residence, his papers, and other possessions. . .
.

. . . There the state, however powerful, does not as such have the access except under the circumstances above noted,
for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by
government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. . . .
(Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right against
unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous cases, its
protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the
activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as
against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested
occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the automobile to
ascertain the owner thereof found marijuana instead, without the knowledge and participation of police authorities, was declared
admissible in prosecution for illegal possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are restraints upon
the government and its agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966);
State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen — the owner of a motel in which
appellant stayed overnight and in which he left behind a travel case containing the evidence***complained of. The search
was made on the motel owner's own initiative. Because of it, he became suspicious, called the local police, informed them
of the bag's contents, and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a search by a
private citizen. Rather, the amendment only proscribes governmental action."

The contraband in the case at bar having come into possession of the Government without the latter transgressing appellant's rights
against unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the
prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the evidence later on used
in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument stands to fall on its
own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an illegal search and
seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the
forwarding agency, who made search/inspection of the packages. Said inspection was reasonable and a standard operating
procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the Bureau of Customs or the
Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI and later
summoned the agents to his place of business. Thereafter, he opened the parcel containing the rest of the shipment and entrusted
the care and custody thereof to the NBI agents. Clearly, the NBI agents made no search and seizure, much less an illegal one,
contrary to the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless search
and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having
observed that which is open, where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d
135). Where the contraband articles are identified without a trespass on the part of the arresting officer, there is not the search that
is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726
[1963]; Moore v. State, 429 SW2d 122 [1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody of the police at
the specific request of the manager and where the search was initially made by the owner there is no unreasonable search and
seizure within the constitutional meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds support in the
deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law of the land must always be
subject to protection. But protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers
the query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy.
Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual
and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What
the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder.
(Sponsorship Speech of Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986;
Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the
government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the
restraint against arbitrary and unreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of
constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and
private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and
seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against
unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of
alleged unlawful intrusion by the government.

Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present phraseology found
in the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation of the constitutional prohibition against
illegal search and seizure, it matters not whether the evidence was procured by police authorities or private individuals (Appellant's
Brief, p. 8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of the government and fundamental liberties
of the people, does not govern relationships between individuals. Moreover, it must be emphasized that the modifications introduced
in the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of arrest vis-a-vis the
responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985]
and Circular No. 12 [June 30, 1987]. The modifications introduced deviate in no manner as to whom the restriction or inhibition
against unreasonable search and seizure is directed against. The restraint stayed with the State and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the State by an individual
unjustly traduced by the exercise of sovereign authority. To agree with appellant that an act of a private individual in violation of the
Bill of Rights should also be construed as an act of the State would result in serious legal complications and an absurd interpretation
of the constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies, in pari passu,
to the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and communication.

2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite the undisputed fact that
his rights under the constitution while under custodial investigation were not observed.

Again, the contention is without merit, We have carefully examined the records of the case and found nothing to indicate, as an
"undisputed fact", that appellant was not informed of his constitutional rights or that he gave statements without the assistance of
counsel. The law enforcers testified that accused/appellant was informed of his constitutional rights. It is presumed that they have
regularly performed their duties (See. 5(m), Rule 131) and their testimonies should be given full faith and credence, there being no
evidence to the contrary. What is clear from the records, on the other hand, is that appellant refused to give any written statement
while under investigation as testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate the accused
together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional right not to give
any written statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination. As borne out by
the records, neither was there any proof by the defense that appellant gave uncounselled confession while being investigated. What
is more, we have examined the assailed judgment of the trial court and nowhere is there any reference made to the testimony of
appellant while under custodial investigation which was utilized in the finding of conviction. Appellant's second assignment of error is
therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner of the packages
which contained prohibited drugs but rather a certain Michael, a German national, whom appellant met in a pub along Ermita,
Manila: that in the course of their 30-minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for
the cost of the shipment since the German national was about to leave the country the next day (October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary to human
experience. It can easily be fabricated. An acquaintance with a complete stranger struck in half an hour could not have pushed a
man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply
with the undertaking without first ascertaining its contents. As stated by the trial court, "(a) person would not simply entrust
contraband and of considerable value at that as the marijuana flowering tops, and the cash amount of P2,000.00 to a complete
stranger like the Accused. The Accused, on the other hand, would not simply accept such undertaking to take custody of the
packages and ship the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he readily
agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-
serving evidence which deserve no weight in law and cannot be given greater evidentiary weight than the testimony of credible
witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was previously convicted of
possession of hashish by the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that the consignee of the
frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the
common experience and observation of mankind can approve as probable under the circumstances (People v. Alto, 26 SCRA 342
[1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA
327 [1983]); Castañares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even bother to ask Michael's full
name, his complete address or passport number. Furthermore, if indeed, the German national was the owner of the merchandise,
appellant should have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed
the contract as the owner and shipper thereof giving more weight to the presumption that things which a person possesses, or
exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim
otherwise.
Premises considered, we see no error committed by the trial court in rendering the assailed judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is hereby
AFFIRMED. No costs.

SO ORDERED.

[G.R. No. 117040. January 27, 2000]

RUBEN SERRANO, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and ISETANN DEPARTMENT
STORE, respondents.

DECISION

MENDOZA, J.:

This is a petition seeking review of the resolutions, dated March 30, 1994 and August 26, 1994, of the National Labor Relations
Commission (NLRC) which reversed the decision of the Labor Arbiter and dismissed petitioner Ruben Serranos complaint for illegal
dismissal and denied his motion for reconsideration. The facts are as follows:

Petitioner was hired by private respondent Isetann Department Store as a security checker to apprehend shoplifters and prevent
pilferage of merchandise.[1] Initially hired on October 4, 1984 on contractual basis, petitioner eventually became a regular employee
on April 4, 1985. In 1988, he became head of the Security Checkers Section of private respondent.[2]

Sometime in 1991, as a cost-cutting measure, private respondent decided to phase out its entire security section and engage the
services of an independent security agency. For this reason, it wrote petitioner the following memorandum: [3]

October 11, 1991

MR. RUBEN SERRANO

PRESENT

Dear Mr. Serrano,

......In view of the retrenchment program of the company, we hereby reiterate our verbal notice to you of your
termination as Security Section Head effective October 11, 1991.

......Please secure your clearance from this office.

Very truly yours,

[Sgd.] TERESITA A. VILLANUEVA

Human Resources Division Manager

The loss of his employment prompted petitioner to file a complaint on December 3, 1991 for illegal dismissal, illegal layoff, unfair
labor practice, underpayment of wages, and nonpayment of salary and overtime pay.[4]

The parties were required to submit their position papers, on the basis of which the Labor Arbiter defined the issues as follows:[5]

Whether or not there is a valid ground for the dismissal of the complainant.

Whether or not complainant is entitled to his monetary claims for underpayment of wages, nonpayment of
salaries, 13th month pay for 1991 and overtime pay.

Whether or not Respondent is guilty of unfair labor practice.

Thereafter, the case was heard. On April 30, 1993, the Labor Arbiter rendered a decision finding petitioner to have been illegally
dismissed. He ruled that private respondent failed to establish that it had retrenched its security section to prevent or minimize
losses to its business; that private respondent failed to accord due process to petitioner; that private respondent failed to use
reasonable standards in selecting employees whose employment would be terminated; that private respondent had not shown that
petitioner and other employees in the security section were so inefficient so as to justify their replacement by a security agency, or
that "cost-saving devices [such as] secret video cameras (to monitor and prevent shoplifting) and secret code tags on the
merchandise" could not have been employed; instead, the day after petitioners dismissal, private respondent employed a safety and
security supervisor with duties and functions similar to those of petitioner.

Accordingly, the Labor Arbiter ordered:[6]

WHEREFORE, above premises considered, judgment is hereby decreed:

(a)......Finding the dismissal of the complainant to be illegal and concomitantly, Respondent

is ordered to pay complainant full backwages without qualification or deduction in the
amount of P74,740.00 from the time of his dismissal until reinstatement (computed till
promulgation only) based on his monthly salary of P4,040.00/month at the time of his
termination but limited to (3) three years;

(b)......Ordering the Respondent to immediately reinstate the complainant to his former

position as security section head or to a reasonably equivalent supervisorial position in
charges of security without loss of seniority rights, privileges and benefits. This order is
immediately executory even pending appeal;

(c)......Ordering the Respondent to pay complainant unpaid wages in the amount

of P2,020.73 and proportionate 13th month pay in the amount of P3,198.30;

(d)......Ordering the Respondent to pay complainant the amount of P7,995.91, representing

10% attorneys fees based on the total judgment award of P79,959.12.

All other claims of the complainant whether monetary or otherwise is hereby dismissed for
lack of merit.

SO ORDERED.

Private respondent appealed to the NLRC which, in its resolution of March 30, 1994, reversed the decision of the Labor Arbiter and
ordered petitioner to be given separation pay equivalent to one month pay for every year of service, unpaid salary, and
proportionate 13th month pay. Petitioner filed a motion for reconsideration, but his motion was denied.

The NLRC held that the phase-out of private respondents security section and the hiring of an independent security agency
constituted an exercise by private respondent of "[a] legitimate business decision whose wisdom we do not intend to inquire into and
for which we cannot substitute our judgment"; that the distinction made by the Labor Arbiter between "retrenchment" and the
employment of "cost-saving devices" under Art. 283 of the Labor Code was insignificant because the company official who wrote the
dismissal letter apparently used the term "retrenchment" in its "plain and ordinary sense: to layoff or remove from ones job,
regardless of the reason therefor"; that the rule of "reasonable criteria" in the selection of the employees to be retrenched did not
apply because all positions in the security section had been abolished; and that the appointment of a safety and security supervisor
referred to by petitioner to prove bad faith on private respondents part was of no moment because the position had long been in
existence and was separate from petitioners position as head of the Security Checkers Section.

Hence this petition. Petitioner raises the following issue:

IS THE HIRING OF AN INDEPENDENT SECURITY AGENCY BY THE PRIVATE RESPONDENT TO

REPLACE ITS CURRENT SECURITY SECTION A VALID GROUND FOR THE DISMISSAL OF THE
EMPLOYEES CLASSED UNDER THE LATTER?[7]

Petitioner contends that abolition of private respondents Security Checkers Section and the employment of an independent security
agency do not fall under any of the authorized causes for dismissal under Art. 283 of the Labor Code.

Petitioner Laid Off for Cause

Petitioners contention has no merit. Art. 283 provides:

Closure of establishment and reduction of personnel. The employer may also terminate the employment of
any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the
 closing or cessation of operations of the establishment or undertaking unless the closing is for the purpose of
circumventing the provisions of this Title, by serving a written notice on the workers and the Department of
Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to
the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a
separation pay equivalent to at least one (1) month pay or to at least one (1) month pay for every year of
service, whichever is higher. In case of retrenchment to prevent losses and in cases of closure or cessation of
operations of establishment or undertaking not due to serious business losses or financial reverses, the
separation pay shall be equivalent to at least one (1) month pay or at least one-half (1/2) month pay for every
year of service, whichever is higher. A fraction of at least six (6) months shall be considered as one (1) whole
year.

In De Ocampo v. National Labor Relations Commission,[8] this Court upheld the termination of employment of three mechanics in a
transportation company and their replacement by a company rendering maintenance and repair services. It held:

In contracting the services of Gemac Machineries, as part of the companys cost-saving program, the services
rendered by the mechanics became redundant and superfluous, and therefore properly terminable. The
company merely exercised its business judgment or management prerogative. And in the absence of any proof
that the management abused its discretion or acted in a malicious or arbitrary manner, the court will not
interfere with the exercise of such prerogative.[9]

In Asian Alcohol Corporation v. National Labor Relations Commission, [10] the Court likewise upheld the termination of employment of
water pump tenders and their replacement by independent contractors. It ruled that an employers good faith in implementing a
redundancy program is not necessarily put in doubt by the availment of the services of an independent contractor to replace the
services of the terminated employees to promote economy and efficiency.

Indeed, as we pointed out in another case, the "[management of a company] cannot be denied the faculty of promoting efficiency
and attaining economy by a study of what units are essential for its operation. To it belongs the ultimate determination of whether
services should be performed by its personnel or contracted to outside agencies . . . [While there] should be mutual consultation,
eventually deference is to be paid to what management decides."[11] Consequently, absent proof that management acted in a
malicious or arbitrary manner, the Court will not interfere with the exercise of judgment by an employer.[12]

In the case at bar, we have only the bare assertion of petitioner that, in abolishing the security section, private respondents real
purpose was to avoid payment to the security checkers of the wage increases provided in the collective bargaining agreement
approved in 1990.[13] Such an assertion is not a sufficient basis for concluding that the termination of petitioners employment was not
a bona fide decision of management to obtain reasonable return from its investment, which is a right guaranteed to employers under
the Constitution.[14] Indeed, that the phase-out of the security section constituted a "legitimate business decision" is a factual finding
of an administrative agency which must be accorded respect and even finality by this Court since nothing can be found in the record
which fairly detracts from such finding.[15]

Accordingly, we hold that the termination of petitioners services was for an authorized cause, i.e., redundancy. Hence, pursuant to
Art. 283 of the Labor Code, petitioner should be given separation pay at the rate of one month pay for every year of service.

Sanctions for Violations of the Notice Requirement

Art. 283 also provides that to terminate the employment of an employee for any of the authorized causes the employer must serve
"a written notice on the workers and the Department of Labor and Employment at least one (1) month before the intended date
thereof." In the case at bar, petitioner was given a notice of termination on October 11, 1991. On the same day, his services were
terminated. He was thus denied his right to be given written notice before the termination of his employment, and the question is the
appropriate sanction for the violation of petitioners right.

To be sure, this is not the first time this question has arisen. In Sebuguero v. NLRC,[16] workers in a garment factory were
temporarily laid off due to the cancellation of orders and a garment embargo. The Labor Arbiter found that the workers had been
illegally dismissed and ordered the company to pay separation pay and backwages. The NLRC, on the other hand, found that this
was a case of retrenchment due to business losses and ordered the payment of separation pay without backwages. This Court
sustained the NLRCs finding. However, as the company did not comply with the 30-day written notice in Art. 283 of the Labor Code,
the Court ordered the employer to pay the workers P2,000.00 each as indemnity.

The decision followed the ruling in several cases involving dismissals which, although based on any of the just causes under Art.
282,[17] were effected without notice and hearing to the employee as required by the implementing rules. [18] As this Court said: "It is
now settled that where the dismissal of one employee is in fact for a just and valid cause and is so proven to be but he is not
accorded his right to due process, i.e., he was not furnished the twin requirements of notice and opportunity to be heard, the
dismissal shall be upheld but the employer must be sanctioned for non-compliance with the requirements of, or for failure to
observe, due process."[19]
The rule reversed a long standing policy theretofore followed that even though the dismissal is based on a just cause or the
termination of employment is for an authorized cause, the dismissal or termination is illegal if effected without notice to the
employee. The shift in doctrine took place in 1989 in Wenphil Corp. v. NLRC.[20] In announcing the change, this Court said:[21]

The Court holds that the policy of ordering the reinstatement to the service of an employee without loss of
seniority and the payment of his wages during the period of his separation until his actual reinstatement but not
exceeding three (3) years without qualification or deduction, when it appears he was not afforded due process,
although his dismissal was found to be for just and authorized cause in an appropriate proceeding in the
Ministry of Labor and Employment, should be re-examined. It will be highly prejudicial to the interests of the
employer to impose on him the services of an employee who has been shown to be guilty of the charges that
warranted his dismissal from employment. Indeed, it will demoralize the rank and file if the undeserving, if not
undesirable, remains in the service.

....

However, the petitioner must nevertheless be held to account for failure to extend to private respondent his right
to an investigation before causing his dismissal. The rule is explicit as above discussed. The dismissal of an
employee must be for just or authorized cause and after due process. Petitioner committed an infraction of the
second requirement. Thus, it must be imposed a sanction for its failure to give a formal notice and conduct an
investigation as required by law before dismissing petitioner from employment. Considering the circumstances
of this case petitioner must indemnify the private respondent the amount of P1,000.00. The measure of this
award depends on the facts of each case and the gravity of the omission committed by the employer.

The fines imposed for violations of the notice requirement have varied
from P1,000.00[22] to P2,000.00[23] to P5,000.00[24] to P10,000.00.[25]

Need for Reexamining the Wenphil Doctrine

Today, we once again consider the question of appropriate sanctions for violations of the notice requirement in light of our
experience during the last decade or so with the Wenphil doctrine. The number of cases involving dismissals without the requisite
notice to the employee, although effected for just or authorized causes, suggests that the imposition of fine for violation of the notice
requirement has not been effective in deterring violations of the notice requirement. Justice Panganiban finds the monetary
sanctions "too insignificant, too niggardly, and sometimes even too late." On the other hand, Justice Puno says there has in effect
been fostered a policy of "dismiss now, pay later" which moneyed employers find more convenient to comply with than the
requirement to serve a 30-day written notice (in the case of termination of employment for an authorized cause under Arts. 283-284)
or to give notice and hearing (in the case of dismissals for just causes under Art. 282).

For this reason, they regard any dismissal or layoff without the requisite notice to be null and void even though there are just or
authorized causes for such dismissal or layoff. Consequently, in their view, the employee concerned should be reinstated and paid
backwages.

Validity of Petitioners Layoff Not Affected by Lack of Notice

We agree with our esteemed colleagues, Justices Puno and Panganiban, that we should rethink the sanction of fine for an
employers disregard of the notice requirement. We do not agree, however, that disregard of this requirement by an employer
renders the dismissal or termination of employment null and void. Such a stance is actually a reversion to the discredited pre-
Wenphil rule of ordering an employee to be reinstated and paid backwages when it is shown that he has not been given notice and
hearing although his dismissal or layoff is later found to be for a just or authorized cause. Such rule was abandoned
in Wenphil because it is really unjust to require an employer to keep in his service one who is guilty, for example, of an attempt on
the life of the employer or the latters family, or when the employer is precisely retrenching in order to prevent losses.

The need is for a rule which, while recognizing the employees right to notice before he is dismissed or laid off, at the same time
acknowledges the right of the employer to dismiss for any of the just causes enumerated in Art. 282 or to terminate employment for
any of the authorized causes mentioned in Arts. 283-284. If the Wenphil rule imposing a fine on an employer who is found to have
dismissed an employee for cause without prior notice is deemed ineffective in deterring employer violations of the notice
requirement, the remedy is not to declare the dismissal void if there are just or valid grounds for such dismissal or if the termination
is for an authorized cause. That would be to uphold the right of the employee but deny the right of the employer to dismiss for
cause. Rather, the remedy is to order the payment to the employee of full backwages from the time of his dismissal until the court
finds that the dismissal was for a just cause. But, otherwise, his dismissal must be upheld and he should not be reinstated. This is
because his dismissal is ineffectual.

For the same reason, if an employee is laid off for any of the causes in Arts. 283-284, i.e., installation of a labor-saving device, but
the employer did not give him and the DOLE a 30-day written notice of termination in advance, then the termination of his
employment should be considered ineffectual and he should be paid backwages. However, the termination of his employment
should not be considered void but he should simply be paid separation pay as provided in Art. 283 in addition to backwages.

Justice Puno argues that an employers failure to comply with the notice requirement constitutes a denial of the employees right to
due process. Prescinding from this premise, he quotes the statement of Chief Justice Concepcion in Vda. de Cuaycong v. Vda. de
Sengbengco[26] that "acts of Congress, as well as of the Executive, can deny due process only under the pain of nullity, and judicial
proceedings suffering from the same flaw are subject to the same sanction, any statutory provision to the contrary notwithstanding."
Justice Puno concludes that the dismissal of an employee without notice and hearing, even if for a just cause, as provided in Art.
282, or for an authorized cause, as provided in Arts. 283-284, is a nullity. Hence, even if just or authorized causes exist, the
employee should be reinstated with full back pay. On the other hand, Justice Panganiban quotes from the statement in People v.
Bocar[27] that "[w]here the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is
void for lack of jurisdiction."

Violation of Notice Requirement Not a Denial of Due Process

The cases cited by both Justices Puno and Panganiban refer, however, to the denial of due process by the State, which is not the
case here. There are three reasons why, on the other hand, violation by the employer of the notice requirement cannot be
considered a denial of due process resulting in the nullity of the employees dismissal or layoff.

The first is that the Due Process Clause of the Constitution is a limitation on governmental powers. It does not apply to the exercise
of private power, such as the termination of employment under the Labor Code. This is plain from the text of Art. III, 1 of the
Constitution, viz.: "No person shall be deprived of life, liberty, or property without due process of law. . . ." The reason is simple: Only
the State has authority to take the life, liberty, or property of the individual. The purpose of the Due Process Clause is to ensure that
the exercise of this power is consistent with what are considered civilized methods.

The second reason is that notice and hearing are required under the Due Process Clause before the power of organized society are
brought to bear upon the individual. This is obviously not the case of termination of employment under Art. 283. Here the employee
is not faced with an aspect of the adversary system. The purpose for requiring a 30-day written notice before an employee is laid off
is not to afford him an opportunity to be heard on any charge against him, for there is none. The purpose rather is to give him time to
prepare for the eventual loss of his job and the DOLE an opportunity to determine whether economic causes do exist justifying the
termination of his employment.

Even in cases of dismissal under Art. 282, the purpose for the requirement of notice and hearing is not to comply with Due Process
Clause of the Constitution. The time for notice and hearing is at the trial stage. Then that is the time we speak of notice and hearing
as the essence of procedural due process. Thus, compliance by the employer with the notice requirement before he dismisses an
employee does not foreclose the right of the latter to question the legality of his dismissal. As Art. 277(b) provides, "Any decision
taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a
complaint with the regional branch of the National Labor Relations Commission."

Indeed, to contend that the notice requirement in the Labor Code is an aspect of due process is to overlook the fact that Art. 283
had its origin in Art. 302 of the Spanish Code of Commerce of 1882 which gave either party to the employer-employee relationship
the right to terminate their relationship by giving notice to the other one month in advance. In lieu of notice, an employee could be
laid off by paying him a mesada equivalent to his salary for one month.[28] This provision was repealed by Art. 2270 of the Civil
Code, which took effect on August 30, 1950. But on June 12, 1954, R.A. No. 1052, otherwise known as the Termination Pay Law,
was enacted reviving the mesada. On June 21, 1957, the law was amended by R.A. No. 1787 providing for the giving of advance
notice or the payment of compensation at the rate of one-half month for every year of service.[29]

The Termination Pay Law was held not to be a substantive law but a regulatory measure, the purpose of which was to give the
employer the opportunity to find a replacement or substitute, and the employee the equal opportunity to look for another job or
source of employment. Where the termination of employment was for a just cause, no notice was required to be given to the
employee.[30] It was only on September 4, 1981 that notice was required to be given even where the dismissal or termination of an
employee was for cause. This was made in the rules issued by the then Minister of Labor and Employment to implement B.P. Blg.
130 which amended the Labor Code. And it was still much later when the notice requirement was embodied in the law with the
amendment of Art. 277(b) by R.A. No. 6715 on March 2, 1989. It cannot be that the former regime denied due process to the
employee. Otherwise, there should now likewise be a rule that, in case an employee leaves his job without cause and without prior
notice to his employer, his act should be void instead of simply making him liable for damages.

The third reason why the notice requirement under Art. 283 can not be considered a requirement of the Due Process Clause is that
the employer cannot really be expected to be entirely an impartial judge of his own cause. This is also the case in termination of
employment for a just cause under Art. 282 (i.e., serious misconduct or willful disobedience by the employee of the lawful orders of
the employer, gross and habitual neglect of duties, fraud or willful breach of trust of the employer, commission of crime against the
employer or the latters immediate family or duly authorized representatives, or other analogous cases).

Justice Puno disputes this. He says that "statistics in the DOLE will prove that many cases have been won by employees before the
grievance committees manned by impartial judges of the company." The grievance machinery is, however, different because it is
established by agreement of the employer and the employees and composed of representatives from both sides. That is why,
in Batangas Laguna Tayabas Bus Co. v. Court of Appeals,[31] which Justice Puno cites, it was held that "Since the right of [an
employee] to his labor is in itself a property and that the labor agreement between him and [his employer] is the law between the
parties, his summary and arbitrary dismissal amounted to deprivation of his property without due process of law." But here we are
dealing with dismissals and layoffs by employers alone, without the intervention of any grievance machinery. Accordingly
in Montemayor v. Araneta University Foundation,[32] although a professor was dismissed without a hearing by his university, his
dismissal for having made homosexual advances on a student was sustained, it appearing that in the NLRC, the employee was fully
heard in his defense.

Lack of Notice Only Makes Termination Ineffectual

Not all notice requirements are requirements of due process. Some are simply part of a procedure to be followed before a right
granted to a party can be exercised. Others are simply an application of the Justinian precept, embodied in the Civil Code, [33] to act
with justice, give everyone his due, and observe honesty and good faith toward ones fellowmen. Such is the notice requirement in
Arts. 282-283. The consequence of the failure either of the employer or the employee to live up to this precept is to make him liable
in damages, not to render his act (dismissal or resignation, as the case may be) void. The measure of damages is the amount of
wages the employee should have received were it not for the termination of his employment without prior notice. If warranted,
nominal and moral damages may also be awarded.

We hold, therefore, that, with respect to Art. 283 of the Labor Code, the employers failure to comply with the notice requirement
does not constitute a denial of due process but a mere failure to observe a procedure for the termination of employment which
makes the termination of employment merely ineffectual. It is similar to the failure to observe the provisions of Art. 1592, in relation
to Art. 1191, of the Civil Code[34] in rescinding a contract for the sale of immovable property. Under these provisions, while the power
of a party to rescind a contract is implied in reciprocal obligations, nonetheless, in cases involving the sale of immovable property,
the vendor cannot exercise this power even though the vendee defaults in the payment of the price, except by bringing an action in
court or giving notice of rescission by means of a notarial demand. [35] Consequently, a notice of rescission given in the letter of an
attorney has no legal effect, and the vendee can make payment even after the due date since no valid notice of rescission has been
given.[36]

Indeed, under the Labor Code, only the absence of a just cause for the termination of employment can make the dismissal of an
employee illegal. This is clear from Art. 279 which provides:

Security of Tenure. In cases of regular employment, the employer shall not terminate the services of an
employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the
time his compensation was withheld from him up to the time of his actual reinstatement. [37]

Thus, only if the termination of employment is not for any of the causes provided by law is it illegal and, therefore, the employee
should be reinstated and paid backwages. To contend, as Justices Puno and Panganiban do, that even if the termination is for a just
or authorized cause the employee concerned should be reinstated and paid backwages would be to amend Art. 279 by adding
another ground for considering a dismissal illegal. What is more, it would ignore the fact that under Art. 285, if it is the employee who
fails to give a written notice to the employer that he is leaving the service of the latter, at least one month in advance, his failure to
comply with the legal requirement does not result in making his resignation void but only in making him liable for damages. [38] This
disparity in legal treatment, which would result from the adoption of the theory of the minority cannot simply be explained by invoking
President Ramon Magsaysays motto that "he who has less in life should have more in law." That would be a misapplication of this
noble phrase originally from Professor Thomas Reed Powell of the Harvard Law School.

Justice Panganiban cites Pepsi-Cola Bottling Co. v. NLRC,[39] in support of his view that an illegal dismissal results not only from
want of legal cause but also from the failure to observe "due process." The Pepsi-Cola case actually involved a dismissal for an
alleged loss of trust and confidence which, as found by the Court, was not proven. The dismissal was, therefore, illegal, not because
there was a denial of due process, but because the dismissal was without cause. The statement that the failure of management to
comply with the notice requirement "taints the dismissal with illegality" was merely a dictum thrown in as additional grounds for
holding the dismissal to be illegal.

Given the nature of the violation, therefore, the appropriate sanction for the failure to give notice is the payment of backwages for
the period when the employee is considered not to have been effectively dismissed or his employment terminated. The sanction is
not the payment alone of nominal damages as Justice Vitug contends.

Unjust Results of Considering Dismissals/Layoffs Without Prior Notice As Illegal

The refusal to look beyond the validity of the initial action taken by the employer to terminate employment either for an authorized or
just cause can result in an injustice to the employer. For not giving notice and hearing before dismissing an employee, who is
otherwise guilty of, say, theft, or even of an attempt against the life of the employer, an employer will be forced to keep in his employ
such guilty employee. This is unjust.
It is true the Constitution regards labor as "a primary social economic force." [40] But so does it declare that it "recognizes the
indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investment." [41] The
Constitution bids the State to "afford full protection to labor."[42] But it is equally true that "the law, in protecting the rights of the
laborer, authorizes neither oppression nor self-destruction of the employer."[43] And it is oppression to compel the employer to
continue in employment one who is guilty or to force the employer to remain in operation when it is not economically in his interest to
do so.

In sum, we hold that if in proceedings for reinstatement under Art. 283, it is shown that the termination of employment was due to an
authorized cause, then the employee concerned should not be ordered reinstated even though there is failure to comply with the 30-
day notice requirement. Instead, he must be granted separation pay in accordance with Art. 283, to wit:

In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby
shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one month for
every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or
cessation of operations of establishment or undertaking not due to serious business losses or financial
reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for
every year of service, whichever is higher. A fraction of at least six months shall be considered one (1) whole
year.

If the employees separation is without cause, instead of being given separation pay, he should be reinstated. In either case, whether
he is reinstated or only granted separation pay, he should be paid full backwages if he has been laid off without written notice at
least 30 days in advance.

On the other hand, with respect to dismissals for cause under Art. 282, if it is shown that the employee was dismissed for any of the
just causes mentioned in said Art. 282, then, in accordance with that article, he should not be reinstated. However, he must be paid
backwages from the time his employment was terminated until it is determined that the termination of employment is for a just cause
because the failure to hear him before he is dismissed renders the termination of his employment without legal effect.

WHEREFORE, the petition is GRANTED and the resolution of the National Labor Relations Commission is MODIFIED by ordering
private respondent Isetann Department Store, Inc. to pay petitioner separation pay equivalent to one (1) month pay for every year of
service, his unpaid salary, and his proportionate 13th month pay and, in addition, full backwages from the time his employment was
terminated on October 11, 1991 up to the time the decision herein becomes final. For this purpose, this case is REMANDED to the
Labor Arbiter for computation of the separation pay, backwages, and other monetary awards to petitioner.

SO ORDERED.

[G.R. No. 149454. May 28, 2004]

BANK OF THE PHILIPPINE ISLANDS, petitioner, vs. CASA MONTESSORI INTERNATIONALE and LEONARDO T.
YABUT, respondents.

[G.R. No. 149507. May 28, 2004]

CASA MONTESSORI INTERNATIONALE, petitioner, vs. BANK OF THE PHILIPPINE ISLANDS, respondent.

DECISION

PANGANIBAN, J.:

By the nature of its functions, a bank is required to take meticulous care of the deposits of its clients, who have the
right to expect high standards of integrity and performance from it. Among its obligations in furtherance thereof is knowing the
signatures of its clients. Depositors are not estopped from questioning wrongful withdrawals, even if they have failed to question
those errors in the statements sent by the bank to them for verification.
 The Case

Before us are two Petitions for Review[1] under Rule 45 of the Rules of Court, assailing the March 23, 2001 Decision[2] and
the August 17, 2001 Resolution[3] of the Court of Appeals (CA) in CA-GR CV No. 63561. The decretal portion of the assailed
Decision reads as follows:

WHEREFORE, upon the premises, the decision appealed from is AFFIRMED with the modification that defendant bank [Bank of the
Philippine Islands (BPI)] is held liable only for one-half of the value of the forged checks in the amount of P547,115.00 after
deductions subject to REIMBURSEMENT from third party defendant Yabut who is likewise ORDERED to pay the other half to
plaintiff corporation [Casa Montessori Internationale (CASA)].[4]

The assailed Resolution denied all the parties Motions for Reconsideration.

The Facts

The facts of the case are narrated by the CA as follows:

On November 8, 1982, plaintiff CASA Montessori International[5] opened Current Account No. 0291-0081-01 with defendant BPI[,]
with CASAs President Ms. Ma. Carina C. Lebron as one of its authorized signatories.

In 1991, after conducting an investigation, plaintiff discovered that nine (9) of its checks had been encashed by a certain Sonny D.
Santos since 1990 in the total amount of P782,000.00, on the following dates and amounts:

Check No. Date Amount

1. 839700 April 24, 1990 P 43,400.00

2. 839459 Nov. 2, 1990 110,500.00

3. 839609 Oct. 17, 1990 47,723.00

4. 839549 April 7, 1990 90,700.00

5. 839569 Sept. 23, 1990 52,277.00

6. 729149 Mar. 22, 1990 148,000.00

7. 729129 Mar. 16, 1990 51,015.00

8. 839684 Dec. 1, 1990 140,000.00

9. 729034 Mar. 2, 1990 98,985.00

Total -- P 782,600.00[6]

It turned out that Sonny D. Santos with account at BPIs Greenbelt Branch [was] a fictitious name used by third party defendant
Leonardo T. Yabut who worked as external auditor of CASA. Third party defendant voluntarily admitted that he forged the signature
of Ms. Lebron and encashed the checks.

The PNP Crime Laboratory conducted an examination of the nine (9) checks and concluded that the handwritings thereon
compared to the standard signature of Ms. Lebron were not written by the latter.

On March 4, 1991, plaintiff filed the herein Complaint for Collection with Damages against defendant bank praying that the
latter be ordered to reinstate the amount of P782,500.00[7] in the current and savings accounts of the plaintiff with interest at 6% per
annum.

On February 16, 1999, the RTC rendered the appealed decision in favor of the plaintiff. [8]
 Ruling of the Court of Appeals

Modifying the Decision of the Regional Trial Court (RTC), the CA apportioned the loss between BPI and CASA. The appellate
court took into account CASAs contributory negligence that resulted in the undetected forgery. It then ordered Leonardo T. Yabut to
reimburse BPI half the total amount claimed; and CASA, the other half.It also disallowed attorneys fees and moral and exemplary
damages.

Hence, these Petitions.[9]

Issues

In GR No. 149454, Petitioner BPI submits the following issues for our consideration:

I. The Honorable Court of Appeals erred in deciding this case NOT in accord with the applicable decisions of this Honorable
Court to the effect that forgery cannot be presumed; that it must be proved by clear, positive and convincing evidence; and that the
burden of proof lies on the party alleging the forgery.

II. The Honorable Court of Appeals erred in deciding this case not in accord with applicable laws, in particular the Negotiable
Instruments Law (NIL) which precludes CASA, on account of its own negligence, from asserting its forgery claim against BPI,
specially taking into account the absence of any negligence on the part of BPI. [10]

In GR No. 149507, Petitioner CASA submits the following issues:

1. The Honorable Court of Appeals erred when it ruled that there is no showing that [BPI], although negligent, acted in bad faith x x x
thus denying the prayer for the award of attorneys fees, moral damages and exemplary damages to [CASA]. The Honorable Court
also erred when it did not order [BPI] to pay interest on the amounts due to [CASA].

2. The Honorable Court of Appeals erred when it declared that [CASA] was likewise negligent in the case at bar, thus warranting its
conclusion that the loss in the amount of P547,115.00 be apportioned between [CASA] and [BPI] x x x.[11]

These issues can be narrowed down to three. First, was there forgery under the Negotiable Instruments Law (NIL)? Second,
were any of the parties negligent and therefore precluded from setting up forgery as a defense? Third, should moral and exemplary
damages, attorneys fees, and interest be awarded?

The Courts Ruling

The Petition in GR No. 149454 has no merit, while that in GR No. 149507 is partly meritorious.

First Issue:
Forged Signature Wholly Inoperative

Section 23 of the NIL provides:

Section 23. Forged signature; effect of. -- When a signature is forged or made without the authority of the person whose signature it
purports to be, it is wholly inoperative, and no right x x x to enforce payment thereof against any party thereto, can be acquired
through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the
forgery or want of authority.[12]

Under this provision, a forged signature is a real[13] or absolute defense,[14] and a person whose signature on a negotiable
instrument is forged is deemed to have never become a party thereto and to have never consented to the contract that allegedly
gave rise to it.[15]

The counterfeiting of any writing, consisting in the signing of anothers name with intent to defraud, is forgery. [16]

In the present case, we hold that there was forgery of the drawers signature on the check.
 First, both the CA[17] and the RTC[18] found that Respondent Yabut himself had voluntarily admitted, through an Affidavit, that
he had forged the drawers signature and encashed the checks.[19] He never refuted these findings.[20] That he had been coerced into
admission was not corroborated by any evidence on record.[21]

Second, the appellate and the trial courts also ruled that the PNP Crime Laboratory, after its examination of the said
checks,[22] had concluded that the handwritings thereon -- compared to the standard signature of the drawer -- were not hers.[23] This
conclusion was the same as that in the Report [24] that the PNP Crime Laboratory had earlier issued to BPI -- the drawee bank --
upon the latters request.

Indeed, we respect and affirm the RTCs factual findings, especially when affirmed by the CA, since these are supported by
substantial evidence on record.[25]

Voluntary Admission Not

Violative of Constitutional Rights

The voluntary admission of Yabut did not violate his constitutional rights (1) on custodial investigation, and (2) against self-
incrimination.

In the first place, he was not under custodial investigation. [26] His Affidavit was executed in private and before private
individuals.[27] The mantle of protection under Section 12 of Article III of the 1987 Constitution [28] covers only the period from the time
a person is taken into custody for investigation of his possible participation in the commission of a crime or from the time he is
singled out as a suspect in the commission of a crime although not yet in custody.[29]

Therefore, to fall within the ambit of Section 12, quoted above, there must be an arrest or a deprivation of freedom, with
questions propounded on him by the police authorities for the purpose of eliciting admissions, confessions, or any
information.[30] The said constitutional provision does not apply to spontaneous statements made in a voluntary manner[31] whereby
an individual orally admits to authorship of a crime. [32] What the Constitution proscribes is the compulsory or coercive disclosure of
incriminating facts.[33]

Moreover, the right against self-incrimination[34] under Section 17 of Article III[35] of the Constitution, which is ordinarily
available only in criminal prosecutions, extends to all other government proceedings -- including civil actions, legislative
investigations,[36] and administrative proceedings that possess a criminal or penal aspect [37] -- but not to private investigations done
by private individuals. Even in such government proceedings, this right may be waived, [38] provided the waiver is certain;
unequivocal; and intelligently, understandingly and willingly made.[39]

If in these government proceedings waiver is allowed, all the more is it so in private investigations. It is of no moment that no
criminal case has yet been filed against Yabut. The filing thereof is entirely up to the appropriate authorities or to the private
individuals upon whom damage has been caused. As we shall also explain later, it is not mandatory for CASA -- the plaintiff below --
to implead Yabut in the civil case before the lower court.

Under these two constitutional provisions, [t]he Bill of Rights [40] does not concern itself with the relation between a private
individual and another individual. It governs the relationship between the individual and the State. [41] Moreover, the Bill of Rights is a
charter of liberties for the individual and a limitation upon the power of the [S]tate. [42] These rights[43] are guaranteed to preclude the
slightest coercion by the State that may lead the accused to admit something false, not prevent him from freely and voluntarily telling
the truth.[44]

Yabut is not an accused here. Besides, his mere invocation of the aforesaid rights does not automatically entitle him to the
constitutional protection.[45] When he freely and voluntarily executed[46] his Affidavit, the State was not even involved. Such Affidavit
may therefore be admitted without violating his constitutional rights while under custodial investigation and against self-incrimination.

Clear, Positive and Convincing

Examination and Evidence

The examination by the PNP, though inconclusive, was nevertheless clear, positive and convincing.

Forgery cannot be presumed.[47] It must be established by clear, positive and convincing evidence.[48] Under the best evidence
rule as applied to documentary evidence like the checks in question, no secondary or substitutionary evidence may inceptively be
introduced, as the original writing itself must be produced in court.[49] But when, without bad faith on the part of the offeror, the
original checks have already been destroyed or cannot be produced in court, secondary evidence may be produced. [50] Without bad
faith on its part, CASA proved the loss or destruction of the original checks through the Affidavit of the one person who knew of that
fact[51] -- Yabut. He clearly admitted to discarding the paid checks to cover up his misdeed.[52] In such a situation, secondary
evidence like microfilm copies may be introduced in court.

The drawers signatures on the microfilm copies were compared with the standard signature. PNP Document Examiner II
Josefina de la Cruz testified on cross-examination that two different persons had written them.[53] Although no conclusive report
could be issued in the absence of the original checks, [54] she affirmed that her findings were 90 percent conclusive. [55] According to
her, even if the microfilm copies were the only basis of comparison, the differences were evident. [56] Besides, the RTC explained that
although the Report was inconclusive, no conclusive report could have been given by the PNP, anyway, in the absence of the
original checks.[57] This explanation is valid; otherwise, no such report can ever be relied upon in court.

Even with respect to documentary evidence, the best evidence rule applies only when the contents of a document -- such as
the drawers signature on a check -- is the subject of inquiry.[58] As to whether the document has been actually executed, this rule
does not apply; and testimonial as well as any other secondary evidence is admissible. [59] Carina Lebron herself, the drawers
authorized signatory, testified many times that she had never signed those checks. Her testimonial evidence is admissible; the
checks have not been actually executed. The genuineness of her handwriting is proved, not only through the courts comparison of
the questioned handwritings and admittedly genuine specimens thereof,[60] but above all by her.

The failure of CASA to produce the original checks neither gives rise to the presumption of suppression of evidence [61] nor
creates an unfavorable inference against it.[62] Such failure merely authorizes the introduction of secondary evidence[63] in the form of
microfilm copies. Of no consequence is the fact that CASA did not present the signature card containing the signatures with which
those on the checks were compared.[64] Specimens of standard signatures are not limited to such a card. Considering that it was not
produced in evidence, other documents that bear the drawers authentic signature may be resorted to. [65] Besides, that card was in
the possession of BPI -- the adverse party.

We have held that without the original document containing the allegedly forged signature, one cannot make a definitive
comparison that would establish forgery;[66]and that a comparison based on a mere reproduction of the document under controversy
cannot produce reliable results.[67] We have also said, however, that a judge cannot merely rely on a handwriting experts
testimony,[68] but should also exercise independent judgment in evaluating the authenticity of a signature under scrutiny.[69] In the
present case, both the RTC and the CA conducted independent examinations of the evidence presented and arrived at reasonable
and similar conclusions. Not only did they admit secondary evidence; they also appositely considered testimonial and other
documentary evidence in the form of the Affidavit.

The best evidence rule admits of exceptions and, as we have discussed earlier, the first of these has been met.[70] The result
of examining a questioned handwriting, even with the aid of experts and scientific instruments, may be inconclusive; [71] but it is a non
sequitur to say that such result is not clear, positive and convincing. The preponderance of evidence required in this case has been
satisfied.[72]

Second Issue:
Negligence Attributable to BPI Alone

Having established the forgery of the drawers signature, BPI -- the drawee -- erred in making payments by virtue thereof. The
forged signatures are wholly inoperative, and CASA -- the drawer whose authorized signatures do not appear on the negotiable
instruments -- cannot be held liable thereon. Neither is the latter precluded from setting up forgery as a real defense.

Clear Negligence
in Allowing Payment
Under a Forged Signature

We have repeatedly emphasized that, since the banking business is impressed with public interest, of paramount importance
thereto is the trust and confidence of the public in general. Consequently, the highest degree of diligence[73] is expected,[74] and high
standards of integrity and performance are even required, of it. [75] By the nature of its functions, a bank is under obligation to treat
the accounts of its depositors with meticulous care,[76] always having in mind the fiduciary nature of their relationship.[77]

BPI contends that it has a signature verification procedure, in which checks are honored only when the signatures therein are
verified to be the same with or similar to the specimen signatures on the signature cards. Nonetheless, it still failed to detect the
eight instances of forgery. Its negligence consisted in the omission of that degree of diligence required [78] of a bank. It cannot now
feign ignorance, for very early on we have already ruled that a bank is bound to know the signatures of its customers; and if it pays a
forged check, it must be considered as making the payment out of its own funds, and cannot ordinarily charge the amount so paid to
the account of the depositor whose name was forged.[79] In fact, BPI was the same bank involved when we issued this ruling seventy
years ago.

Neither Waiver nor Estoppel

Results from Failure to
Report Error in Bank Statement
 The monthly statements issued by BPI to its clients contain a notice worded as follows: If no error is reported in ten (10) days,
account will be correct.[80] Such notice cannot be considered a waiver, even if CASA failed to report the error. Neither is it estopped
from questioning the mistake after the lapse of the ten-day period.

This notice is a simple confirmation[81] or circularization -- in accounting parlance -- that requests client-depositors to affirm the
accuracy of items recorded by the banks.[82] Its purpose is to obtain from the depositors a direct corroboration of the correctness of
their account balances with their respective banks. [83] Internal or external auditors of a bank use it as a basic audit procedure [84] --
the results of which its client-depositors are neither interested in nor privy to -- to test the details of transactions and balances in the
banks records.[85] Evidential matter obtained from independent sources outside a bank only serves to provide greater assurance of
reliability[86] than that obtained solely within it for purposes of an audit of its own financial statements, not those of its client-
depositors.

Furthermore, there is always the audit risk that errors would not be detected[87] for various reasons. One, materiality is a
consideration in audit planning;[88] and two, the information obtained from such a substantive test is merely presumptive and cannot
be the basis of a valid waiver.[89] BPI has no right to impose a condition unilaterally and thereafter consider failure to meet such
condition a waiver. Neither may CASA renounce a right[90] it has never possessed.[91]

Every right has subjects -- active and passive. While the active subject is entitled to demand its enforcement, the passive one
is duty-bound to suffer such enforcement.[92]

On the one hand, BPI could not have been an active subject, because it could not have demanded from CASA a response to
its notice. Besides, the notice was a measly request worded as follows: Please examine x x x and report x x x. [93] CASA, on the
other hand, could not have been a passive subject, either, because it had no obligation to respond. It could -- as it did -- choose not
to respond.

Estoppel precludes individuals from denying or asserting, by their own deed or representation, anything contrary to that
established as the truth, in legal contemplation.[94] Our rules on evidence even make a juris et de jure presumption[95] that whenever
one has, by ones own act or omission, intentionally and deliberately led another to believe a particular thing to be true and to act
upon that belief, one cannot -- in any litigation arising from such act or omission -- be permitted to falsify that supposed truth.[96]

In the instant case, CASA never made any deed or representation that misled BPI. The formers omission, if any, may only be
deemed an innocent mistake oblivious to the procedures and consequences of periodic audits. Since its conduct was due to such
ignorance founded upon an innocent mistake, estoppel will not arise. [97] A person who has no knowledge of or consent to a
transaction may not be estopped by it.[98] Estoppel cannot be sustained by mere argument or doubtful inference x x x.[99] CASA is not
barred from questioning BPIs error even after the lapse of the period given in the notice.

Loss Borne by
Proximate Source
of Negligence

For allowing payment[100] on the checks to a wrongful and fictitious payee, BPI -- the drawee bank -- becomes liable to its
depositor-drawer. Since the encashing bank is one of its branches, [101] BPI can easily go after it and hold it liable for
reimbursement.[102] It may not debit the drawers account[103] and is not entitled to indemnification from the drawer.[104] In both law and
equity, when one of two innocent persons must suffer by the wrongful act of a third person, the loss must be borne by the one
whose negligence was the proximate cause of the loss or who put it into the power of the third person to perpetrate the wrong. [105]

Proximate cause is determined by the facts of the case.[106] It is that cause which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.[107]

Pursuant to its prime duty to ascertain well the genuineness of the signatures of its client-depositors on checks being
encashed, BPI is expected to use reasonable business prudence. [108] In the performance of that obligation, it is bound by its internal
banking rules and regulations that form part of the contract it enters into with its depositors.[109]

Unfortunately, it failed in that regard. First, Yabut was able to open a bank account in one of its branches without
privity;[110] that is, without the proper verification of his corresponding identification papers. Second, BPI was unable to discover early
on not only this irregularity, but also the marked differences in the signatures on the checks and those on the signature card. Third,
despite the examination procedures it conducted, the Central Verification Unit [111] of the bank even passed off these evidently
different signatures as genuine. Without exercising the required prudence on its part, BPI accepted and encashed the eight checks
presented to it. As a result, it proximately contributed to the fraud and should be held primarily liable [112] for the negligence of its
officers or agents when acting within the course and scope of their employment.[113] It must bear the loss.

CASA Not Negligent

in Its Financial Affairs
 In this jurisdiction, the negligence of the party invoking forgery is recognized as an exception [114] to the general rule that a
forged signature is wholly inoperative.[115]Contrary to BPIs claim, however, we do not find CASA negligent in handling its financial
affairs. CASA, we stress, is not precluded from setting up forgery as a real defense.

Role of Independent Auditor

The major purpose of an independent audit is to investigate and determine objectively if the financial statements submitted for
audit by a corporation have been prepared in accordance with the appropriate financial reporting practices[116] of private entities. The
relationship that arises therefrom is both legal and moral.[117] It begins with the execution of the engagement letter[118] that embodies
the terms and conditions of the audit and ends with the fulfilled expectation of the auditors ethical [119] and competent performance in
all aspects of the audit.[120]

The financial statements are representations of the client; but it is the auditor who has the responsibility for the accuracy in the
recording of data that underlies their preparation, their form of presentation, and the opinion[121] expressed therein.[122] The auditor
does not assume the role of employee or of management in the clients conduct of operations [123] and is never under the control or
supervision[124] of the client.

Yabut was an independent auditor[125] hired by CASA. He handled its monthly bank reconciliations and had access to all
relevant documents and checkbooks.[126] In him was reposed the clients[127] trust and confidence[128] that he would perform precisely
those functions and apply the appropriate procedures in accordance with generally accepted auditing standards. [129] Yet he did not
meet these expectations. Nothing could be more horrible to a client than to discover later on that the person tasked to detect fraud
was the same one who perpetrated it.

Cash Balances
Open to Manipulation

It is a non sequitur to say that the person who receives the monthly bank statements, together with the cancelled checks and
other debit/credit memoranda, shall examine the contents and give notice of any discrepancies within a reasonable time. Awareness
is not equipollent with discernment.

Besides, in the internal accounting control system prudently installed by CASA,[130] it was Yabut who should examine those
documents in order to prepare the bank reconciliations.[131] He owned his working papers,[132] and his output consisted of his opinion
as well as the clients financial statements and accompanying notes thereto.CASA had every right to rely solely upon his output --
based on the terms of the audit engagement -- and could thus be unwittingly duped into believing that everything was in
order. Besides, [g]ood faith is always presumed and it is the burden of the party claiming otherwise to adduce clear and convincing
evidence to the contrary.[133]

Moreover, there was a time gap between the period covered by the bank statement and the date of its actual receipt. Lebron
personally received the December 1990 bank statement only in January 1991[134] -- when she was also informed of the forgery for
the first time, after which she immediately requested a stop payment order. She cannot be faulted for the late detection of the forged
December check. After all, the bank account with BPI was not personal but corporate, and she could not be expected to monitor
closely all its finances. A preschool teacher charged with molding the minds of the youth cannot be burdened with the intricacies or
complexities of corporate existence.

There is also a cutoff period such that checks issued during a given month, but not presented for payment within that period,
will not be reflected therein.[135] An experienced auditor with intent to defraud can easily conceal any devious scheme from a client
unwary of the accounting processes involved by manipulating the cash balances on record -- especially when bank transactions are
numerous, large and frequent. CASA could only be blamed, if at all, for its unintelligent choice in the selection and appointment of
an auditor -- a fault that is not tantamount to negligence.

Negligence is not presumed, but proven by whoever alleges it.[136] Its mere existence is not sufficient without proof that it, and
no other cause,[137] has given rise to damages.[138] In addition, this fault is common to, if not prevalent among, small and medium-
sized business entities, thus leading the Professional Regulation Commission (PRC), through the Board of Accountancy (BOA), to
require today not only accreditation for the practice of public accountancy, [139] but also the registration of firms in the practice
thereof. In fact, among the attachments now required upon registration are the code of good governance [140] and a sworn statement
on adequate and effective training.[141]

The missing checks were certainly reported by the bookkeeper[142] to the accountant[143] -- her immediate supervisor -- and by
the latter to the auditor. However, both the accountant and the auditor, for reasons known only to them, assured the bookkeeper that
there were no irregularities.

The bookkeeper[144] who had exclusive custody of the checkbooks [145] did not have to go directly to CASAs president or to
BPI. Although she rightfully reported the matter, neither an investigation was conducted nor a resolution of it was arrived at,
precisely because the person at the top of the helm was the culprit. The vouchers, invoices and check stubs in support of all check
disbursements could be concealed or fabricated -- even in collusion -- and management would still have no way to verify its cash
accountabilities.

Clearly then, Yabut was able to perpetrate the wrongful act through no fault of CASA. If auditors may be held liable for breach
of contract and negligence,[146] with all the more reason may they be charged with the perpetration of fraud upon an unsuspecting
client. CASA had the discretion to pursue BPI alone under the NIL, by reason of expediency or munificence or both. Money paid
under a mistake may rightfully be recovered,[147] and under such terms as the injured party may choose.

Third Issue:
Award of Monetary Claims

Moral Damages Denied

We deny CASAs claim for moral damages.

In the absence of a wrongful act or omission,[148] or of fraud or bad faith,[149] moral damages cannot be awarded.[150] The
adverse result of an action does not per se make the action wrongful, or the party liable for it. One may err, but error alone is not a
ground for granting such damages.[151] While no proof of pecuniary loss is necessary therefor -- with the amount to be awarded left
to the courts discretion[152] -- the claimant must nonetheless satisfactorily prove the existence of its factual basis[153] and causal
relation[154] to the claimants act or omission.[155]

Regrettably, in this case CASA was unable to identify the particular instance -- enumerated in the Civil Code -- upon which its
claim for moral damages is predicated.[156] Neither bad faith nor negligence so gross that it amounts to malice[157] can be imputed to
BPI. Bad faith, under the law, does not simply connote bad judgment or negligence;[158] it imports a dishonest purpose or some
moral obliquity and conscious doing of a wrong, a breach of a known duty through some motive or interest or ill will that partakes of
the nature of fraud.[159]

As a general rule, a corporation -- being an artificial person without feelings, emotions and senses, and having existence only
in legal contemplation -- is not entitled to moral damages,[160] because it cannot experience physical suffering and mental
anguish.[161] However, for breach of the fiduciary duty required of a bank, a corporate client may claim such damages when its good
reputation is besmirched by such breach, and social humiliation results therefrom. [162] CASA was unable to prove that BPI had
debased the good reputation of,[163] and consequently caused incalculable embarrassment to, the former. CASAs mere allegation or
supposition thereof, without any sufficient evidence on record,[164] is not enough.

Exemplary Damages Also Denied

We also deny CASAs claim for exemplary damages.

Imposed by way of correction[165] for the public good,[166] exemplary damages cannot be recovered as a matter of right.[167] As
we have said earlier, there is no bad faith on the part of BPI for paying the checks of CASA upon forged signatures. Therefore, the
former cannot be said to have acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. [168] The latter, having no
right to moral damages, cannot demand exemplary damages.[169]

Attorneys Fees Granted

Although it is a sound policy not to set a premium on the right to litigate,[170] we find that CASA is entitled to reasonable
attorneys fees based on factual, legal, and equitable justification. [171]

When the act or omission of the defendant has compelled the plaintiff to incur expenses to protect the latters interest,[172] or
where the court deems it just and equitable,[173] attorneys fees may be recovered. In the present case, BPI persistently denied the
claim of CASA under the NIL to recredit the latters account for the value of the forged checks. This denial constrained CASA to incur
expenses and exert effort for more than ten years in order to protect its corporate interest in its bank account.Besides, we have
already cautioned BPI on a similar act of negligence it had committed seventy years ago, but it has remained unrelenting. Therefore,
the Court deems it just and equitable to grant ten percent (10%)[174] of the total value adjudged to CASA as attorneys fees.

Interest Allowed
 For the failure of BPI to pay CASA upon demand and for compelling the latter to resort to the courts to obtain payment, legal
interest may be adjudicated at the discretion of the Court, the same to run from the filing[175] of the Complaint.[176] Since a court
judgment is not a loan or a forbearance of recovery, the legal interest shall be at six percent (6%) per annum.[177] If the obligation
consists in the payment of a sum of money, and the debtor incurs in delay, the indemnity for damages, there being no stipulation to
the contrary, shall be the payment of x x x legal interest, which is six percent per annum.[178] The actual base for its computation
shall be on the amount finally adjudged,[179] compounded[180] annually to make up for the cost of money[181] already lost to CASA.

Moreover, the failure of the CA to award interest does not prevent us from granting it upon damages awarded for breach of
contract.[182] Because BPI evidently breached its contract of deposit with CASA, we award interest in addition to the total amount
adjudged. Under Section 196 of the NIL, any case not provided for shall be governed by the provisions of existing legislation or, in
default thereof, by the rules of the law merchant.[183] Damages are not provided for in the NIL. Thus, we resort to the Code of
Commerce and the Civil Code. Under Article 2 of the Code of Commerce, acts of commerce shall be governed by its provisions and,
in their absence, by the usages of commerce generally observed in each place; and in the absence of both rules, by those of the
civil law.[184] This law being silent, we look at Article 18 of the Civil Code, which states: In matters which are governed by the Code of
Commerce and special laws, their deficiency shall be supplied by its provisions. A perusal of these three statutes unmistakably
shows that the award of interest under our civil law is justified.

WHEREFORE, the Petition in GR No. 149454 is hereby DENIED, and that in GR No. 149507 PARTLY GRANTED. The
assailed Decision of the Court of Appeals is AFFIRMED with modification: BPI is held liable for P547,115, the total value of the
forged checks less the amount already recovered by CASA from Leonardo T. Yabut, plus interest at the legal rate of six percent
(6%) per annum -- compounded annually, from the filing of the complaint until paid in full; and attorneys fees of ten percent (10%)
thereof, subject to reimbursement from Respondent Yabut for the entire amount, excepting attorneys fees. Let a copy of this
Decision be furnished the Board of Accountancy of the Professional Regulation Commission for such action as it may deem
appropriate against Respondent Yabut. No costs.

SO ORDERED.

G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.

x-----------------------x

G.R. No. 221698-700

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ Respondents.

DECISION

PEREZ, J.:

Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of Court with extremely urgent
application for an ex parte issuance of temporary restraining order/status quo ante order and/or writ of preliminary injunction
assailing the following: (1) 1 December 2015 Resolution of the Commission on Elections (COMELEC) Second Division; (2) 23
December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015 Resolution of the
COMELEC First Division; and ( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. 15-
007 (DC) and SPA No. 15-139 (DC) for having been issued without jurisdiction or with grave abuse of discretion amounting to lack
or excess of jurisdiction.

The Facts

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in the Parish Church of Jaro, Iloilo
by a certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care and custody over petitioner was passed on by Edgardo
to his relatives, Emiliano Militar (Emiliano) and his wife. Three days after, 6 September 1968, Emiliano reported and registered
petitioner as a foundling with the Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and Certificate of
Live Birth, the petitioner was given the name "Mary Grace Natividad Contreras Militar." 1

When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe
(a.k.a. Susan Roces) filed a petition for her adoption with the Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the
trial court granted their petition and ordered that petitioner's name be changed from "Mary Grace Natividad Contreras Militar" to
"Mary Grace Natividad Sonora Poe." Although necessary notations were made by OCR-Iloilo on petitioner's foundling certificate
reflecting the court decreed adoption,2 the petitioner's adoptive mother discovered only sometime in the second half of 2005 that the
lawyer who handled petitioner's adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's
new name and the name of her adoptive parents. 3 Without delay, petitioner's mother executed an affidavit attesting to the lawyer's
omission which she submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a new Certificate of Live Birth in the name of
Mary Grace Natividad Sonora Poe.4

Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local COMELEC Office in San Juan
City. On 13 December 1986, she received her COMELEC Voter's Identification Card for Precinct No. 196 in Greenhills, San Juan,
Metro Manila.5

On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F9272876 by the Department of Foreign Affairs
(DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed her Philippine passport and respectively secured Philippine
Passport Nos. L881511 and DD156616.7

Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the Philippines 8 but she opted to
continue her studies abroad and left for the United States of America (U.S.) in 1988. Petitioner graduated in 1991 from Boston
College in Chestnuts Hill, Massachusetts where she earned her Bachelor of Arts degree in Political Studies.9

On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen of both the Philippines and the
U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous of being with her husband who was then based in the U.S., the
couple flew back to the U.S. two days after the wedding ceremony or on 29 July 1991. 11

While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April 1992. 12 Her two daughters Hanna
13
MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in the Philippines on 10 July 1998 and 5 June 2004, respectively.

14
On 18 October 2001, petitioner became a naturalized American citizen. She obtained U.S. Passport No. 017037793 on 19
December 2001. 15

On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her father's candidacy for President in
the May 2004 elections. It was during this time that she gave birth to her youngest daughter Anika. She returned to the U.S. with her
two daughters on 8 July 2004. 16

After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines upon learning of her father's
deteriorating medical condition. 17 Her father slipped into a coma and eventually expired. The petitioner stayed in the country until 3
February 2005 to take care of her father's funeral arrangements as well as to assist in the settlement of his estate.18

According to the petitioner, the untimely demise of her father was a severe blow to her entire family. In her earnest desire to be with
her grieving mother, the petitioner and her husband decided to move and reside permanently in the Philippines sometime in the first
quarter of 2005.19 The couple began preparing for their resettlement including notification of their children's schools that they will be
transferring to Philippine schools for the next semester;20coordination with property movers for the relocation of their household
goods, furniture and cars from the U.S. to the Philippines;21 and inquiry with Philippine authorities as to the proper procedure to be
followed in bringing their pet dog into the country.22 As early as 2004, the petitioner already quit her job in the U.S.23

Finally, petitioner came home to the Philippines on 24 May 200524 and without delay, secured a Tax Identification Number from the
Bureau of Internal Revenue. Her three (3) children immediately followed25 while her husband was forced to stay in the U.S. to
complete pending projects as well as to arrange the sale of their family home there. 26

The petitioner and her children briefly stayed at her mother's place until she and her husband purchased a condominium unit with a
parking slot at One Wilson Place Condominium in San Juan City in the second half of 2005. 27 The corresponding Condominium
Certificates of Title covering the unit and parking slot were issued by the Register of Deeds of San Juan City to petitioner and her
husband on 20 February 2006.28 Meanwhile, her children of school age began attending Philippine private schools.

On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some of the family's remaining
household belongings.29 She travelled back to the Philippines on 11 March 2006.30

In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's change and abandonment of their
address in the U.S.31 The family home was eventually sold on 27 April 2006.32 Petitioner's husband resigned from his job in the U.S.
in April 2006, arrived in the country on 4 May 2006 and started working for a major Philippine company in July 2006. 33

In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills, Quezon City where they built their
family home34 and to this day, is where the couple and their children have been residing.35 A Transfer Certificate of Title covering
said property was issued in the couple's name by the Register of Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to Republic Act (R.A.) No. 9225 or
the Citizenship Retention and Re-acquisition Act of 2003.36 Under the same Act, she filed with the Bureau of Immigration (BI) a
sworn petition to reacquire Philippine citizenship together with petitions for derivative citizenship on behalf of her three minor
children on 10 July 2006.37 As can be gathered from its 18 July 2006 Order, the BI acted favorably on petitioner's petitions and
declared that she is deemed to have reacquired her Philippine citizenship while her children are considered as citizens of the
Philippines.38 Consequently, the BI issued Identification Certificates (ICs) in petitioner's name and in the names of her three (3)
children. 39

Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006.40 She also secured from the
DFA a new Philippine Passport bearing the No. XX4731999.41 This passport was renewed on 18 March 2014 and she was issued
Philippine Passport No. EC0588861 by the DFA.42

On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie and Television Review and
Classification Board (MTRCB).43 Before assuming her post, petitioner executed an "Affidavit of Renunciation of Allegiance to the
United States of America and Renunciation of American Citizenship" before a notary public in Pasig City on 20 October 2010, 44 in
satisfaction of the legal requisites stated in Section 5 of R.A. No. 9225. 45 The following day, 21 October 2010 petitioner submitted
the said affidavit to the BI46 and took her oath of office as Chairperson of the MTRCB. 47 From then on, petitioner stopped using her
American passport.48

On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an "Oath/Affirmation of Renunciation
of Nationality of the United States."49 On that day, she accomplished a sworn questionnaire before the U.S. Vice Consul wherein
she stated that she had taken her oath as MTRCB Chairperson on 21 October 2010 with the intent, among others, of relinquishing
her American citizenship.50 In the same questionnaire, the petitioner stated that she had resided outside of the U.S., specifically in
the Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to present. 51

On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the United States" effective 21
October 2010.52

On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for Senator for the 2013 Elections
wherein she answered "6 years and 6 months" to the question "Period of residence in the Philippines before May 13,
2013."53 Petitioner obtained the highest number of votes and was proclaimed Senator on 16 May 2013. 54

55
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530.

On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. 56 In her COC, the petitioner declared
that she is a natural-born citizen and that her residence in the Philippines up to the day before 9 May 2016 would be ten (10) years
and eleven (11) months counted from 24 May 2005.57 The petitioner attached to her COC an "Affidavit Affirming Renunciation of
U.S.A. Citizenship" subscribed and sworn to before a notary public in Quezon City on 14 October 2015. 58

Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several COMELEC cases against her
which were the subject of these consolidated cases.

Origin of Petition for Certiorari in G.R. No. 221697

A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to deny due course or cancel said
COC which was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second Division.59She is convinced that the
COMELEC has jurisdiction over her petition.60 Essentially, Elamparo's contention is that petitioner committed material
misrepresentation when she stated in her COC that she is a natural-born Filipino citizen and that she is a resident of the Philippines
for at least ten (10) years and eleven (11) months up to the day before the 9 May 2016 Elections.61

On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born Filipino on account of the fact
that she was a foundling.62 Elamparo claimed that international law does not confer natural-born status and Filipino citizenship on
foundlings.63 Following this line of reasoning, petitioner is not qualified to apply for reacquisition of Filipino citizenship under R.A. No.
9225 for she is not a natural-born Filipino citizen to begin with.64Even assuming arguendo that petitioner was a natural-born Filipino,
she is deemed to have lost that status when she became a naturalized American citizen.65 According to Elamparo, natural-born
citizenship must be continuous from birth.66

On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn declaration she made in her
2012 COC for Senator wherein she indicated that she had resided in the country for only six ( 6) years and six ( 6) months as of May
2013 Elections. Elamparo likewise insisted that assuming arguendo that petitioner is qualified to regain her natural-born status
under R.A. No. 9225, she still fell short of the ten-year residency requirement of the Constitution as her residence could only be
counted at the earliest from July 2006, when she reacquired Philippine citizenship under the said Act. Also on the assumption that
petitioner is qualified to reacquire lost Philippine Citizenship, Elamparo is of the belief that she failed to reestablish her domicile in
the Philippines.67
Petitioner seasonably filed her Answer wherein she countered that:

(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a petition for quo warranto which
could only be filed if Grace Poe wins in the Presidential elections, and that the Department of Justice (DOJ) has primary
jurisdiction to revoke the BI's July 18, 2006 Order;

(2) the petition failed to state a cause of action because it did not contain allegations which, if hypothetically admitted,
would make false the statement in her COC that she is a natural-born Filipino citizen nor was there any allegation that
there was a willful or deliberate intent to misrepresent on her part;

(3) she did not make any material misrepresentation in the COC regarding her citizenship and residency qualifications for:

a. the 1934 Constitutional Convention deliberations show that foundlings were considered citizens;

b. foundlings are presumed under international law to have been born of citizens of the place where they are
found;

c. she reacquired her natural-born Philippine citizenship under the provisions of R.A. No. 9225;

d. she executed a sworn renunciation of her American citizenship prior to the filing of her COC for President in
the May 9, 2016 Elections and that the same is in full force and effect and has not been withdrawn or recanted;

e. the burden was on Elamparo in proving that she did not possess natural-born status;

f. residence is a matter of evidence and that she reestablished her domicile in the Philippines as early as May
24, 2005;

g. she could reestablish residence even before she reacquired natural-born citizenship under R.A. No. 9225;

h. statement regarding the period of residence in her 2012 COC for Senator was an honest mistake, not binding
and should give way to evidence on her true date of reacquisition of domicile;

i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people to decide a purely
political question, that is, should she serve as the country's next leader. 68

After the parties submitted their respective Memoranda, the petition was deemed submitted for resolution.

On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that petitioner's COC, filed for the purpose
of running for the President of the Republic of the Philippines in the 9 May 2016 National and Local Elections, contained material
representations which are false. The fallo of the aforesaid Resolution reads:

WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course to or Cancel Certificate of
Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy for President of the Republic of the Philippines in the
May 9, 2016 National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe Llamanzares is
hereby CANCELLED.69

Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the COMELEC En Banc resolved in its
23 December 2015 Resolution by denying the same.70

Origin of Petition for Certiorari in G.R. Nos. 221698-700

This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P. Contreras (Contreras) and
Amado D. Valdez (Valdez) against petitioner before the COMELEC which were consolidated and raffled to its First Division.

In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure, 71 docketed as SPA No. 15-002 (DC),
Tatad alleged that petitioner lacks the requisite residency and citizenship to qualify her for the Presidency. 72

Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of unknown parentage, particularly
foundlings, cannot be considered natural-born Filipino citizens since blood relationship is determinative of natural-born
status.73 Tatad invoked the rule of statutory construction that what is not included is excluded. He averred that the fact that
foundlings were not expressly included in the categories of citizens in the 193 5 Constitution is indicative of the framers' intent to
exclude them.74 Therefore, the burden lies on petitioner to prove that she is a natural-born citizen.75

Neither can petitioner seek refuge under international conventions or treaties to support her claim that foundlings have a
nationality.76 According to Tatad, international conventions and treaties are not self-executory and that local legislations are
necessary in order to give effect to treaty obligations assumed by the Philippines.77 He also stressed that there is no standard state
practice that automatically confers natural-born status to foundlings.78

Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire Philippine citizenship under
R.A. No. 9225 because it only applies to former natural-born citizens and petitioner was not as she was a foundling. 79

Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10) year residency
requirement.80 Tatad opined that petitioner acquired her domicile in Quezon City only from the time she renounced her American
citizenship which was sometime in 2010 or 2011.81 Additionally, Tatad questioned petitioner's lack of intention to abandon her U.S.
domicile as evinced by the fact that her husband stayed thereat and her frequent trips to the U.S. 82

In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No. 15-139 (DC), Valdez alleged that
her repatriation under R.A. No. 9225 did not bestow upon her the status of a natural-born citizen.83 He advanced the view that
former natural-born citizens who are repatriated under the said Act reacquires only their Philippine citizenship and will not revert to
their original status as natural-born citizens.84

He further argued that petitioner's own admission in her COC for Senator that she had only been a resident of the Philippines for at
least six (6) years and six (6) months prior to the 13 May 2013 Elections operates against her. Valdez rejected petitioner's claim that
she could have validly reestablished her domicile in the Philippines prior to her reacquisition of Philippine citizenship. In effect, his
position was that petitioner did not meet the ten (10) year residency requirement for President.

Unlike the previous COMELEC cases filed against petitioner, Contreras' petition, 85 docketed as SPA No. 15-007 (DC), limited the
attack to the residency issue. He claimed that petitioner's 2015 COC for President should be cancelled on the ground that she did
not possess the ten-year period of residency required for said candidacy and that she made false entry in her COC when she stated
that she is a legal resident of the Philippines for ten (10) years and eleven (11) months by 9 May 2016. 86 Contreras contended that
the reckoning period for computing petitioner's residency in the Philippines should be from 18 July 2006, the date when her petition
to reacquire Philippine citizenship was approved by the BI.87 He asserted that petitioner's physical presence in the country before 18
July 2006 could not be valid evidence of reacquisition of her Philippine domicile since she was then living here as an American
citizen and as such, she was governed by the Philippine immigration laws.88

In her defense, petitioner raised the following arguments:

First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition did not invoke grounds proper for
a disqualification case as enumerated under Sections 12 and 68 of the Omnibus Election Code. 89 Instead, Tatad completely relied
on the alleged lack of residency and natural-born status of petitioner which are not among the recognized grounds for the
disqualification of a candidate to an elective office.90

Second, the petitions filed against her are basically petitions for quo warranto as they focus on establishing her ineligibility for the
Presidency.91 A petition for quo warranto falls within the exclusive jurisdiction of the Presidential Electoral Tribunal (PET) and not the
COMELEC.92

Third, the burden to prove that she is not a natural-born Filipino citizen is on the respondents.93 Otherwise stated, she has a
presumption in her favor that she is a natural-born citizen of this country.

Fourth, customary international law dictates that foundlings are entitled to a nationality and are presumed to be citizens of the
country where they are found.94 Consequently, the petitioner is considered as a natural-born citizen of the Philippines.95

Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No. 9225 or the right to reacquire
her natural-born status.96 Moreover, the official acts of the Philippine Government enjoy the presumption of regularity, to wit: the
issuance of the 18 July 2006 Order of the BI declaring her as natural-born citizen, her appointment as MTRCB Chair and the
issuance of the decree of adoption of San Juan RTC.97 She believed that all these acts reinforced her position that she is a natural-
born citizen of the Philippines.98

Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her domicile of choice in the Philippines as
demonstrated by her children's resettlement and schooling in the country, purchase of a condominium unit in San Juan City and the
construction of their family home in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even before she renounced her
American citizenship as long as the three determinants for a change of domicile are complied with. 100She reasoned out that there
was no requirement that renunciation of foreign citizenship is a prerequisite for the acquisition of a new domicile of choice.101

Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was a mistake made in good
faith.102

In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled that petitioner is not a natural-born citizen,
that she failed to complete the ten (10) year residency requirement, and that she committed material misrepresentation in her COC
when she declared therein that she has been a resident of the Philippines for a period of ten (10) years and eleven (11) months as
of the day of the elections on 9 May 2016. The COMELEC First Division concluded that she is not qualified for the elective position
of President of the Republic of the Philippines. The dispositive portion of said Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the Petitions and cancel
the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of President of
the Republic of the Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.

Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's Resolution. On 23 December 2015,
the COMELEC En Banc issued a Resolution denying petitioner's motion for reconsideration.

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions for certiorari with urgent prayer for the
issuance of an ex parte temporary restraining order/status quo ante order and/or writ of preliminary injunction. On 28 December
2015, temporary restraining orders were issued by the Court enjoining the COMELEC and its representatives from implementing the
assailed COMELEC Resolutions until further orders from the Court. The Court also ordered the consolidation of the two petitions
filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments were held in these cases.

The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and SET ASIDE the:

1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares.

2. Resolution dated 11 December 2015, rendered through its First Division, in the consolidated cases SPA No. 15-002
(DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No.
15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent.

3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1 December 2015 Resolution of the
Second Division.

4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11 December 2015 Resolution of the
First Division.

The procedure and the conclusions from which the questioned Resolutions emanated are tainted with grave abuse of discretion
amounting to lack of jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in the 9 May 2016 National Elections.

The issue before the COMELEC is whether or not the COC of petitioner should be denied due course or cancelled "on the exclusive
ground" that she made in the certificate a false material representation. The exclusivity of the ground should hedge in the discretion
of the COMELEC and restrain it from going into the issue of the qualifications of the candidate for the position, if, as in this case,
such issue is yet undecided or undetermined by the proper authority. The COMELEC cannot itself, in the same cancellation case,
decide the qualification or lack thereof of the candidate.

We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C, Section 2:

Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of
all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective
 municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided
by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and
barangay offices shall be final, executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of
the number and location of polling places, appointment of election officials and inspectors, and registration of
voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly,
honest, peaceful, and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other
requirements, must present their platform or program of government; and accredit citizens' arms of the
Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to
achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or
which are supported by any foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations,
coalitions, or candidates related to elections constitute interference in national affairs, and, when accepted, shall
be an additional ground for the cancellation of their registration with the Commission, in addition to other
penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters;
investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of
places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds,
offenses, malpractices, and nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of
any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall.

Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI, Section 17 of the same basic law
stating that:

The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice,
and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be
chosen on the basis of proportional representation from the political parties and the parties or organizations registered
under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

or of the last paragraph of Article VII, Section 4 which provides that:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-President, Senators and the
Members of the House of Representatives was made clear by the Constitution. There is no such provision for candidates for these
positions.

Can the COMELEC be such judge?

The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections,104 which was affirmatively cited in
the En Banc decision in Fermin v. COMELEC105 is our guide. The citation in Fermin reads:
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC amended its
rules on February 15, 1993 so as to provide in Rule 25 § 1, the following:

Grounds for disqualification. - Any candidate who does not possess all the qualifications of a candidate as
provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such an act is
equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the exercise of its rule-making
power under Art. IX, A, §6 of the Constitution, cannot do it. It is noteworthy that the Constitution withholds from the COMELEC even
the power to decide cases involving the right to vote, which essentially involves an inquiry into qualifications based on age,
residence and citizenship of voters. [Art. IX, C, §2(3)]

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is contrary to the
evident intention of the law. For not only in their grounds but also in their consequences are proceedings for "disqualification"
different from those for a declaration of "ineligibility." "Disqualification" proceedings, as already stated, are based on grounds
specified in § 12 and §68 of the Omnibus Election Code and in §40 of the Local Government Code and are for the purpose of
barring an individual from becoming a candidate or from continuing as a candidate for public office. In a word, their purpose is
to eliminate a candidate from the race either from the start or during its progress. "Ineligibility," on the other hand, refers to the lack
of the qualifications prescribed in the Constitution or the statutes for holding public office and the purpose of the proceedings for
declaration of ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does not imply that he is not disqualified from
becoming a candidate or continuing as a candidate for a public office and vice versa. We have this sort of dichotomy in our
Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in §2 of the Law does not imply that he does not
suffer from any of [the] disqualifications provided in §4.

Before we get derailed by the distinction as to grounds and the consequences of the respective proceedings, the importance of the
opinion is in its statement that "the lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a
mere rule". Justice Mendoza lectured in Romualdez-Marcos that:

Three reasons may be cited to explain the absence of an authorized proceeding for determining before election the qualifications of
a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his eligibility for the
office. In contrast, whether an individual should be disqualified as a candidate for acts constituting election offenses (e.g., vote
buying, over spending, commission of prohibited acts) is a prejudicial question which should be determined lest he wins because of
the very acts for which his disqualification is being sought. That is why it is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has been voted for, the votes in his favor will not be counted; and if for some
reason he has been voted for and he has won, either he will not be proclaimed or his proclamation will be set aside.

Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this case, his domicile, may take a
long time to make, extending beyond the beginning of the term of the office. This is amply demonstrated in the companion case
(G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence was still pending in the
COMELEC even after the elections of May 8, 1995. This is contrary to the summary character proceedings relating to certificates of
candidacy. That is why the law makes the receipt of certificates of candidacy a ministerial duty of the COMELEC and its
officers. The law is satisfied if candidates state in their certificates of candidacy that they are eligible for the position which they seek
to fill, leaving the determination of their qualifications to be made after the election and only in the event they are elected. Only in
cases involving charges of false representations made in certificates of candidacy is the COMELEC given jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice President, Senators and
members of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to preserve the prerogatives of the House of
Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of the election,
returns and qualifications of members of Congress of the President and Vice President, as the case may be. 106

To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to the amendment through
COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15 February1993 version of Rule 25, which states
that:

Grounds for disqualification. -Any candidate who does not possess all the qualifications of a candidate as provided for by the
Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from
continuing as a candidate.107

was in the 2012 rendition, drastically changed to:

Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final decision of a competent court, guilty of,
or found by the Commission to be suffering from any disqualification provided by law or the Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of Candidacy or Petition to
Declare a Candidate as a Nuisance Candidate, or a combination thereof, shall be summarily dismissed.

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized proceeding for determining before
election the qualifications of candidate. Such that, as presently required, to disqualify a candidate there must be a declaration by a
final judgment of a competent court that the candidate sought to be disqualified "is guilty of or found by the Commission to be
suffering from any disqualification provided by law or the Constitution."

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to the other. Both do not allow, are
not authorizations, are not vestment of jurisdiction, for the COMELEC to determine the qualification of a candidate. The facts of
qualification must beforehand be established in a prior proceeding before an authority properly vested with jurisdiction. The prior
determination of qualification may be by statute, by executive order or by a judgment of a competent court or tribunal.

If a candidate cannot be disqualified without a prior finding that he or she is suffering from a disqualification "provided by law or the
Constitution," neither can the certificate of candidacy be cancelled or denied due course on grounds of false representations
regarding his or her qualifications, without a prior authoritative finding that he or she is not qualified, such prior authority being the
necessary measure by which the falsity of the representation can be found. The only exception that can be conceded are self-
evident facts of unquestioned or unquestionable veracity and judicial confessions. Such are, anyway, bases equivalent to prior
decisions against which the falsity of representation can be determined.

The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals with, as in this case, alleged false
representations regarding the candidate's citizenship and residence, forced the COMELEC to rule essentially that since
foundlings108 are not mentioned in the enumeration of citizens under the 1935 Constitution, 109 they then cannot be citizens. As the
COMELEC stated in oral arguments, when petitioner admitted that she is a foundling, she said it all. This borders on bigotry. Oddly,
in an effort at tolerance, the COMELEC, after saying that it cannot rule that herein petitioner possesses blood relationship with a
Filipino citizen when "it is certain that such relationship is indemonstrable," proceeded to say that "she now has the burden to
present evidence to prove her natural filiation with a Filipino parent."

The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.

At the outset, it must be noted that presumptions regarding paternity is neither unknown nor unaccepted in Philippine Law. The
Family Code of the Philippines has a whole chapter on Paternity and Filiation. 110 That said, there is more than sufficient evider1ce
that petitioner has Filipino parents and is therefore a natural-born Filipino. Parenthetically, the burden of proof was on private
respondents to show that petitioner is not a Filipino citizen. The private respondents should have shown that both of petitioner's
parents were aliens. Her admission that she is a foundling did not shift the burden to her because such status did not exclude the
possibility that her parents were Filipinos, especially as in this case where there is a high probability, if not certainty, that her parents
are Filipinos.

The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether such parents are Filipinos.
Under Section 4, Rule 128:

Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to induce belief in its existence or
no-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the
probability of improbability of the fact in issue.

The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA) 111 that from 1965 to 1975, the total
number of foreigners born in the Philippines was 15,986 while the total number of Filipinos born in the country was 10,558,278. The
statistical probability that any child born in the Philippines in that decade is natural-born Filipino was 99.83%. For her part, petitioner
presented census statistics for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there were 962,532 Filipinos and
4,734 foreigners in the province; 99.62% of the population were Filipinos. In 1970, the figures were 1,162,669 Filipinos and 5,304
foreigners, or 99.55%. Also presented were figures for the child producing ages (15-49). In 1960, there were 230,528 female
Filipinos as against 730 female foreigners or 99.68%. In the same year, there were 210,349 Filipino males and 886 male aliens,
or 99.58%. In 1970, there were 270,299 Filipino females versus 1, 190 female aliens, or 99.56%. That same year, there were
245,740 Filipino males as against only 1,165 male aliens or 99.53%. COMELEC did not dispute these figures. Notably,
Commissioner Arthur Lim admitted, during the oral arguments, that at the time petitioner was found in 1968, the majority of the
population in Iloilo was Filipino.112

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was abandoned as an infant in a Roman
Catholic Church in Iloilo City.1âwphi1 She also has typical Filipino features: height, flat nasal bridge, straight black hair, almond
shaped eyes and an oval face.
There is a disputable presumption that things have happened according to the ordinary course of nature and the ordinary habits of
life.113 All of the foregoing evidence, that a person with typical Filipino features is abandoned in Catholic Church in a municipality
where the population of the Philippines is overwhelmingly Filipinos such that there would be more than a 99% chance that a child
born in the province would be a Filipino, would indicate more than ample probability if not statistical certainty, that petitioner's
parents are Filipinos. That probability and the evidence on which it is based are admissible under Rule 128, Section 4 of the
Revised Rules on Evidence.

To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words of the Solicitor General:

Second. It is contrary to common sense because foreigners do not come to the Philippines so they can get pregnant and leave their
newborn babies behind. We do not face a situation where the probability is such that every foundling would have a 50% chance of
being a Filipino and a 50% chance of being a foreigner. We need to frame our questions properly. What are the chances that the
parents of anyone born in the Philippines would be foreigners? Almost zero. What are the chances that the parents of anyone born
in the Philippines would be Filipinos? 99.9%.

According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were 1,766,046 children born in the
Philippines to Filipino parents, as opposed to 1,301 children in the Philippines of foreign parents. Thus, for that sample period, the
ratio of non-Filipino children to natural born Filipino children is 1:1357. This means that the statistical probability that any child born
in the Philippines would be a natural born Filipino is 99.93%.

From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total number of Filipinos born in the
Philippines is 15,558,278. For this period, the ratio of non-Filipino children is 1:661. This means that the statistical probability that
any child born in the Philippines on that decade would be a natural born Filipino is 99.83%.

We can invite statisticians and social anthropologists to crunch the numbers for us, but I am confident that the statistical probability
that a child born in the Philippines would be a natural born Filipino will not be affected by whether or not the parents are known. If at
all, the likelihood that a foundling would have a Filipino parent might even be higher than 99.9%. Filipinos abandon their children out
of poverty or perhaps, shame. We do not imagine foreigners abandoning their children here in the Philippines thinking those infants
would have better economic opportunities or believing that this country is a tropical paradise suitable for raising abandoned children.
I certainly doubt whether a foreign couple has ever considered their child excess baggage that is best left behind.

To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a theoretical chance that one
among the thousands of these foundlings might be the child of not just one, but two, foreigners is downright discriminatory, irrational,
and unjust. It just doesn't make any sense. Given the statistical certainty - 99.9% - that any child born in the Philippines would be a
natural born citizen, a decision denying foundlings such status is effectively a denial of their birthright. There is no reason why this
Honorable Court should use an improbable hypothetical to sacrifice the fundamental political rights of an entire class of human
beings. Your Honor, constitutional interpretation and the use of common sense are not separate disciplines.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's enumeration is silent as to
foundlings, there is no restrictive language which would definitely exclude foundlings either. Because of silence and ambiguity in the
enumeration with respect to foundlings, there is a need to examine the intent of the framers. In Nitafan v. Commissioner of Internal
Revenue,114 this Court held that:

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.115

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 Constitutional Convention show that the
framers intended foundlings to be covered by the enumeration. The following exchange is recorded:

Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The natural children of a foreign father
and a Filipino mother not recognized by the father.

xxxx

President:
[We] would like to request a clarification from the proponent of the amendment. The gentleman refers to natural children or to any
kind of illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or illegitimate children of unknown
parents.

Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino, that is, I refer to the Spanish Code
wherein all children of unknown parentage born in Spanish territory are considered Spaniards, because the presumption is that a
child of unknown parentage is the son of a Spaniard. This may be applied in the Philippines in that a child of unknown parentage
born in the Philippines is deemed to be Filipino, and there is no need ...

Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.

Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.

Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of unknown parentage."

Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not unknown.

President:
Does the gentleman accept the amendment or not?

Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a Filipina with a foreigner who does not
recognize the child. Their parentage is not unknown and I think those of overseas Filipino mother and father [whom the latter] does
not recognize, should also be considered as Filipinos.

President:
The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr. Briones.

Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?

Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the constitution need [not] refer to them. By
international law the principle that children or people born in a country of unknown parents are citizens in this nation is recognized,
and it is not necessary to include a provision on the subject exhaustively. 116

Though the Rafols amendment was not carried out, it was not because there was any objection to the notion that persons of
"unknown parentage" are not citizens but only because their number was not enough to merit specific mention. Such was the
account,117 cited by petitioner, of delegate and constitution law author Jose Aruego who said:

During the debates on this provision, Delegate Rafols presented an amendment to include as Filipino citizens the
illegitimate children with a foreign father of a mother who was a citizen of the Philippines, and also foundlings; but this
amendment was defeated primarily because the Convention believed that the cases, being too few to warrant the
inclusion of a provision in the Constitution to apply to them, should be governed by statutory legislation. Moreover, it was
believed that the rules of international law were already clear to the effect that illegitimate children followed the citizenship
of the mother, and that foundlings followed the nationality of the place where they were found, thereby making
unnecessary the inclusion in the Constitution of the proposed amendment.

This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral Arguments:

We all know that the Rafols proposal was rejected. But note that what was declined was the proposal for a textual and explicit
recognition of foundlings as Filipinos. And so, the way to explain the constitutional silence is by saying that it was the view of
Montinola and Roxas which prevailed that there is no more need to expressly declare foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a constitution can constitutionalize
rules based on assumptions that are imperfect or even wrong. They can even overturn existing rules. This is basic. What matters
here is that Montinola and Roxas were able to convince their colleagues in the convention that there is no more need to expressly
declare foundlings as Filipinos because they are already impliedly so recognized.

In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the avoidance of redundancy. The
policy is clear: it is to recognize foundlings, as a class, as Filipinos under Art. IV, Section 1 (3) of the 1935 Constitution. This
inclusive policy is carried over into the 1973 and 1987 Constitution. It is appropriate to invoke a famous scholar as he was
paraphrased by Chief Justice Fernando: the constitution is not silently silent, it is silently vocal. 118

The Solicitor General makes the further point that the framers "worked to create a just and humane society," that "they were
reasonable patriots and that it would be unfair to impute upon them a discriminatory intent against foundlings." He exhorts that,
given the grave implications of the argument that foundlings are not natural-born Filipinos, the Court must search the records of the
1935, 1973 and 1987 Constitutions "for an express intention to deny foundlings the status of Filipinos. The burden is on those who
wish to use the constitution to discriminate against foundlings to show that the constitution really intended to take this path to the
dark side and inflict this across the board marginalization."

We find no such intent or language permitting discrimination against foundlings. On the contrary, all three Constitutions guarantee
the basic right to equal protection of the laws. All exhort the State to render social justice. Of special consideration are several
provisions in the present charter: Article II, Section 11 which provides that the "State values the dignity of every human person and
guarantees full respect for human rights," Article XIII, Section 1 which mandates Congress to "give highest priority to the enactment
of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities
x x x" and Article XV, Section 3 which requires the State to defend the "right of children to assistance, including proper care and
nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their
development." Certainly, these provisions contradict an intent to discriminate against foundlings on account of their unfortunate
status.

Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not provide that adoption confers
citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the first place to be adopted. The most basic of such laws is
Article 15 of the Civil Code which provides that "[l]aws relating to family rights, duties, status, conditions, legal capacity of persons
are binding on citizens of the Philippines even though living abroad." Adoption deals with status, and a Philippine adoption court will
have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic,119 a child left by an unidentified mother was sought to
be adopted by aliens. This Court said:

In this connection, it should be noted that this is a proceedings in rem, which no court may entertain unless it has jurisdiction, not
only over the subject matter of the case and over the parties, but also over the res, which is the personal status of Baby Rose as
well as that of petitioners herein. Our Civil Code (Art. 15) adheres to the theory that jurisdiction over the status of a natural person is
determined by the latter's nationality. Pursuant to this theory, we have jurisdiction over the status of Baby Rose, she being a citizen
of the Philippines, but not over the status of the petitioners, who are foreigners. 120 (Underlining supplied)

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the Inter-Country Adoption of
Filipino Children and For Other Purposes" (otherwise known as the "Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled
"An Act Establishing the Rules and Policies on the Adoption of Filipino Children and For Other Purposes" (otherwise known as the
Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino
children" and include foundlings as among Filipino children who may be adopted.

It has been argued that the process to determine that the child is a foundling leading to the issuance of a foundling certificate under
these laws and the issuance of said certificate are acts to acquire or perfect Philippine citizenship which make the foundling a
naturalized Filipino at best. This is erroneous. Under Article IV, Section 2 "Natural-born citizens are those who are citizens of the
Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." In the first place, "having to
perform an act" means that the act must be personally done by the citizen. In this instance, the determination of foundling status is
done not by the child but by the authorities.121 Secondly, the object of the process is the determination of the whereabouts of the
parents, not the citizenship of the child. Lastly, the process is certainly not analogous to naturalization proceedings to acquire
Philippine citizenship, or the election of such citizenship by one born of an alien father and a Filipino mother under the 1935
Constitution, which is an act to perfect it.

In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as evidenced by a Foundling
Certificate issued in her favor.122 The Decree of Adoption issued on 13 May 1974, which approved petitioner's adoption by Jesusa
Sonora Poe and Ronald Allan Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her "foundling parents,"
hence effectively affirming petitioner's status as a foundling.123

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international law can become part of the
sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local legislation. 124 On the other hand, generally
accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land
even if they do not derive from treaty obligations. Generally accepted principles of international law include international custom as
evidence of a general practice accepted as law, and general principles of law recognized by civilized nations. 125 International
customary rules are accepted as binding as a result from the combination of two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as the opinionjuris sive necessitates (opinion as to law
or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of
law requiring it.126 "General principles of law recognized by civilized nations" are principles "established by a process of reasoning"
or judicial logic, based on principles which are "basic to legal systems generally," 127 such as "general principles of equity, i.e., the
general principles of fairness and justice," and the "general principle against discrimination" which is embodied in the "Universal
Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on
the Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination in Education, the Convention (No. 111)
Concerning Discrimination in Respect of Employment and Occupation." 128 These are the same core principles which underlie the
Philippine Constitution itself, as embodied in the due process and equal protection clauses of the Bill of Rights. 129

Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the generally accepted principles of
international law and binding on the State.130 Article 15 thereof states:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of the UNCRC imposes the
following obligations on our country:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality
and as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the
relevant international instruments in this field, in particular where the child would otherwise be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 24 thereof provide for
the right of every child "to acquire a nationality:"

Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or
birth, the right, to such measures of protection as are required by his status as a minor, on the part of his family, society and the
State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant nationality from birth and ensure that
no child is stateless. This grant of nationality must be at the time of birth, and it cannot be accomplished by the application of our
present naturalization laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which require the applicant to be
at least eighteen (18) years old.

The principles found in two conventions, while yet unratified by the Philippines, are generally accepted principles of international
law. The first is Article 14 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws under
which a foundling is presumed to have the "nationality of the country of birth," to wit:

Article 14

A child whose parents are both unknown shall have the nationality of the country of birth. If the child's parentage is established, its
nationality shall be determined by the rules applicable in cases where the parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was found.
(Underlining supplied)
The second is the principle that a foundling is presumed born of citizens of the country where he is found, contained in Article 2 of
the 1961 United Nations Convention on the Reduction of Statelessness:

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been
born within the territory of parents possessing the nationality of that State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the Reduction of Statelessness
does not mean that their principles are not binding. While the Philippines is not a party to the 1930 Hague Convention, it is a
signatory to the Universal Declaration on Human Rights, Article 15(1) ofwhich131effectively affirms Article 14 of the 1930 Hague
Convention. Article 2 of the 1961 "United Nations Convention on the Reduction of Statelessness" merely "gives effect" to Article
15(1) of the UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had not signed or ratified the "International
Convention for the Protection of All Persons from Enforced Disappearance." Yet, we ruled that the proscription against enforced
disappearances in the said convention was nonetheless binding as a "generally accepted principle of international law." Razon v.
Tagitis is likewise notable for declaring the ban as a generally accepted principle of international law although the convention had
been ratified by only sixteen states and had not even come into force and which needed the ratification of a minimum of twenty
states. Additionally, as petitioner points out, the Court was content with the practice of international and regional state organs,
regional state practice in Latin America, and State Practice in the United States.

Another case where the number of ratifying countries was not determinative is Mijares v. Ranada, 134 where only four countries had
"either ratified or acceded to"135 the 1966 "Convention on the Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters" when the case was decided in 2005. The Court also pointed out that that nine member countries of the
European Common Market had acceded to the Judgments Convention. The Court also cited U.S. laws and jurisprudence on
recognition of foreign judgments. In all, only the practices of fourteen countries were considered and yet, there was pronouncement
that recognition of foreign judgments was widespread practice.

Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted principles of international law"
are based not only on international custom, but also on "general principles of law recognized by civilized nations," as the phrase is
understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against discrimination, which are
fundamental principles underlying the Bill of Rights and which are "basic to legal systems generally," 136 support the notion that the
right against enforced disappearances and the recognition of foreign judgments, were correctly considered as "generally accepted
principles of international law" under the incorporation clause.

Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America, and Europe have passed legislation
recognizing foundlings as its citizen. Forty-two (42) of those countries follow the jus sanguinis regime. Of the sixty, only thirty-three
(33) are parties to the 1961 Convention on Statelessness; twenty-six (26) are not signatories to the Convention. Also, the Chief
Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189 countries surveyed (or 87.83%), foundlings are
recognized as citizens. These circumstances, including the practice of jus sanguinis countries, show that it is a generally accepted
principle of international law to presume foundlings as having been born of nationals of the country in which the foundling is found.

Current legislation reveals the adherence of the Philippines to this generally accepted principle of international law. In particular,
R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly refer to "Filipino children." In all of them, foundlings are
among the Filipino children who could be adopted. Likewise, it has been pointed that the DFA issues passports to foundlings.
Passports are by law, issued only to citizens. This shows that even the executive department, acting through the DFA, considers
foundlings as Philippine citizens.

Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on Statelessness is rational and
reasonable and consistent with the jus sanguinis regime in our Constitution. The presumption of natural-born citizenship of
foundlings stems from the presumption that their parents are nationals of the Philippines. As the empirical data provided by the PSA
show, that presumption is at more than 99% and is a virtual certainty.

In sum, all of the international law conventions and instruments on the matter of nationality of foundlings were designed to address
the plight of a defenseless class which suffers from a misfortune not of their own making. We cannot be restrictive as to their
application if we are a country which calls itself civilized and a member of the community of nations. The Solicitor General's warning
in his opening statement is relevant:

.... the total effect of those documents is to signify to this Honorable Court that those treaties and conventions were drafted because
the world community is concerned that the situation of foundlings renders them legally invisible. It would be tragically ironic if this
Honorable Court ended up using the international instruments which seek to protect and uplift foundlings a tool to deny them
political status or to accord them second-class citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions of R.A. No. 9225 did not result in the
reacquisition of natural-born citizenship. The COMELEC reasoned that since the applicant must perform an act, what is reacquired
is not "natural-born" citizenship but only plain "Philippine citizenship."

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation statutes in general and of R.A. No.
9225 in particular.

In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as follows:

Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship
will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen
before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino.

R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They include Sobejana-Condon v.
COMELEC141 where we described it as an "abbreviated repatriation process that restores one's Filipino citizenship x x x." Also
included is Parreno v. Commission on Audit,142 which cited Tabasa v. Court of Appeals,143where we said that "[t]he repatriation of
the former Filipino will allow him to recover his natural-born citizenship. Parreno v. Commission on Audit144 is categorical that "if
petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will ... recover his natural-born citizenship."

The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that natural-born citizenship must
begin at birth and remain uninterrupted and continuous from birth." R.A. No. 9225 was obviously passed in line with Congress' sole
prerogative to determine how citizenship may be lost or reacquired. Congress saw it fit to decree that natural-born citizenship may
be reacquired even if it had been once lost. It is not for the COMELEC to disagree with the Congress' determination.

More importantly, COMELEC's position that natural-born status must be continuous was already rejected in Bengson III v.
HRET145 where the phrase "from birth" was clarified to mean at the time of birth: "A person who at the time of his birth, is a citizen of
a particular country, is a natural-born citizen thereof." Neither is "repatriation" an act to "acquire or perfect" one's citizenship.
In Bengson III v. HRET, this Court pointed out that there are only two types of citizens under the 1987 Constitution: natural-born
citizen and naturalized, and that there is no third category for repatriated citizens:

It is apparent from the enumeration of who are citizens under the present Constitution that there are only two classes of citizens: (1)
those who are natural-born and (2) those who are naturalized in accordance with law. A citizen who is not a naturalized Filipino, ie.,
did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino.
Noteworthy is the absence in said enumeration of a separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-born or naturalized
depending on the reasons for the loss of their citizenship and the mode prescribed by the applicable law for the reacquisition
thereof. As respondent Cruz was not required by law to go through naturalization proceedings in order to reacquire his citizenship,
he is perforce a natural-born Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House
of Representatives.146

The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may always revisit a doctrine, a
new rule reversing standing doctrine cannot be retroactively applied. In Morales v. Court of Appeals and Jejomar Erwin S. Binay,
Jr.,147 where we decreed reversed the condonation doctrine, we cautioned that it "should be prospective in application for the reason
that judicial decisions applying or interpreting the laws of the Constitution, until reversed, shall form part of the legal system of the
Philippines." This Court also said that "while the future may ultimately uncover a doctrine's error, it should be, as a general rule,
recognized as good law prior to its abandonment. Consequently, the people's reliance thereupon should be respected." 148

Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood when she put in the spaces for
"born to" in her application for repatriation under R.A. No. 9225 the names of her adoptive parents, and this misled the BI to
presume that she was a natural-born Filipino. It has been contended that the data required were the names of her biological parents
which are precisely unknown.

This position disregards one important fact - petitioner was legally adopted. One of the effects of adoption is "to sever all legal ties
between the biological parents and the adoptee, except when the biological parent is the spouse of the adoptee." 149 Under R.A. No.
8552, petitioner was also entitled to an amended birth certificate "attesting to the fact that the adoptee is the child of the adopter(s)"
and which certificate "shall not bear any notation that it is an amended issue." 150 That law also requires that "[a]ll records, books,
and papers relating to the adoption cases in the files of the court, the Department [of Social Welfare and Development], or any other
agency or institution participating in the adoption proceedings shall be kept strictly confidential." 151 The law therefore allows
petitioner to state that her adoptive parents were her birth parents as that was what would be stated in her birth certificate anyway.
And given the policy of strict confidentiality of adoption records, petitioner was not obligated to disclose that she was an adoptee.

Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same case for cancellation of COC, it
resorted to opinionatedness which is, moreover, erroneous. The whole process undertaken by COMELEC is wrapped in grave
abuse of discretion.
 On Residence

The tainted process was repeated in disposing of the issue of whether or not petitioner committed false material representation
when she stated in her COC that she has before and until 9 May 2016 been a resident of the Philippines for ten (10) years and
eleven (11) months.

Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the day before the 2016
elections, is true.

The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines before the day of the elections.
Since the forthcoming elections will be held on 9 May 2016, petitioner must have been a resident of the Philippines prior to 9 May
2016 for ten (10) years. In answer to the requested information of "Period of Residence in the Philippines up to the day before May
09, 2016," she put in "10 years 11 months" which according to her pleadings in these cases corresponds to a beginning date of 25
May 2005 when she returned for good from the U.S.

When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines. There are three requisites to
acquire a new domicile: 1. Residence or bodily presence in a new locality; 2. an intention to remain there; and 3. an intention to
abandon the old domicile.152 To successfully effect a change of domicile, one must demonstrate an actual removal or an actual
change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts
which correspond with the purpose. In other words, there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence
must be voluntary; and the residence at the place chosen for the new domicile must be actual. 153

Petitioner presented voluminous evidence showing that she and her family abandoned their U.S. domicile and relocated to the
Philippines for good. These evidence include petitioner's former U.S. passport showing her arrival on 24 May 2005 and her return to
the Philippines every time she travelled abroad; e-mail correspondences starting in March 2005 to September 2006 with a freight
company to arrange for the shipment of their household items weighing about 28,000 pounds to the Philippines; e-mail with the
Philippine Bureau of Animal Industry inquiring how to ship their dog to the Philippines; school records of her children showing
enrollment in Philippine schools starting June 2005 and for succeeding years; tax identification card for petitioner issued on July
2005; titles for condominium and parking slot issued in February 2006 and their corresponding tax declarations issued in April 2006;
receipts dated 23 February 2005 from the Salvation Army in the U.S. acknowledging donation of items from petitioner's family;
March 2006 e-mail to the U.S. Postal Service confirming request for change of address; final statement from the First American Title
Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire submitted to the U.S.
Embassy where petitioner indicated that she had been a Philippine resident since May 2005; affidavit from Jesusa Sonora Poe
(attesting to the return of petitioner on 24 May 2005 and that she and her family stayed with affiant until the condominium was
purchased); and Affidavit from petitioner's husband (confirming that the spouses jointly decided to relocate to the Philippines in 2005
and that he stayed behind in the U.S. only to finish some work and to sell the family home).

The foregoing evidence were undisputed and the facts were even listed by the COMELEC, particularly in its Resolution in the Tatad,
Contreras and Valdez cases.

However, the COMELEC refused to consider that petitioner's domicile had been timely changed as of 24 May 2005. At the oral
arguments, COMELEC Commissioner Arthur Lim conceded the presence of the first two requisites, namely, physical presence
and animus manendi, but maintained there was no animus non-revertendi.154 The COMELEC disregarded the import of all the
evidence presented by petitioner on the basis of the position that the earliest date that petitioner could have started residence in the
Philippines was in July 2006 when her application under R.A. No. 9225 was approved by the BI. In this regard, COMELEC relied
on Coquilla v. COMELEC,155 Japzon v. COMELEC156 and Caballero v. COMELEC. 157 During the oral arguments, the private
respondents also added Reyes v. COMELEC.158 Respondents contend that these cases decree that the stay of an alien former
Filipino cannot be counted until he/she obtains a permanent resident visa or reacquires Philippine citizenship, a visa-free entry
under a balikbayan stamp being insufficient. Since petitioner was still an American (without any resident visa) until her reacquisition
of citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot be counted.

But as the petitioner pointed out, the facts in these four cases are very different from her situation. In Coquilla v. COMELEC,159 the
only evidence presented was a community tax certificate secured by the candidate and his declaration that he would be running in
the elections. Japzon v. COMELEC160 did not involve a candidate who wanted to count residence prior to his reacquisition of
Philippine citizenship. With the Court decreeing that residence is distinct from citizenship, the issue there was whether the
candidate's acts after reacquisition sufficed to establish residence. In Caballero v. COMELEC, 161 the candidate admitted that his
place of work was abroad and that he only visited during his frequent vacations. In Reyes v. COMELEC,162 the candidate was found
to be an American citizen who had not even reacquired Philippine citizenship under R.A. No. 9225 or had renounced her U.S.
citizenship. She was disqualified on the citizenship issue. On residence, the only proof she offered was a seven-month stint as
provincial officer. The COMELEC, quoted with approval by this Court, said that "such fact alone is not sufficient to prove her one-
year residency."

It is obvious that because of the sparse evidence on residence in the four cases cited by the respondents, the Court had no choice
but to hold that residence could be counted only from acquisition of a permanent resident visa or from reacquisition of Philippine
citizenship. In contrast, the evidence of petitioner is overwhelming and taken together leads to no other conclusion that she decided
to permanently abandon her U.S. residence (selling the house, taking the children from U.S. schools, getting quotes from the freight
company, notifying the U.S. Post Office of the abandonment of their address in the U.S., donating excess items to the Salvation
Army, her husband resigning from U.S. employment right after selling the U.S. house) and permanently relocate to the Philippines
and actually re-established her residence here on 24 May 2005 (securing T.I.N, enrolling her children in Philippine schools, buying
property here, constructing a residence here, returning to the Philippines after all trips abroad, her husband getting employed here).
Indeed, coupled with her eventual application to reacquire Philippine citizenship and her family's actual continuous stay in the
Philippines over the years, it is clear that when petitioner returned on 24 May 2005 it was for good.

In this connection, the COMELEC also took it against petitioner that she had entered the Philippines visa-free as a balikbayan. A
closer look at R.A. No. 6768 as amended, otherwise known as the "An Act Instituting a Balikbayan Program," shows that there is no
overriding intent to treat balikbayans as temporary visitors who must leave after one year. Included in the law is a former Filipino
who has been naturalized abroad and "comes or returns to the Philippines." 163 The law institutes a balikbayan program "providing
the opportunity to avail of the necessary training to enable the balikbayan to become economically self-reliant members of society
upon their return to the country"164in line with the government's "reintegration program."165 Obviously, balikbayans are not ordinary
transients.

Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into society, it would be an unduly
harsh conclusion to say in absolute terms that the balikbayan must leave after one year. That visa-free period is obviously granted
him to allow him to re-establish his life and reintegrate himself into the community before he attends to the necessary formal and
legal requirements of repatriation. And that is exactly what petitioner did - she reestablished life here by enrolling her children and
buying property while awaiting the return of her husband and then applying for repatriation shortly thereafter.

No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive and overwhelming, has as yet
been decided by the Court. Petitioner's evidence of residence is unprecedented. There is no judicial precedent that comes close to
the facts of residence of petitioner. There is no indication in Coquilla v. COMELEC,166 and the other cases cited by the respondents
that the Court intended to have its rulings there apply to a situation where the facts are different. Surely, the issue of residence has
been decided particularly on the facts-of-the case basis.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC ruled that petitioner's claim of
residence of ten (10) years and eleven (11) months by 9 May 2016 in her 2015 COC was false because she put six ( 6) years and
six ( 6) months as "period of residence before May 13, 2013" in her 2012 COC for Senator. Thus, according to the COMELEC, she
started being a Philippine resident only in November 2006. In doing so, the COMELEC automatically assumed as true the statement
in the 2012 COC and the 2015 COC as false.

As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013 COC as the period of
residence as of the day she submitted that COC in 2012. She said that she reckoned residency from April-May 2006 which was the
period when the U.S. house was sold and her husband returned to the Philippines. In that regard, she was advised by her lawyers in
2015 that residence could be counted from 25 May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May 2013) as inquiring about
residence as of the time she submitted the COC, is bolstered by the change which the COMELEC itself introduced in the 2015 COC
which is now "period of residence in the Philippines up to the day before May 09, 2016." The COMELEC would not have revised the
query if it did not acknowledge that the first version was vague.

That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house and the return of her husband is
plausible given the evidence that she had returned a year before. Such evidence, to repeat, would include her passport and the
school records of her children.

It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive admission against petitioner.
It could be given in evidence against her, yes, but it was by no means conclusive. There is precedent after all where a candidate's
mistake as to period of residence made in a COC was overcome by evidence. In Romualdez-Marcos v. COMELEC,167 the candidate
mistakenly put seven (7) months as her period of residence where the required period was a minimum of one year. We said that "[i]t
is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not an
individual has satisfied the constitutions residency qualification requirement." The COMELEC ought to have looked at the evidence
presented and see if petitioner was telling the truth that she was in the Philippines from 24 May 2005. Had the COMELEC done its
duty, it would have seen that the 2012 COC and the 2015 COC both correctly stated the pertinent period of residency.

The COMELEC, by its own admission, disregarded the evidence that petitioner actually and physically returned here on 24 May
2005 not because it was false, but only because COMELEC took the position that domicile could be established only from
petitioner's repatriation under R.A. No. 9225 in July 2006. However, it does not take away the fact that in reality, petitioner had
returned from the U.S. and was here to stay permanently, on 24 May 2005. When she claimed to have been a resident for ten (10)
years and eleven (11) months, she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide anything. As already stated, a petition for quo warranto had
been filed against her with the SET as early as August 2015. The event from which the COMELEC pegged the commencement of
residence, petitioner's repatriation in July 2006 under R.A. No. 9225, was an established fact to repeat, for purposes of her
senatorial candidacy.

Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner recounted that this was first
brought up in the media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist Alliance. Petitioner appears to have
answered the issue immediately, also in the press. Respondents have not disputed petitioner's evidence on this point. From that
time therefore when Rep. Tiangco discussed it in the media, the stated period of residence in the 2012 COC and the circumstances
that surrounded the statement were already matters of public record and were not hidden.

Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo warranto. Her Verified Answer, which
was filed on 1 September 2015, admitted that she made a mistake in the 2012 COC when she put in six ( 6) years and six ( 6)
months as she misunderstood the question and could have truthfully indicated a longer period. Her answer in the SET case was a
matter of public record. Therefore, when petitioner accomplished her COC for President on 15 October 2015, she could not be said
to have been attempting to hide her erroneous statement in her 2012 COC for Senator which was expressly mentioned in her
Verified Answer.

The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012 statement and have it covered
by the 2015 representation. Petitioner, moreover, has on her side this Court's pronouncement that:

Concededly, a candidate's disqualification to run for public office does not necessarily constitute material misrepresentation which is
the sole ground for denying due course to, and for the cancellation of, a COC. Further, as already discussed, the candidate's
misrepresentation in his COC must not only refer to a material fact (eligibility and qualifications for elective office), but should evince
a deliberate intent to mislead, misinform or hide a fact which would otherwise render a candidate ineligible. It must be made with an
intention to deceive the electorate as to one's qualifications to run for public office.168

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of evidenced dates all of which can
evince animus manendi to the Philippines and animus non revertedi to the United States of America. The veracity of the events of
coming and staying home was as much as dismissed as inconsequential, the focus having been fixed at the petitioner's "sworn
declaration in her COC for Senator" which the COMELEC said "amounts to a declaration and therefore an admission that her
residence in the Philippines only commence sometime in November 2006"; such that "based on this declaration, [petitioner] fails to
meet the residency requirement for President." This conclusion, as already shown, ignores the standing jurisprudence that it is the
fact of residence, not the statement of the person that determines residence for purposes of compliance with the constitutional
requirement of residency for election as President. It ignores the easily researched matter that cases on questions of residency have
been decided favorably for the candidate on the basis of facts of residence far less in number, weight and substance than that
presented by petitioner.169 It ignores, above all else, what we consider as a primary reason why petitioner cannot be bound by her
declaration in her COC for Senator which declaration was not even considered by the SET as an issue against her eligibility for
Senator. When petitioner made the declaration in her COC for Senator that she has been a resident for a period of six (6) years and
six (6) months counted up to the 13 May 2013 Elections, she naturally had as reference the residency requirements for election as
Senator which was satisfied by her declared years of residence. It was uncontested during the oral arguments before us that at the
time the declaration for Senator was made, petitioner did not have as yet any intention to vie for the Presidency in 2016 and that the
general public was never made aware by petitioner, by word or action, that she would run for President in 2016. Presidential
candidacy has a length-of-residence different from that of a senatorial candidacy. There are facts of residence other than that which
was mentioned in the COC for Senator. Such other facts of residence have never been proven to be false, and these, to repeat
include:

[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the USA to finish pending projects
and arrange the sale of their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled Brian in Beacon School in Taguig
City in 2005 and Hanna in Assumption College in Makati City in 2005. Anika was enrolled in Learning Connection in San Juan in
2007, when she was already old enough to go to school.

In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place Condominium in San Juan.
[Petitioner] and her family lived in Unit 7F until the construction of their family home in Corinthian Hills was completed.

Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who handled [petitioner's] adoption in
1974 failed to secure from the Office of the Civil Registrar of Iloilo a new Certificate of Live Birth indicating [petitioner's] new name
and stating that her parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of the family's remaining
household belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11 March 2006.
In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's abandonment of their address in
the US.

The family home in the US was sole on 27 April 2006.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines on 4 May 2006 and began
working for a Philippine company in July 2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they eventually built their family home.170

In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under the exclusive ground of false
representation, to consider no other date than that mentioned by petitioner in her COC for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her candidacy as President of the Republic, the
questioned Resolutions of the COMELEC in Division and En Banc are, one and all, deadly diseased with grave abuse of discretion
from root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent, stating that:

[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed
by respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated cases SPA No. 15-002 (DC)
entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139
(DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the petitions and cancel
the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of President of
the Republic of the Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.

3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution of the Second Division stating
that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the Verified Motion for
Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES. The Resolution dated 11 December
2015 of the Commission First Division is AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015 Resolution of the First Division.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES is DECLARED
QUALIFIED to be a candidate for President in the National and Local Elections of 9 May 2016.

SO ORDERED.

G.R. No. 209835, September 22, 2015

ROGELIO BATIN CABALLERO, Petitioner, v. COMMISSION ON ELECTIONS AND JONATHAN ENRIQUE V. NANUD,
JR., Respondents.

DECISION

PERALTA, J.:

Before us is a petition for certiorari with prayer for issuance of a temporary restraining order seeking to set aside the
Resolution1 dated November 6, 2013 of the Commission on Elections (COMELEC) En Banc which affirmed in toto the
Resolution2 dated May 3, 2013 of the COMELEC First Division canceling the Certificate of Candidacy (COC) of petitioner Rogelio
Batin Caballero.

Petitioner3 and private respondent Jonathan Enrique V. Nanud, Jr.4 were both candidates for the mayoralty position of the
Municipality of Uyugan, Province of Batanes in the May 13, 2013 elections. Private respondent filed a Petition 5 to deny due course
to or cancellation of petitioner's certificate of candidacy alleging that the latter made a false representation when he declared in his
COC that he was eligible to run for Mayor of Uyugan, Batanes despite being a Canadian citizen and a nonresident thereof.

During the December 10, 2012 conference, petitioner, through counsel, manifested that he was not properly served with a copy of
the petition and the petition was served by registered mail not in his address in Barangay Imnajbu, Uyugan, Batanes. He, however,
received a copy of the petition during the conference. Petitioner did not file an Answer but filed a Memorandum controverting private
respondent's substantial allegations in his petition.

Petitioner argued that prior to the filing of his COC on October 3, 2012, he took an Oath of Allegiance to the Republic of the
Philippines before the Philippine Consul General in Toronto, Canada on September 13, 2012 and became a dual Filipino and
Canadian citizen pursuant to Republic Act (RA) No. 9225, otherwise known as the Citizenship Retention and Reacquisition Act of
2003. Thereafter, he renounced his Canadian citizenship and executed an Affidavit of Renunciation before a Notary Public in
Batanes on October 1, 2012 to conform with Section 5(2) of RA No. 9225. 6 He claimed that he did not lose his domicile of origin in
Uyugan, Batanes despite becoming a Canadian citizen as he merely left Uyugan temporarily to pursue a brighter future for him and
his family; and that he went back to Uyugan during his vacation while working in Nigeria, California, and finally in Canada.

On May 3, 2013, the COMELEC First Division issued a Resolution finding that petitioner made a material misrepresentation in his
COC when he declared that he is a resident of Barangay Imnajbu, Uyugan, Batanes within one year prior to the election. The
decretal portion of the resolution reads:cralawlawlibrary

WHEREFORE, premises considered, this Commission RESOLVED, as it hereby RESOLVES to GRANT the instant Petition. The
Certificate of Candidacy of respondent Caballero is hereby CANCELLED. 7chanrobleslaw

The COMELEC First Division did not discuss the procedural deficiency raised by petitioner as he was already given a copy of the
petition and also in consonance with the Commission's constitutional duty of determining the qualifications of petitioner to run for
elective office. It found that while petitioner complied with the requirements of RA No. 9225 since he had taken his Oath of
Allegiance to the Philippines and had validly renounced his Canadian citizenship, he failed to comply with the other requirements
provided under RA No. 9225 for those seeking elective office, i.e., persons who renounced their foreign citizenship must still comply
with the one year residency requirement provided for under Section 39 of the Local Government Code. Petitioner's naturalization as
a Canadian citizen resulted in the abandonment of his domicile of origin in Uyugan, Batanes; thus, having abandoned his domicile of
origin, it is incumbent upon him to prove that he was able to reestablish his domicile in Uyugan for him to be eligible to run for
elective office in said locality which he failed to do.

Elections were subsequently held on May 13, 2013 and the election returns showed that petitioner won over private
respondent.8 Private respondent filed an Urgent Ex-parte Motion to Defer Proclamation.9

On May 14, 2013, petitioner was proclaimed Mayor of Uyugan, Batanes.

On May 16, 2013, petitioner filed a Motion for Reconsideration with the COMELEC En Banc assailing the May 3, 2013 Resolution
issued by the COMELEC's First Division canceling his COC.

On May 17, 2013, private respondent filed a Petition to Annul Proclamation.10

On November 6, 2013, the COMELEC En Banc issued its assailed Resolution denying petitioner's motion for reconsideration.

Petitioner filed with us the instant petition for certiorari with prayer for the issuance of a temporary restraining order.

In the meantime, private respondent filed a Motion for Execution11 of the May 3, 2013 Resolution of the COMELEC First Division as
affirmed by the En Banc and prayed for the cancellation of petitioner's COC, the appropriate correction of the certificate of canvas to
reflect that all votes in favor of petitioner are stray votes, declaration of nullity of petitioner's proclamation and proclamation of private
respondent as the duly-elected Mayor of Uyugan, Batanes in the May 13, 2013 elections.

On December 12, 2013, COMELEC Chairman Sixto S. Brillantes, Jr. issued a Writ of Execution. 12 Private respondent took his Oath
of Office13 on December 20, 2013.

In the instant petition for certiorari, petitioner raises the following assignment of errors, to wit:cralawlawlibrary

THE COMELEC EN BANC GRAVELY ERRED IN DISREGARDING THE CLEAR IMPORT OF PROCEDURAL RULES PROVIDED
FOR UNDER COMELEC RESOLUTION NO. 9523 PROMULGATED ON 25 SEPTEMBER 2012.

THE COMELEC EN BANC GRAVELY ERRED IN FINDING THAT PETITIONER ABANDONED HIS PHILIPPINE DOMICILE WHEN
HE WORKED IN SEVERAL FOREIGN COUNTRIES FOR "GREENER PASTURE."

EVEN ASSUMING THAT PETITIONER HAS ABANDONED HIS PHILIPPINE DOMICILE WHEN HE BECAME A CANADIAN
CITIZEN, HIS REACQUISITION OF HIS FILIPINO CITIZENSHIP, TAKING OATH OF ALLEGIANCE TO THE PHILIPPINE
GOVERNMENT NINE (9) MONTHS PRIOR TO HIS ELECTION ON 13 MAY 2013, IS A SUBSTANTIAL COMPLIANCE WITH THE
LAW ON RESIDENCY.14chanrobleslaw

Petitioner contends that when private respondent filed a petition to deny due course or to cancel his COC with the Office of the
Municipal Election Officer of Uyugan, Batanes, a copy thereof was not personally served on him; that private respondent later sent a
copy of the petition to him by registered mail without an attached affidavit stating the reason on why registered mail as a mode of
service was resorted to. Petitioner argues that private respondent violated Section 4, paragraphs (1) 15 and (4),16 Rule 23 of the
COMELEC Rules of Procedure, as amended by COMELEC Resolution No. 9523, thus, his petition to deny due course or cancel
petitioner's certificate of candidacy should have been denied outright.

We are not convinced.

While private respondent failed to comply with the above-mentioned requirements, the settled rule, however, is that the COMELEC
Rules of Procedure are subject to liberal construction. Moreover, the COMELEC may exercise its power to suspend its own rules as
provided under Section 4, Rule 1 of their Rules of Procedure.cralawlawlibrary

Sec. 4. Suspension of the Rules. - In the interest of justice and in order to obtain speedy disposition of all matters pending before
the Commission, these rules or any portion thereof may be suspended by the Commission.chanrobleslaw

Under this authority, the Commission is similarly enabled to cope with all situations without concerning itself about procedural
niceties that do not square with the need to do justice, in any case without further loss of time, provided that the right of the parties
to a full day in court is not substantially impaired.17

In Hayudini v. COMELEC,18 we sustained the COMELEC's liberal treatment of respondent's petition to deny due course or cancel
petitioner's COC despite its failure to comply with Sections 2 and 4 of Rule 23 of the COMELEC Rules of Procedure, as amended by
Resolution No. 9523, i.e., pertaining to the period to file petition and to provide sufficient explanation as to why his petition was not
served personally on petitioner, respectively, and held that:cralawlawlibrary

As a general rule, statutes providing for election contests are to be liberally construed in order that the will of the people in the
choice of public officers may not be defeated by mere technical objections. Moreover, it is neither fair nor just to keep in office, for an
indefinite period, one whose right to it is uncertain and under suspicion. It is imperative that his claim be immediately cleared, not
only for the benefit of the winner but for the sake of public interest, which can only be achieved by brushing aside technicalities of
procedure that protract and delay the trial of an ordinary action. This principle was reiterated in the cases of Tolentino v.
Commission on Elections and De Castro v. Commission on Elections, where the Court held that "in exercising its powers and
jurisdiction, as defined by its mandate to protect the integrity of elections, the COMELEC must not be straitjacketed by procedural
rules in resolving election disputes."

Settled is the rule that the COMELEC Rules of Procedure are subject to liberal construction. The COMELEC has the power to
liberally interpret or even suspend its rules of procedure in the interest of justice, including obtaining a speedy disposition of all
matters pending before it. This liberality is for the purpose of promoting the effective and efficient implementation of its objectives -
ensuring the holding of free, orderly, honest, peaceful, and credible elections, as well as achieving just, expeditious, and
inexpensive determination and disposition of every action and proceeding brought before the COMELEC. Unlike an ordinary civil
action, an election contest is imbued with public interest. It involves not only the adjudication of private and pecuniary interests of
rival candidates, but also the paramount need of dispelling the uncertainty which beclouds the real choice of the electorate. And the
tribunal has the corresponding duty to ascertain, by all means within its command, whom the people truly chose as their rightful
leader.19chanrobleslaw

Here, we find that the issue raised, i.e., whether petitioner had been a resident of Uyugan, Batanes at least one (1) year before the
elections held on May 13, 2013 as he represented in his COC, pertains to his qualification and eligibility to run for public office,
therefore imbued with public interest, which justified the COMELEC's suspension of its own rules. We adopt the COMELEC's s
ratiocination in accepting the petition, to wit:cralawlawlibrary

This Commission recognizes the failure of petitioner to comply strictly with the procedure for filing a petition to deny due course to or
cancel certificate of candidacy set forth in Section 4, Rule 23 of the COMELEC Rules of Procedure as amended by COMELEC
Resolution No. 9523, which requires service of a copy of the petition to respondent prior to its filing. But then, we should also
consider the efforts exerted by petitioner in serving a copy of his petition to respondent after being made aware that such service is
necessary. We should also take note of the impossibility for petitioner to personally serve a copy of the petition to respondent since
he was in Canada at the time of its filing as shown in respondent's travel records.

The very purpose of prior service of the petition to respondent is to afford the latter an opportunity to answer the allegations
contained in the petition even prior to the service of summons by the Commission to him. In this case, respondent was given a copy
of the petition during the conference held on 10 December 2012 and was ultimately accorded the occasion to rebut all the
allegations against him. He even filed a Memorandum containing his defenses to petitioner's allegations. For all intents and
purposes, therefore, respondent was never deprived of due process which is the very essence of this Commission's Rules of
Procedure.

Even the Supreme Court acknowledges the need for procedural rules to bow to substantive considerations "through a liberal
construction aimed at promoting their objective of securing a just, speedy and inexpensive disposition of every action and
proceeding, x x x
xxxx

When a case is impressed with public interest, a relaxation of the application of the rules is in order, x x x.

Unquestionably, the instant case is impressed with public interest which warrants the relaxation of the application of the [R]ules of
[P]rocedure, consistent with the ruling of the Supreme Court in several cases. 20chanrobleslaw

Petitioner next claims that he did not abandon his Philippine domicile. He argues that he was born and baptized in Uyugan,
Batanes; studied and had worked therein for a couple of years, and had paid his community tax certificate; and, that he was a
registered voter and had exercised his right of suffrage and even built his house therein. He also contends that he usually comes
back to Uyugan, Batanes during his vacations from work abroad, thus, his domicile had not been lost. Petitioner avers that the
requirement of the law in fixing the residence qualification of a candidate running for public office is not strictly on the period of
residence in the place where he seeks to be elected but on the acquaintance by the candidate on his constituents' vital needs for
their common welfare; and that his nine months of actual stay in Uyugan, Batanes prior to his election is a substantial compliance
with the law. Petitioner insists that the COMELEC gravely abused its discretion in canceling his COC.

We are not persuaded.

RA No. 9225, which is known as the Citizenship Retention and Reacquisition Act of 2003, declares that natural-born citizens of the
Philippines, who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country, can re-acquire
or retain his Philippine citizenship under the conditions of the law. 21 The law does not provide for residency requirement for the
reacquisition or retention of Philippine citizenship; nor does it mention any effect of such reacquisition or retention of Philippine
citizenship on the current residence of the concerned natural-born Filipino.22

RA No. 9225 treats citizenship independently of residence. 23 This is only logical and consistent with the general intent of the law to
allow for dual citizenship. Since a natural-born Filipino may hold, at the same time, both Philippine and foreign citizenships, he may
establish residence either in the Philippines or in the foreign country of which he is also a citizen. 24 However, when a natural-born
Filipino with dual citizenship seeks for an elective public office, residency in the Philippines becomes material. Section 5(2) of FLA
No. 9225 provides:cralawlawlibrary

SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or reacquire 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:
xxxx

(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 before any public officer authorized to administer an oath.
chanrobleslaw

Republic Act No. 7160, which is known as the Local Government Code of 1991, provides, among others, for the qualifications of an
elective local official. Section 39 thereof states:cralawlawlibrary

SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay,
municipality, city or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian
bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the
election; and able to read and write Filipino or any other local language or dialect.chanrobleslaw

Clearly, the Local Government Code requires that the candidate must be a resident of the place where he seeks to be elected at
least one year immediately preceding the election day. Respondent filed the petition for cancellation of petitioner's COC on the
ground that the latter made material misrepresentation when he declared therein that he is a resident of Uyugan, Batanes for at
least one year immediately preceeding the day of elections.

The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or "habitation," but rather to
"domicile" or legal residence,25 that is, "the place where a party actually or constructively has his permanent home, where he, no
matter where he may be found at any given time, eventually intends to return and remain (animus manendi)."26 A domicile of origin
is acquired by every person at birth. It is usually the place where the child's parents reside and continues until the same is
abandoned by acquisition of new domicile (domicile of choice). It consists not only in the intention to reside in a fixed place but also
personal presence in that place, coupled with conduct indicative of such intention. 27

Petitioner was a natural born Filipino who was born and raised in Uyugan, Batanes. Thus, it could be said that he had his domicile of
origin in Uyugan, Batanes. However, he later worked in Canada and became a Canadian citizen. In Coquilla v. COMELEC28 we
ruled that naturalization in a foreign country may result in an abandonment of domicile in the Philippines. This holds true in
petitioner's case as permanent resident status in Canada is required for the acquisition of Canadian citizenship.29 Hence, petitioner
had effectively abandoned his domicile in the Philippines and transferred his domicile of choice in Canada. His frequent visits to
Uyugan, Batanes during his vacation from work in Canada cannot be considered as waiver of such abandonment.

The next question is what is the effect of petitioner's retention of his Philippine citizenship under RA No. 9225 on his residence or
domicile?

In Japzon v. COMELEC,30 wherein respondent Ty reacquired his Philippine citizenship under RA No. 9225 and run for Mayor of
General Macarthur, Eastern Samar and whose residency in the said place was put in issue, we had the occasion to state,
thus:cralawlawlibrary

[Petitioner's] reacquisition of his Philippine citizenship under Republic Act No. 9225 had no automatic impact or effect on
his residence/domicile. He could still retain his domicile in the USA, and he did not necessarily regain his domicile in the
Municipality of General Macarthur, Eastern Samar, Philippines. Ty merely had the option to again establish his domicile in the
Municipality of General Macarthur, Eastern Samar, Philippines, said place becoming his new domicile of choice. The length of his
residence therein shall be determined from the time he made it his domicile of choice, and it shall not retroact to the time of his
birth.31chanrobleslaw

Hence, petitioner's retention of his Philippine citizenship under RA No. 9225 did not automatically make him regain his residence in
Uyugan, Batanes. He must still prove that after becoming a Philippine citizen on September 13, 2012, he had reestablished Uyugan,
Batanes as his new domicile of choice which is reckoned from the time he made it as such.

The COMELEC found that petitioner failed to present competent evidence to prove that he was able to reestablish his residence in
Uyugan within a period of one year immediately preceding the May 13, 2013 elections. It found that it was only after reacquiring his
Filipino citizenship by virtue of RA No. 9225 on September 13, 2012 that petitioner can rightfully claim that he re-established his
domicile in Uyugan, Batanes, if such was accompanied by physical presence thereat, coupled with an actual intent to reestablish his
domicile there. However, the period from September 13, 2012 to May 12, 2013 was even less than the one year residency required
by law.

Doctrinally entrenched is the rule that in a petition for certiorari, findings of fact of administrative bodies, such as respondent
COMELEC in the instant case, are final unless grave abuse of discretion has marred such factual determinations/~ Clearly, where
there is no proof of grave abuse of discretion, arbitrariness, fraud or error of law in the questioned Resolutions, we may not review
the factual findings of COMELEC, nor substitute its own findings on the sufficiency of evidence. 33

Records indeed showed that petitioner failed to prove that he had been a resident of Uyugan, Batanes for at least one year
immediately preceding the day of elections as required under Section 39 of the Local Government Code.

Petitioner's argument that his nine (9) months of actual stay in Uyugan, Batanes, prior to the May 13, 2013 local elections is a
substantial compliance with the law, is not persuasive. In Aquino v. Commission on Elections,34 we held:cralawlawlibrary

x x x A democratic government is necessarily a government of laws. In a republican government those laws are themselves
ordained by the people. Through their representatives, they dictate the qualifications necessary for service in government positions.
And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not
even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated
by the fundamental law itself.35chanrobleslaw

Petitioner had made a material misrepresentation by stating in his COC that he is a resident of Uyugan, Batanes for at least one (1)
year immediately proceeding the day of the election, thus, a ground for a petition under Section 78 of the Omnibus Election Code.
Section 74, in relation to Section 78, of the OEC governs the cancellation of, and grant or denial of due course to COCs, to
wit:cralawlawlibrary

SEC. 74. Contents of certificate of candidacy. - The certificate of candidacy shall state that the person filing it is announcing his
candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province,
including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he
belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that
he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the
laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to
a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion;
and that the facts stated in the certificate of candidacy are true to the best of his knowledge.

xxxx

SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the
time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before
the election.chanrobleslaw

We have held that in order to justify the cancellation of COC under Section 78, it is essential that the false representation mentioned
therein pertains to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate -
the right to run for the elective post for which he filed the certificate of candidacy. 36 We concluded that material representation
contemplated by Section 78 refers to qualifications for elective office, such as the requisite residency, age, citizenship or any other
legal qualification necessary to run for a local elective office as provided for in the Local Government Code. 37 Furthermore, aside
from the requirement of materiality, the misrepresentation must consist of a deliberate attempt to mislead, misinform, or hide a fact
which would otherwise render a candidate ineligible.38 We, therefore, find no grave abuse of discretion committed by the COMELEC
in canceling petitioner's COC for material misrepresentation.

WHEREFORE, the petition for certiorari is DISMISSED. The Resolution dated May 3, 2013 of the COMELEC First Division and the
Resolution dated November 6, 2013 of the COMELEC En Banc and are hereby AFFIRMED.

SO ORDERED.

G.R. No. 210164, August 18, 2015

ROMMEL C. ARNADO, Petitioner, v. COMMISSION ON ELECTIONS AND FLORANTE CAPITAN, Respondents.

DECISION

DEL CASTILLO, J.:

Only natural-born Filipinos who owe total and undivided allegiance to the Republic of the Philippines could run for and hold elective
public office.

Before this Court is a Petition for Certiorari1 filed under Rule 64 in relation to Rule 65 of the Rules of Court assailing the Per
Curiam Resolution2 dated December 9, 2013 of respondent Commission on Elections (Comelec) En Banc in SPA No. 13-309 (DC),
which affirmed the Resolution3 dated September 6, 2013 of the Comelec Second Division. The Comelec, relying on our ruling
in Maquiling v. Commission on Elections,4 disqualified petitioner Rommel C. Arnado (Arnado) from running in the May 13, 2013
elections, set aside his proclamation as elected mayor of Kauswagan, Lanao del Norte, and declared respondent Florante T.
Capitan (Capitan) as the duly elected mayor of said municipality.

Factual Antecedents

Petitioner Arnado is a natural-born Filipino citizen who lost his Philippine citizenship after he was naturalized as citizen of the United
States of America (USA). Subsequently, and in preparation for his plans to run for public office in the Philippines, Arnado applied for
repatriation under Republic Act No. 92255 (RA 9225) before the Consul General of the Philippines in San Franciso, USA. He took an
Oath of Allegiance to the Republic of the Philippines on July 10, 2008 and, on even date, an Order of Approval of Citizenship
Retention and Re acquisition was issued in his favor. On April 3, 2009, Arnado executed an Affidavit of Renunciation of his foreign
citizenship.

On November 30, 2009, Arnado filed his Certificate of Candidacy (CoC) for the mayoralty post of Kauswagan, Lanao del Norte for
the May 10, 2010 national and local elections.

Linog C. Balua (Balua), another mayoralty candidate, however, filed a petition to disqualify Arnado and/or to cancel his CoC on the
ground, among others, that Arnado remained a US citizen because he continued to use his US passport for entry to and exit from
the Philippines after executing aforesaid Affidavit of Renunciation.

While Balua's petition remained pending, the May 10, 2010 elections proceeded where Arnado garnered the highest number of
votes for the mayoralty post of Kauswagan. He was proclaimed the winning candidate.

On October 5, 2010, the Comelec First Division issued a Resolution holding that Arnado's continued use of his US passport
effectively negated his April 3, 2009 Affidavit of Renunciation. Thus, he was disqualified to run for public office for failure to comply
with the requirements of RA 9225. The Comelec First Division accordingly nullified his proclamation and held that the rule on
succession should be followed.

Arnado moved for reconsideration. In the meantime, Casan Macode Maquiling (Maquiling), another mayoralty candidate who
garnered the second highest number of votes, intervened in the case. He argued that the Comelec First Division erred in applying
the rule on succession.

On February 2, 2011, the Comelec En Banc rendered a Resolution reversing the ruling of the Comelec First Division. It held that
Arnado's use of his US passport did not operate to revert his status to dual citizenship. The Comelec En Banc found merit in
Arnado's explanation that he continued to use his US passport because he did not yet know that he had been issued a Philippine
passport at the time of the relevant foreign trips. The Comelec En Banc further noted that, after receiving his Philippine passport,
Arnado used the same for his subsequent trips.

Maquiling then sought recourse to this Court by filing a petition docketed as G.R No. 195649.

While G.R No. 195649 was pending, the period for the filing of CoCs for local elective officials for the May 13, 2013 elections
officially began. On October 1, 2012, Arnado filed his CoC6 for the same position. Respondent Capitan also filed his CoC for the
mayoralty post of Kauswagan.

On April 16, 2013, this Court rendered its Decision in Maquiling. Voting 10-5, it annulled and set aside the Comelec En Banc's
February 2, 2011 Resolution, disqualified Arnado from running for elective position, and declared Maquiling as the duly elected
mayor of Kauswagan, Lanao Del Norte in the May 10, 2010 elections. In so ruling, the majority of the Members of the Court opined
that in his subsequent use of his US passport, Arnado effectively disavowed or recalled his April 3, 2009 Affidavit of Renunciation.
Thus:ChanRoblesvirtualLawlibrary

We agree with the pronouncement of the COMELEC First Division that "Arnado's act of consistently using his US passport
effectively negated his "Affidavit of Renunciation." Tills does not mean that he failed to comply with the twin requirements under R.A.
No. 9225, for he in fact did. It was after complying with the requirements that he perfonned positive acts which effectively
disqualified him from running for an elective public office pursuant to Section 40(d) of the Local Government Code of 1991.

The purpose of the Local Government Code in disqualifying dual citizens from running for any elective public office would be
thwarted if we were to allow a person who has earlier renounced his foreign citizenship, but who subsequently represents himself as
a foreign citizen, to hold any public office.

xxxx

We therefore hold that Arnado, by using his US passport after renouncing his American citizenship, has recanted the same Oath of
Renunciation he took. Section 40(d) of the Local Government Code applies to his situation. He is disqualified not only from holding
the public office but even from becoming a candidate in the May 2010 elections. 7

The issuance of this Court's April 16, 2013 Decision sets the stage for the present controversy.

On May 9, 2013 or shortly after the Court issued its Decision in Maquiling, Arnado executed an Affidavit Affirming Rommel C.
Arnado's "Affidavit of Renunciation Dated April3, 2009."8cralawrednad

The following day or on May 10, 2013, Capitan, Arnado's lone rival for the mayoralty post, filed a Petition9 seeking to disqualify him
from running for municipal mayor of Kauswagan and/or to cancel his CoC based on the ruling of this Court in Maquiling. The case
was docketed as SPA No. 13-309 (DC) and was raffled to the Comelec's Second Division. The resolution of said petition was,
however, overtaken by the May 13, 2013 elections where Arnado garnered 8,902 votes (84% of the total votes cast) while Capitan
obtained 1,707 (16% of the total votes cast) votes only.

On May 14, 2013, Arnado was proclaimed as the winning candidate.

Unfazed, Capitan filed another Petition10 this time seeking to nullify Arnado's proclamation. He argued that with the April 16, 2013
Decision of this Court in Maquiling, there is no doubt that Arnado is disqualified from running for any local elective office. Hence,
Arnado's proclamation is void and without any legal effect.

Ruling of the Comelec Second Division

On September 6, 2013, the Comelec Second Division promulgated a Resolution granting the petition in SPA No. 13-309 (DC) and
disqualify Arnado from running in the May 13, 2013 elections. Following Maquiling, it ratiocinated that at the time he filed his CoC on
October 1, 2012, Arnado still failed to comply with the requirement of RA 9225 of making a personal and sworn renunciation of any
and all foreign citizenship. While he executed the April 3, 2009 Affidavit of Renunciation, the same was deemed withdrawn or
recalled when he subsequently traveled abroad using his US passport, as held in Maquiling.

The Comelec Second Division also noted that Arnado failed to execute another Affidavit of Renunciation for purposes of the May 13,
2013 elections. While a May 9, 2013 Affidavit Affirming Rommel C. Arnado's "Affidavit of Renunciation dated April 3, 2009" was
submitted in evidence, the same would not suffice because it should have been executed on or before the filing of the CoC on
October 1, 2012.

The dispositive portion of the Comelec Second Division's Resolution reads:ChanRoblesvirtualLawlibrary

WHEREFORE, premises considered, the instant Petition is granted. Respondent Rommel Cagoco Arnado is disqualified from
running in the 13 May 2013 National and Local Elections.

SO ORDERED.11

Ruling of the Comelec En Banc

Aggrieved, Arnado filed a Verified Motion for Reconsideration.12 He argued that the Comelec Second Division erred in
applying Maquiling claiming that the said case is not on all fours with the present controversy; that Capitan's Petition was filed
beyond the 25-day reglementary period reckoned from the filing of the CoC sought to be cancelled; and, that the Comelec must
uphold the sovereign will of the people of Kauswagan who expressed, thru the ballots, their overwhelming support for him as their
mayor. Arnado prayed that the Comelec Second Division's September 6, 2013 Resolution be reversed and that he be declared as
eligible to run for mayor ofKauswagan.

On December 9, 2013, the Comelec En Banc affirmed the ruling of the Comelec Second Division. It accordingly annulled the
proclamation of Arnado and declared Capitan as the duly elected mayor of Kauswagan. The dispositive portion of the Comelec En
Banc's Resolution reads:ChanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the instant motion for reconsideration is hereby DISMISSED. The Proclamation of Private
Respondent Rommel C. Arnado as the duly elected mayor of Kauswagan, Lanao del Norte is hereby ANNULLED and SET ASIDE.
FLORANTE T. CAPITAN is hereby DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte inthe May 13, 2013
Elections.

SO ORDERED.13

Hence, on December 16, 2013 Arnado filed the instant Petition with ancillary prayer for injunctive relief to maintain the status quo
ante. On December

26, 2013, Arnado filed an Urgent Motion for Issuance of Status Quo Ante Order or Temporary Restraining Order14 in view of the
issuance by the Comelec En Banc of a Writ of Execution to implement its December 9, 2013 Resolution.

On January 14, 2014, this Court issued a Resolution15 requiring the respondents to file their respective comments on the petition. In
the same Resolution, this Court granted Arnado's ancillary relief for temporary restraining order.

Capitan thus filed an Urgent Motion to Lift and/or Dissolve Temporary Restraining Order dated January 14, 2014,16 contending that
the acts sought to be restrained by Arnado are already fait accompli. He alleged that the Comelec En Banc had already issued a
Writ of Execution17 and pursuant thereto a Special Municipal Board of Canvassers was convened. It proclaimed him to be the duly
elected mayor of Kauswagan and on January 2, 2014 he took his oath of office. Since then, he has assumed and performed the
duties and functions of his office.

In a Resolution18 dated February 25, 2014, this Court ordered the issuance of a Status Quo Ante Order directing the parties to allow
Arnado to continue performing his functions as mayor of Kauswagan pending resolution of this case.

Issues

In support of his Petition, Arnado raises the following issues:ChanRoblesvirtualLawlibrary

WHETHER x x x THE COMELEC EN BANC AND 2ND DIVISION VIOLATED PROCEDURAL DUE PROCESS AND COMMITTED
GRAVE ABUSE OF DISCRETION IN FAILING TO DISMISS THE PETITIONS OF RESPONDENT CAPITAN ON THE GROUND
OF FORUM-SHOPPING AND/OR LATE FILING, ETC.

II

WHETHER x x x THE COMELEC EN BANC VIOLATED DUE PROCESS AND COMMITTED GRAVE ABUSE OF DISCRETION BY
ALLOWING COM. ELIAS YUSOPH TO REVIEW THE DECISION HE WROTE FOR THE 2ND DIVISION.

III

WHETHER x x x THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN DISENFRANCHISING 84% OF THE
VOTERS OF KAUSWAGAN IN THE MAY 2013 ELECTIONS.

IV

WHETHER x x x THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN DISQUALIFYING PETITIONER WHO HAS
FULLY COMPLIED WITH THE REQUIREMENTS OF RA 9225 BEFORE THE FILING OF HIS COC ON OCTOBER 1, 2012.19

Arnado claims that the Comelec committed grave abuse of discretion and violated his right to procedural due process in not
dismissing Capitan's Petition in SPA No. 13-309 (DC). He avers that Capitan is guilty of forum-shopping because the latter
subsequently filed a similar case docketed as SPC No. 13-019. In addition, SPA No. 13-309 (DC) was filed beyond the 25-day
prescriptive period reckoned from the time of the filing of his CoC on October 1, 2012.

Arnado likewise claims that the proceeding before the Comelec is peppered with procedural infirmities. He asserts that the Comelec
violated its own rules in deciding SPA No. 13-309 (DC) without first resolving Capitan's motion to consolidate; that SPA No. 13-309
(DC) was not set for trial and no hearing for the reception of evidence was ever conducted; and, that the Comelec did not follow its
own rules requiring the issuance of a notice of promulgation of resolutions.

Arnado further claims that the Comelec En Banc not only committed grave abuse of discretion but also violated his constitutional
right to due process when it allowed Commissioner Elias R. Yusoph (Commissioner Yusoph) to participate in the review of the
Decision he penned for the Second Division. Furthermore, the Comelec En Banc committed grave abuse of discretion when it
disqualified him from running in the May 13, 2013 elections, thereby disenfranchising 84% of the voters of Kauswagan who all voted
for him.

Finally, Arnado avers that further inquiry and examination of the notarial register of his former counsel, Atty. Thomas Dean M.
Quijano, revealed that he executed an Affidavit of Renunciation with Oath of Allegiance20 on November 30, 2009. Hence, at the time
he filed his CoC on October 1, 2012, he is a citizen of the Philippines who does not owe allegiance to any other country and,
therefore, is qualified to run for mayor of Kauswagan in the May 13, 2013 elections.

Our Ruling

The Petition is devoid of merit.

Petition for certiorari is limited to the

determination of whether the respondent
tribunal acted with grave abuse of discretion
amounting to lack or excess of jurisdiction.

In a petition for certiorari under Rule 64 in relation to Rule 65 of the Rules of Court, the primordial issue to be resolved is whether
the respondent tribunal committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed
resolution. And as a matter of policy, this Court will not interfere with the resolutions of the Comelec unless it is shown that it had
committed grave abuse of discretion.21 Thus, in the absence of grave abuse of discretion, a Rule 64 petition will not prosper.
Jurisprudence, on the other hand, defines grave abuse of discretion as the "capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction."22 "Mere abuse of discretion is not enough; it must be grave."23 Grave abuse of discretion has
likewise been defined as an act done contrary to the Constitution, the law or jurisprudence. 24cralawrednad

In this case, and as will be discussed below, there is no showing that the Comelec En Banc acted capriciously or whimsically in
issuing its December 9, 2013 Resolution. Neither did it act contrary to law or jurisprudence.

Arnado's allegations that Capitan

violated the rule against forumshopping
and that the latter's petition in
SPA No.13-309(DC) was filed late,
unsubstantiated and erroneous.

There is forum-shopping when two or more actions or proceedings, founded on the same cause, are instituted by a party on the
supposition that one or the other court would make a favorable disposition. 25cralawred It exists when the elements of litis
pendentia are present or where a final judgment in one case will amount to res judicata in the other.26 Thus, there is forum-shopping
when in both actions there exist: (1) identity of parties, or at least such parties as would represent the same interests in both actions;
(2) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (3) the identity of the two
preceding particulars is such that any judgment rendered in the other action will, regardless of which party is successful, amount
to res judicata in the action under consideration.27cralawrednad

Here, Arnado failed to substantiate his claim of forum-shopping. He merely made a general averment that in resolving the petitions
of Capitan in SPA No. 13-309 (OC) and SPC No. 13-019, the Comelec En Banc, as well as its Second Division, failed to comply
with this Court's Revised Circular No. 28-91,28without demonstrating how forum-shopping was supposed to be present. He has not
shown that the petitions in SPA No. 13-309 (DC) and SPC No. 13-019 involved the same parties, issues, and reliefs. In fact, Arnado
did not even bother to submit to this Court a copy of the Petition in SPC No. 13-019 (annulment of proclamation case). As the party
insisting that Capitan committed forum-shopping, Arnado bears the burden of establishing the same. After all, it is settled that he
who alleges has the burden of proving it; mere allegation is not sufficient.29cralawrednad

Besides, and as correctly observed by the Solicitor General, the parties in SPA No. 13-309 (DC) and SPC No. 13-019 are not the
same. In the first case, the parties are only Capitan and Arnado. In the second case, the Municipal Board of Canvassers of
Kauswagan, Lanao del Norte is impleaded as respondent. There is also dissimilitude in the reliefs sought. The former case sought
to disqualify Arnado and/or to cancel his CoC while the latter case prayed for the annulment of Arnado's proclamation as mayor of
Kauswagan.

With regard to the alleged tardiness in the filing of Capitan's Petition in SPA No. 13-309 (DC), it appears that Arnado either failed to
grasp the import of Capitan's allegations therein or he made a deliberate partial misrepresentation in stating that the same is one for
cancellation of CoC. A copy30 thereof annexed to Arnado's herein petition states that it is a petition "to disqualify and/or cancel the
certificate of candidacy" of Arnado. The allegations therein state in no uncertain terms that it is one for disqualification based on
Arnado's failure to comply with the requisites of RA 9225 and on the ruling of this Court in Maquiling. Thus, the Comelec Second
Division appropriately treated it as a petition for disqualification with the alternative prayer to cancel Arnado's CoC. It is elementary
that the nature of the action is determined by the allegations in the petition. 31cralawrednad

Under Section 3, Rule 25 of the Comelec Rules of Procedure,32 a petition for disqualification should be filed "any day after the last
day for filing of certificates of candidacy but not later than the date of proclamation." Here, Arnado was proclaimed as the winning
candidate on May 14, 2013.33 Thus, the petition in SPA No. 13-309 (DC) was seasonably filed on May 10, 2013.34cralawrednad

The other procedural lapses allegedly

committed by the Comelec are likewise
unsubstantiated. Assuming the allegations of
Arnado to be true, the Comelec did not commit
grave abuse of discretion amounting to lack or
excess of jurisdiction.
Arnado's claim that the Comelec gravely abused its discretion in deciding SPA No. 13-309 (DC) without first resolving Capitan's
motion to consolidate likewise lacks substantiation. In the first place, Arnado has not attached a copy of said motion to his petition.
This alone is sufficient ground for the dismissal of his Rule 64 Petition, filed in relation to Rule 65 of the Rules of Court, for not being
accompanied by pleadings and documents relevant and pertinent thereto.35 Also, it was Capitan who filed the motion for
consolidation. Not being the movant, Arnado is not in a position to question the alleged inaction of the Comelec on said motion. And
even assuming that he has, by filing a Verified Motion for Reconsideration with the Comelec En Banc and subsequently appealing to
this Court despite the still unresolved motion for consolidation, Arnado effectively abandoned said motion for consolidation.
In Cayago v. Hon. Lina,36it was held that once a party elevates the case before the appellate tribunal, the appellant is deemed to
have abandoned the unresolved motion which remains pending with the tribunal of origin. "[I]t is not right for a party who has
affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief, to afterwards make a volte
face and deny that same jurisdiction."37cralawrednad

In any case, under Section 9, Rule 3 of the Comelec Rules of Procedure, consolidation is only permissive. It is not mandatory.
Section 9 reads:ChanRoblesvirtualLawlibrary

Sec. 9. Consolidation of Cases.- When an action or proceeding involves a question of law and fact which is similar to or common
with that of another action or proceeding, the same may be consolidated with the action or proceeding bearing the lower docket
number.

In Muñoz v. Comelec,38 this Court accentuated "that the term 'may' is indicative of a mere possibility, an opportunity or an option.
The grantee of that opportunity is vested with a right or faculty which he has the option to exercise. If he chooses to exercise the
right, he must comply with the conditions attached thereto, which in this case require that the cases to be consolidated must involve
similar questions of law and fact."39 In this case, the consolidation of SPA No. 13-309 (DC) and SPC No. 13-019 does not appear to
be necessary. As earlier mentioned, said cases do not even involve the same parties and reliefs sought. Hence, no grave abuse of
discretion can be attributed to the Comelec in not consolidating them.

Arnado's protestation that the Comelec violated its own rules when it decided SPA No. 13-309 (DC) without setting it for trial likewise
deserves scant consideration. The proceedings in a special action for disqualification of candidates under Rule 25 of the Comelec
Rules of Procedure are summary in nature where a trial type proceeding may be dispensed with. 40 In Diangka v. Comelec,41 this
Court held that:ChanRoblesvirtualLawlibrary

Again, our ingrained jurisprudence is that technical rules of evidence should not be rigorously applied in administrative proceedings
specially where the law calls for the proceeding to be summary in character. Pursuant to Section 4, Rule 25 of the 1993 COMELEC
Rules of Procedure, petitions for disqualifications are subject to summary hearings. In relation thereto, Section 3, Rule 17 of the said
Rules provides that it remains in the sound discretion of the COMELEC whether clarification questions are to be asked the
witnesses-affiants, and whether the adverse party is to be granted opportunity to cross-examine said witnesses affiants.
Furthermore, when the COMELEC en banc reviews and evaluates a party's petition, or as in the case at bar, a party's answer and
the supporting papers attached thereto, the same is tantamount to a fair "hearing" of his case.42

Arnado's claim that the Comelec En Banc

committed grave abuse of discretion and violated
his right to due process in allowing Commissioner
Yusoph to participate in the deliberation of the assailed
Comelec En Banc Resolution is likewise bereft of
substantiation.

Arnado's claim that Commissioner Yusoph penned both the September 6, 2013 Resolution of the Comelec Second Division and the
December 9, 2013 Resolution of the Comelec En Banc is not correct. While Commissioner Yusoph, together with Commissioners
Maria Gracia Cielo M. Padaca and Luie Tito F. Guia, signed said Resolution, there is nothing therein which would indicate that
Commissioner Yusoph was the writer or the ponente of said Resolution. The September 6, 2013 Resolution of the Comelec Second
Division does not state who the ponente is. The same goes true with the questioned December 9, 2013 Per Curiam Resolution43 of
the Comelec En Banc. As a per curiam resolution, it was arrived at by the Comelec En Banc as a whole and without any
particular ponente. Hence, we need not belabor Arnado's claim of denial of due process as his basis therefor lacks factual moorings.

Arnado has not yet satisfied the twin

requirements of Section 5(2) of RA 9225 at
the time he filed his CoC for the May 13, 2013
elections; subsequent compliance does not suffice.

Under Section 4(d) of the Local Government Code, a person with "dual citizenship" is disqualified from running for any elective local
position. In Mercado v. anzano,44 it was clarified that the phrase "dual citizenship" in said Section 4(d) must be understood as
referring to "dual allegiance.''45 Subsequent, Congress enacted RA 9225 allowing natural-born citizens of the Philippines who have
lost their Philippine citizenship by reason of their naturalization abroad to reacquire Philippine citizenship and to enjoy full civil and
political rights upon compliance with the requirements of the law. They may now run for public office in the Philippines provided that
they: (1) meet the qualifications for holding such public office as required by the Constitution and existing laws; and, (2) make a
personal and sworn renunciation of any and all foreign citizenships before any public officer authorized to administer an oath46 prior
to or at the time of filing of their CoC. Thus:ChanRoblesvirtualLawlibrary
Section 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:ChanRoblesvirtualLawlibrary

xxxx

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

In the case at bench, the Comelec Second Division, as affirmed by the Comelec En Banc, ruled that Arnado failed to comply with
the second requisite of Section 5 (2) of RA 9225 because, as held in Maquiling v. Commission on Elections,47 his April 3, 2009
Affidavit of Renunciation was deemed withdrawn when he used his US passport after executing said affidavit. Consequently, at the
time he filed his CoC on October 1, 2012 for purposes of the May 13, 2013 elections, Arnado had yet to comply with said second
requirement. The Comelec also noted that while Arnado submitted an affidavit dated May 9, 2013, affirming his April 3, 2009
Affidavit of Renunciation, the same would not suffice for having been belatedly executed.

The Comelec En Banc did not err, nor did it commit grave abuse of discretion, in upholding the Resolution of the Comelec Second
Division disqualifying Arnado from running for public office. It is worth noting that the reason for Arnado's disqualification to run for
public office during the 2010 elections — being a candidate without total and undivided allegiance to the Republic of the Philippines
- still subsisted when he filed his CoC for the 2013 elections on October 1, 2012. The Comelec En Banc merely adhered to the
ruling of this Court in Maquiling lest it would be committing grave abuse of discretion had it departed therefrom.

Moreover, it cannot be validly argued that Arnado should be given the opportunity to correct the deficiency in his qualification
because at the time this Court promulgated its Decision in Maquiling on April 16, 2013, the period for filing the CoC for local elective
office had already lapsed. Or, as Justice Arturo D. Brion puts it in his Dissenting Opinion, "[t]o the extent that Arnado was denied the
chance to submit a replacement oath of renunciation in 2013, then there was an unfair and abusive denial of opportunity equivalent
to grave abuse of discretion." Besides, shortly after learning of the Court's April 16, 2013 ruling in Maquiling or on May 9, 2013,
Arnado substantially complied therewith by executing an affidavit affirming his April3, 2009 Affidavit of Renunciation.

The ruling in Maquiling is indeed novel in the sense that it was the first case dealing with the effect of the use of a foreign passport
on the qualification to run for public office of a natural-born Filipino citizen who was naturalized abroad and subsequently availed of
the privileges under RA 9225. It was settled in that case that the use of a foreign passport amounts to repudiation or recantation of
the oath of renunciation. Yet, despite the issue being novel and of first impression, plus the fact that Arnado could not have divined
the possible adverse consequences of using his US passport, the Court in Maquiling did not act with leniency or benevolence
towards Arnado. Voting 10-5, the Court ruled that matters dealing with qualifications for public elective office must be strictly
complied with. Otherwise stated, the Court in Maquiling did not consider the novelty of the issue as to excuse Arnado from strictly
complying with the eligibility requirements to run for public office or to simply allow him to correct the deficiency in his qualification by
submitting another oath of renunciation. Thus, it is with more reason that in this case, we should similarly require strict compliance
with the qualifications to run for local elective office.

The circumstances surrounding the qualification of Arnado to run for public office during the May 10, 2010 and May 13, 2013
elections, to reiterate for emphasis, are the same. Arnado's use of his US passport in 2009 invalidated his oath of renunciation
resulting in his disqualification to run for mayor of Kauswagan in the 2010 elections. Since then and up to the time he filed his CoC
for the 2013 elections, Arnado had not cured the defect in his qualification. Maquiling, therefore, is binding on and applicable to this
case following the salutary doctrine of stare decisis et non quieta movere, which means to adhere to precedents, and not to unsettle
things which are established.48 Under the doctrine, "[w]hen the court has once laid down a principle of law as applicable to a certain
state of facts, it will adhere to that principle and apply it to all future cases where facts are substantially the same."49 It enjoins
adherence to judicial precedents and bars relitigation of the same issue. 50cralawrednad

It may not be amiss to add that as early as 2010, the year when Balua filed a petition to disqualify him, Arnado has gotten wind that
the use of his US passport might pose a problem to his candidacy. In other words, when Arnado filed his CoC on October 1, 2012,
he was not totally unaware that the use of his US passport after he had executed the Affidavit of Renunciation might have an impact
on his qualification and candidacy. In fact, at that time, Maquiling had already reached this Court. But despite the petitions filed
against him questioning his qualification to run for public office in 2010, Arnado filed his CoC on October 1, 2012 unmindful of any
possible legal setbacks in his candidacy for the 2013 elections and without executing another Affidavit of Renunciation. In short, the
argument that Arnado should be given the opportunity to correct the deficiency in his CoC since Maquiling was promulgated after
the lapse of the period for filing a CoC for the 2013 elections, is totally bereft of merit. Consistent with our April 16, 2013 ruling
in Maquiling, Arnado should be made to face the consequences of his inaction since he could have remedied it at the time he filed
his CoC on October 1, 2012 or even before that. There is no law prohibiting him from executing an Affidavit of Renunciation every
election period if only to avert possible questions about his qualifications.

The alleged November 30, 2009

Affidavit of Renunciation with Oath of
Allegiance cannot be given any
probative weight.

As to the alleged recently discovered November 30, 2009 Affidavit of Renunciation with Oath of Allegiance, the same is highly
suspect. As correctly pointed out by the Solicitor General, the original or certified true copy thereof was not presented. In addition,
such crucial evidence sufficient to alter the outcome of the case was never presented before the Comelec much less in
the Maquiling case. Curiously, it only surfaced for the first time in this petition. In Jacot v. Dal,51 this Court disallowed the belated
presentation of similar evidence on due process considerations. Thus:ChanRoblesvirtualLawlibrary

As a rule, no question will be entertained on appeal unless it has been raised in the proceedings below. Points of law, theories,
issues and arguments not brought to the attention of the lower court, administrative agency or quasi- judicial body need not be
considered by a reviewing court, as they cannot be raised for the first time at that late stage. Basic considerations of fairness and
due process impel this rule. Courts have neither the time nor the resources to accommodate parties who chose to go to trial
haphazardly.

Likewise, this Court does not countenance the late submission of evidence. Petitioner should have offered the Affidavit dated 7
February 2007 during the proceedings before the COMELEC.

Section 1 of Rule 43 of the COMELEC Rules of Procedure provides that "In the absence of any applicable provisions of these
Rules, the pertinent provisions of the Rules of Court in the Philippines shall be applicable by analogy or in suppletory character and
effect." Section 34 of Rule 132 of the Revised Rules of Court categorically enjoins the admission of evidence not formally
presented:cralawlawlibrary
SEC. 34. Offer of evidence.- The court shall consider no evidence which has not been formally offered. The purpose for which the
evidence is offered must be specified.

Since the said Affidavit was not formally offered before the COMELEC, respondent had no opportunity to examine and controvert it.
To admit this document would be contrary to due process. Additionally, the piecemeal presentation of evidence is not in accord with
orderly justice.52

Moreover, in Maquiling it was mentioned that Arnado used his US passport on January 12, 2010 and March 23, 2010.
Thus:ChanRoblesvirtualLawlibrary

Balua likewise presented a certification from the Bureau of Immigration dated 23 April 201 0, certifying that the name "Arnado,
Rommel Cagoco" appears in the available Computer Database/Passenger manifest/IBM listing on file as of 21 April 2010, with the
following pertinent travel records:ChanRoblesvirtualLawlibrary

DATE OF Arrival:01/12/2010
NATIONALITY :USA-AMERICAN
PASSPORT :057782700
DATE OF Arrival:03/23/2010
NATIONALITY :USA-AMERICAN
PASSPORT :05778270053
Despite the existence of such statement in Maquiling, We are puzzled why Arnado never bothered to correct or refute it. He neither
alleged nor presented evidence in this petition to prove that he did not travel abroad on those dates using his US passport.

Justice Marvic M.V.F. Leonen, however, dissents and maintains the same position he had taken in Maquiling that Arnado's use of
his US passport in 2009 is an isolated act justified by the circumstances at that time. At any rate, Arnado started to use his
Philippine passport in his travels abroad beginning December 11, 2009 and thenceforth. This, according to J. Leonen, is borne out
by Arnado's Philippine passport.

With due respect to my esteemed colleague, it appears that J. Leonen is not only reviving an issue that had already been settled
with finality in the Maquiling case, but he is also going beyond the issues raised in this petition. To reiterate for clarity, Arnado's
argument in this case-that he is qualified to run for mayor as he has satisfied the requirements of Sec. 5(2) of RA 9225 relative to
the May 13, 2013 elections- is premised only on the alleged newly discovered November 30, 2009 Affidavit. Nothing more. He does
not claim in this case that his use of US passport in his travel abroad in 2009 is an isolated act, as J. Leonen insists. In Vazquez v.
De Borja,54 it was held that courts do not have jurisdiction over issues neither raised in the pleading nor tried with the express or
implied consent of the parties. They cannot render judgment based on issues that have never been raised before them. Equally
settled is the rule that "points of law, theories, issues, and arguments not brought to the attention of the lower [tribunal] need not be,
and ordinarily will not be, considered by a reviewing court, as these cannot be raised for the first time at such late stage. Basic
considerations of due process underlie this rule."55 The same goes true with J. Brion's theory that what was cancelled by virtue
of Maquiling was only the April 3, 2009 Affidavit of Renunciation where Arnado expressly renounced any foreign citizenship; not the
July 10, 2008 Oath of Allegiance which carried with it an implied abdication of foreign citizenship. For J. Brion, "[t]he requirement of
an express renunciation x x x does not negate the effect of, or make any less real, the prior implicit renunciation of citizenship and
allegiance made upon taking the oath of allegiance." Again, this was never raised in this petition. At any rate, the execution of an
Oath of Allegiance is required by Section 356 of RA 9225. For those who avail themselves of RA 9225 and intend to run for public
office, Section 5(2) thereof provides the additional requirement of making a personal and sworn renunciation of any and all foreign
citizenships prior to or at the time of filing of their CoC. Definitely, the provisions of Section 5(2) are not useless or meaningless
surplusage. When the law expressly requires an explicit renunciation, an implicit one would be insufficient. Furthermore, even
assuming that Arnado's 2008 implied renunciation is sufficient, the same has also been negated by his use of his US passport in
2009, following the ruling in Maquiling.

Otherwise, we would give more weight to an implied renunciation than to an express one specifically required by law.

Besides, the Decision of this Court in Maquiling holding that Arnado's use of his US passport effectively recanted his Affidavit of
Renunciation has already become final and immutable. We can no longer resurrect in this case the issues that have already been
resolved there with fmality.

In maintaining that Arnado used his Philippine passport in travelling abroad in the first quarter of 2010, J. Leonen relies on the copy
thereof attached to the rollo of the Maquiling case. But said copy of Arnado's Philippine passport57 is a mere "CERTIFIED TRUE
COPY FROM THE MACIDNE COPY ON FILE" as attested to by Rosario P. Palacio, Records Officer Ill of the Comelec.58 This is
clearly stamped on aforesaid copy of Arnado's Philippine passport. A machine copy or photocopy is a mere secondary
evidence.59 As such, it cannot be admitted in evidence until and unless the offeror has proven the due execution and the
subsequent loss or unavailability of the original.60 In this case, however, Arnado's Philippine passport is not missing. Thus, said
photocopy of Arnado's Philippine passport cannot sway us to depart from the uncontroverted certification of the Bureau
ofimmigration that Arnado used his US passport on January 12, 2010 and March 23, 2010. Consequently, even assuming that the
recently discovered November 30, 2009 Affidavit of Renunciation with Oath of Allegiance is true and authentic, Arnado once more
performed positive acts on January 12, 2010 and March 23, 2010, which effectively negated the alleged November 30, 2009
Affidavit resulting in his disqualification to run for an elective public office.

Landslide election victory cannot

override eligibility requirements.

In Maquiling, this Court emphasized that popular vote does not cure the ineligibility of a candidate. Thus, while in this case Arnado
won by landslide majority during the 2013 elections, garnering 84% of the total votes cast, the same "cannot override the
constitutional and statutory requirements for qualifications and disqualifications." 61 In Velasco v. Comelec,62 this Court pronounced
that election victory cannot be used as a magic formula to bypass election eligibility requirements; otherwise, certain provisions of
laws pertaining to elections will become toothless. One of which is Section 39 of the Local Government Code of 1991, which
specifies the basic positive qualifications of local government officials. If in Velasco the Court ruled that popular vote cannot override
the required qualifications under Section 39,63a fortiori, there is no reason why the Court should not follow the same policy when it
comes to disqualifications enumerated under Section 4064 of the same law. After all, "[t]he qualifications set out in [Section 39] are
roughly half of the requirements for election to local public offices. The other half is contained in the succeeding section which lays
down the circumstances that disqualify local candidates."65cralawrednad

Finally, this case is strikingly similar to the case of Lopez v. Comelec.66 In that case, petitioner Lopez was also a natural-born Filipino
who lost his Philippine citizenship after he became a naturalized US citizen. He later reacquired his Philippine citizenship by virtue of
RA 9225. Thereafter, Lopez filed his candidacy for Chairman of Barangay Bagacay, San Dionisio, Iloilo in the
synchronized Barangay and Sangguniang Kabataan Elections held on October 29, 2007 without first making a personal and sworn
renunciation of his foreign citizenship. In spite of the fact that Lopez won in the elections, this Court still affmned the Resolution of
the Comelec disqualifying Lopez as a candidate for a local elective position for his failure to comply with the requirements of Section
5(2) of RA 9225. Thus:ChanRoblesvirtualLawlibrary

While it is true that petitioner won the elections, took his oath and began to discharge the functions of Barangay Chairman, his
victory cannot cure the defect of his candidacy. Garnering the most number of votes does not validate the election of a disqualified
candidate because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity.67

In fine, this Court finds no grave abuse of discretion on the part of the Comelec En Banc in sustaining the Resolution of the Comelec
Second Division disqualifying Arnado from running in the May 13, 2013 elections and in accordingly setting aside his proclamation
as elected mayor of Kauswagan, Lanao del Norte and proclaiming Capitan as the duly elected mayor of said municipality.

WHEREFORE, the instant Petition is hereby DISMISSED and the assailed Comelec Resolutions are AFFIRMED. The Status Quo
Ante Order issued by this Court is LIFTED.

SO ORDERED.chanrobles virtuallawlibrary

DUAL CITIZENSHIP AND OTHER CONSTITUTIONAL RIGHTS

G.R. No. 195649 April 16, 2013

CASAN MACODE MAQUILING, Petitioner,

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

DECISION

SERENO, CJ.:

THE CASE

This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of the Rules of Court to review the Resolutions of the
Commission on Elections (COMELEC). The Resolution1 in SPA No. 10-1 09(DC) of the COMELEC First Division dated 5 October
201 0 is being assailed for applying Section 44 of the Local Government Code while the Resolution 2 of the COMELEC En Banc
dated 2 February 2011 is being questioned for finding that respondent Rommel Arnado y Cagoco (respondent Arnado/Arnado) is
solely a Filipino citizen qualified to run for public office despite his continued use of a U.S. passport.

FACTS

Respondent Arnado is a natural born Filipino citizen.3 However, as a consequence of his subsequent naturalization as a citizen of
the United States of America, he lost his Filipino citizenship. Arnado applied for repatriation under Republic Act (R.A.) No. 9225
before the Consulate General of the Philippines in San Franciso, USA and took the Oath of Allegiance to the Republic of the
Philippines on 10 July 2008.4 On the same day an Order of Approval of his Citizenship Retention and Re-acquisition was issued in
his favor.5

The aforementioned Oath of Allegiance states:

I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the Constitution of the Republic of the Philippines and
obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines and I hereby declare that I
recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose
this obligation upon myself voluntarily without mental reservation or purpose of evasion. 6

On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit of Renunciation of his foreign
citizenship, which states:

I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce all allegiance and fidelity to the UNITED
STATES OF AMERICA of which I am a citizen, and I divest myself of full employment of all civil and political rights and privileges of
the United States of America.

I solemnly swear that all the foregoing statement is true and correct to the best of my knowledge and belief. 7

On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del Norte, which contains, among
others, the following statements:

I am a natural born Filipino citizen / naturalized Filipino citizen.

I am not a permanent resident of, or immigrant to, a foreign country.

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

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

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

On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition to disqualify Arnado and/or to
cancel his certificate of candidacy for municipal mayor of Kauswagan, Lanao del Norte in connection with the 10 May 2010 local and
national elections.9

Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that he is a foreigner, attaching
thereto a certification issued by the Bureau of Immigration dated 23 April 2010 indicating the nationality of Arnado as "USA-
American."10To further bolster his claim of Arnado’s US citizenship, Balua presented in his Memorandum a computer-generated
travel record11 dated 03 December 2009 indicating that Arnado has been using his US Passport No. 057782700 in entering and
departing the Philippines. The said record shows that Arnado left the country on 14 April 2009 and returned on 25 June 2009, and
again departed on 29 July 2009, arriving back in the Philippines on 24 November 2009.

Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010, certifying that the name "Arnado,
Rommel Cagoco" appears in the available Computer Database/Passenger manifest/IBM listing on file as of 21 April 2010, with the
following pertinent travel records:

DATE OF Arrival : 01/12/2010

NATIONALITY : USA-AMERICAN
 PASSPORT : 057782700

DATE OF Arrival : 03/23/2010

NATIONALITY : USA-AMERICAN

PASSPORT : 05778270012

On 30 April 2010, the COMELEC (First Division) issued an Order13 requiring the respondent to personally file his answer and
memorandum within three (3) days from receipt thereof.

After Arnado failed to answer the petition, Balua moved to declare him in default and to present evidence ex-parte.

Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado garnered the highest number of votes
and was subsequently proclaimed as the winning candidate for Mayor of Kauswagan, Lanao del Norte.

It was only after his proclamation that Arnado filed his verified answer, submitting the following documents as evidence: 14

1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated 03 April 2009;

2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio Daligdig, and Jessy Corpin, all
neighbors of Arnado, attesting that Arnado is a long-time resident of Kauswagan and that he has been conspicuously and
continuously residing in his family’s ancestral house in Kauswagan;

3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated 03 June 2010 stating that
Arnado is a bona fide resident of his barangay and that Arnado went to the United States in 1985 to work and returned to
the Philippines in 2009;

4. Certification dated 31 May 2010 from the Municipal Local Government Operations Office of Kauswagan stating that Dr.
Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from January 1964 to June 1974 and from 15 February 1979 to
15 April 1986; and

5. Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has been a registered voter of
Kauswagan since 03 April 2009.

THE RULING OF THE COMELEC FIRST DIVISION

Instead of treating the Petition as an action for the cancellation of a certificate of candidacy based on misrepresentation, 15 the
COMELEC First Division considered it as one for disqualification. Balua’s contention that Arnado is a resident of the United States
was dismissed upon the finding that "Balua failed to present any evidence to support his contention," 16 whereas the First Division
still could "not conclude that Arnado failed to meet the one-year residency requirement under the Local Government Code."17

In the matter of the issue of citizenship, however, the First Division disagreed with Arnado’s claim that he is a Filipino citizen.18

We find that although Arnado appears to have substantially complied with the requirements of R.A. No. 9225, Arnado’s act of
consistently using his US passport after renouncing his US citizenship on 03 April 2009 effectively negated his Affidavit of
Renunciation.

xxxx

Arnado’s continued use of his US passport is a strong indication that Arnado had no real intention to renounce his US citizenship
and that he only executed an Affidavit of Renunciation to enable him to run for office. We cannot turn a blind eye to the glaring
inconsistency between Arnado’s unexplained use of a US passport six times and his claim that he re-acquired his Philippine
citizenship and renounced his US citizenship. As noted by the Supreme Court in the Yu case, "a passport is defined as an official
document of identity and nationality issued to a person intending to travel or sojourn in foreign countries." Surely, one who truly
divested himself of US citizenship would not continue to avail of privileges reserved solely for US nationals.19

The dispositive portion of the Resolution rendered by the COMELEC

First Division reads:

WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel the certificate of candidacy of Rommel C.
Arnado is hereby GRANTED. Rommel C. Arnado’s proclamation as the winning candidate for Municipal Mayor of Kauswagan,
Lanao del Nore is hereby ANNULLED. Let the order of succession under Section 44 of the Local Government Code of 1991 take
effect.20

The Motion for Reconsideration and

the Motion for Intervention

Arnado sought reconsideration of the resolution before the COMELEC En Banc on the ground that "the evidence is insufficient to
justify the Resolution and that the said Resolution is contrary to law."21 He raised the following contentions:22

1. The finding that he is not a Filipino citizen is not supported by the evidence consisting of his Oath of Allegiance and the
Affidavit of Renunciation, which show that he has substantially complied with the requirements of R.A. No. 9225;

2. The use of his US passport subsequent to his renunciation of his American citizenship is not tantamount to a
repudiation of his Filipino citizenship, as he did not perform any act to swear allegiance to a country other than the
Philippines;

3. He used his US passport only because he was not informed of the issuance of his Philippine passport, and that he
used his Philippine passport after he obtained it;

4. Balua’s petition to cancel the certificate of candidacy of Arnado was filed out of time, and the First Division’s treatment
of the petition as one for disqualification constitutes grave abuse of discretion amounting to excess of jurisdiction; 23

5. He is undoubtedly the people’s choice as indicated by his winning the elections;

6. His proclamation as the winning candidate ousted the COMELEC from jurisdiction over the case; and

7. The proper remedy to question his citizenship is through a petition for quo warranto, which should have been filed
within ten days from his proclamation.

Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and who garnered the second highest
number of votes in the 2010 elections, intervened in the case and filed before the COMELEC En Banc a Motion for Reconsideration
together with an Opposition to Arnado’s Amended Motion for Reconsideration. Maquiling argued that while the First Division
correctly disqualified Arnado, the order of succession under Section 44 of the Local Government Code is not applicable in this case.
Consequently, he claimed that the cancellation of Arnado’s candidacy and the nullification of his proclamation, Maquiling, as the
legitimate candidate who obtained the highest number of lawful votes, should be proclaimed as the winner.

Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his Motion for Reconsideration. Arnado
opposed all motions filed by Maquiling, claiming that intervention is prohibited after a decision has already been rendered, and that
as a second-placer, Maquiling undoubtedly lost the elections and thus does not stand to be prejudiced or benefitted by the final
adjudication of the case.

RULING OF THE COMELEC EN BANC

In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6 of Republic Act No. 6646, the Commission
"shall continue with the trial and hearing of the action, inquiry or protest even after the proclamation of the candidate whose
qualifications for office is questioned."

As to Maquiling’s intervention, the COMELEC En Banc also cited Section 6 of R.A. No. 6646 which allows intervention in
proceedings for disqualification even after elections if no final judgment has been rendered, but went on further to say that
Maquiling, as the second placer, would not be prejudiced by the outcome of the case as it agrees with the dispositive portion of the
Resolution of the First Division allowing the order of succession under Section 44 of the Local Government Code to take effect.

The COMELEC En Banc agreed with the treatment by the First Division of the petition as one for disqualification, and ruled that the
petition was filed well within the period prescribed by law, 24 having been filed on 28 April 2010, which is not later than 11 May 2010,
the date of proclamation.

However, the COMELEC En Banc reversed and set aside the ruling of the First Division and granted Arnado’s Motion for
Reconsideration, on the following premises:
First:

By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced his Philippine citizenship as though he
never became a citizen of another country. It was at that time, April 3, 2009, that the respondent became a pure Philippine Citizen
again.

xxxx

The use of a US passport … does not operate to revert back his status as a dual citizen prior to his renunciation as there is no law
saying such. More succinctly, the use of a US passport does not operate to "un-renounce" what he has earlier on renounced. The
First Division’s reliance in the case of In Re: Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The
petitioner in the said case is a naturalized citizen who, after taking his oath as a naturalized Filipino, applied for the renewal of his
Portuguese passport. Strict policy is maintained in the conduct of citizens who are not natural born, who acquire their citizenship by
choice, thus discarding their original citizenship. The Philippine State expects strict conduct of allegiance to those who choose to be
its citizens. In the present case, respondent is not a naturalized citizen but a natural born citizen who chose greener pastures by
working abroad and then decided to repatriate to supposedly help in the progress of Kauswagan. He did not apply for a US passport
after his renunciation. Thus the mentioned case is not on all fours with the case at bar.

xxxx

The respondent presented a plausible explanation as to the use of his US passport. Although he applied for a Philippine passport,
the passport was only issued on June 18, 2009. However, he was not notified of the issuance of his Philippine passport so that he
was actually able to get it about three (3) months later. Yet as soon as he was in possession of his Philippine passport, the
respondent already used the same in his subsequent travels abroad. This fact is proven by the respondent’s submission of a
certified true copy of his passport showing that he used the same for his travels on the following dates: January 31, 2010, April 16,
2010, May 20, 2010, January 12, 2010, March 31, 2010 and June 4, 2010. This then shows that the use of the US passport was
because to his knowledge, his Philippine passport was not yet issued to him for his use. As probably pressing needs might be
undertaken, the respondent used whatever is within his control during that time. 25

In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the use of foreign passport is not one of the
grounds provided for under Section 1 of Commonwealth Act No. 63 through which Philippine citizenship may be lost.

"The application of the more assimilative principle of continuity of citizenship is more appropriate in this case. Under said principle,
once a person becomes a citizen, either by birth or naturalization, it is assumed that he desires to continue to be a citizen, and this
assumption stands until he voluntarily denationalizes or expatriates himself. Thus, in the instant case respondent after reacquiring
his Philippine citizenship should be presumed to have remained a Filipino despite his use of his American passport in the absence
of clear, unequivocal and competent proof of expatriation. Accordingly, all doubts should be resolved in favor of retention of
citizenship."26

On the other hand, Commissioner Rene V. Sarmiento dissented, thus:

Respondent evidently failed to prove that he truly and wholeheartedly abandoned his allegiance to the United States. The latter’s
continued use of his US passport and enjoyment of all the privileges of a US citizen despite his previous renunciation of the afore-
mentioned citizenship runs contrary to his declaration that he chose to retain only his Philippine citizenship. Respondent’s
submission with the twin requirements was obviously only for the purpose of complying with the requirements for running for the
mayoralty post in connection with the May 10, 2010 Automated National and Local Elections.

Qualifications for elective office, such as citizenship, are continuing requirements; once any of them is lost during his incumbency,
title to the office itself is deemed forfeited. If a candidate is not a citizen at the time he ran for office or if he lost his citizenship after
his election to office, he is disqualified to serve as such. Neither does the fact that respondent obtained the plurality of votes for the
mayoralty post cure the latter’s failure to comply with the qualification requirements regarding his citizenship.

Since a disqualified candidate is no candidate at all in the eyes of the law, his having received the highest number of votes does not
validate his election. It has been held that where a petition for disqualification was filed before election against a candidate but was
adversely resolved against him after election, his having obtained the highest number of votes did not make his election valid. His
ouster from office does not violate the principle of vox populi suprema est lex because the application of the constitutional and
statutory provisions on disqualification is not a matter of popularity. To apply it is to breath[e] life to the sovereign will of the people
who expressed it when they ratified the Constitution and when they elected their representatives who enacted the law. 27

THE PETITION BEFORE THE COURT

Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run for public office despite his continued
use of a US passport, and praying that Maquiling be proclaimed as the winner in the 2010 mayoralty race in Kauswagan, Lanao del
Norte.

Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC En Banc for ruling that Arnado is a
Filipino citizen despite his continued use of a US passport, Maquiling now seeks to reverse the finding of the COMELEC En Banc
that Arnado is qualified to run for public office.

Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First Division’s disqualification of Arnado,
Maquiling also seeks the review of the applicability of Section 44 of the Local Government Code, claiming that the COMELEC
committed reversible error in ruling that "the succession of the vice mayor in case the respondent is disqualified is in order."

There are three questions posed by the parties before this Court which will be addressed seriatim as the subsequent questions
hinge on the result of the first.

The first question is whether or not intervention is allowed in a disqualification case.

The second question is whether or not the use of a foreign passport after renouncing foreign citizenship amounts to undoing a
renunciation earlier made.

A better framing of the question though should be whether or not the use of a foreign passport after renouncing foreign citizenship
affects one’s qualifications to run for public office.

The third question is whether or not the rule on succession in the Local Government Code is applicable to this case.

OUR RULING

Intervention of a rival candidate in a

disqualification case is proper when
there has not yet been any
proclamation of the winner.

Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed a Motion for Reconsideration of the First
Division Resolution before the COMELEC En Banc. As the candidate who garnered the second highest number of votes, Maquiling
contends that he has an interest in the disqualification case filed against Arnado, considering that in the event the latter is
disqualified, the votes cast for him should be considered stray and the second-placer should be proclaimed as the winner in the
elections.

It must be emphasized that while the original petition before the COMELEC is one for cancellation of the certificate of candidacy and
/ or disqualification, the COMELEC First Division and the COMELEC En Banc correctly treated the petition as one for
disqualification.

The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:

Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is
strong.

Mercado v. Manzano28

clarified the right of intervention in a disqualification case. In that case, the Court said:

That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear
from Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: Any candidate who has
been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of guilt is strong. Under this provision, intervention may be allowed in
proceedings for disqualification even after election if there has yet been no final judgment rendered. 29

Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc has already ruled that Maquiling
has not shown that the requisites for the exemption to the second-placer rule set forth in Sinsuat v. COMELEC30 are present and
therefore would not be prejudiced by the outcome of the case, does not deprive Maquiling of the right to elevate the matter before
this Court.

Arnado’s claim that the main case has attained finality as the original petitioner and respondents therein have not appealed the
decision of the COMELEC En Banc, cannot be sustained. The elevation of the case by the intervenor prevents it from attaining
finality. It is only after this Court has ruled upon the issues raised in this instant petition that the disqualification case originally filed
by Balua against Arnado will attain finality.

The use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of representation as
to one’s nationality and citizenship; it does not divest Filipino citizenship regained by repatriation but it recants the Oath
of Renunciation required to qualify one to run for an elective position.

Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:

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

xxxx

(2)Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of
any and all foreign before any public officer authorized to administer an oath.

x x x31

Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of Allegiance and renounced his
foreign citizenship. There is no question that after performing these twin requirements required under Section 5(2) of R.A. No. 9225
or the Citizenship Retention and Re-acquisition Act of 2003, he became eligible to run for public office.

Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when he applied for repatriation
before the Consulate General of the Philippines in San Francisco, USA, and again on 03 April 2009 simultaneous with the execution
of his Affidavit of Renunciation. By taking the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At
the time, however, he likewise possessed American citizenship. Arnado had therefore become a dual citizen.

After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing an Affidavit of Renunciation,
thus completing the requirements for eligibility to run for public office.

By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the effect of such renunciation
under the laws of the foreign country.32

However, this legal presumption does not operate permanently and is open to attack when, after renouncing the foreign citizenship,
the citizen performs positive acts showing his continued possession of a foreign citizenship. 33

Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign citizenship, he continued to use his
US passport to travel in and out of the country before filing his certificate of candidacy on 30 November 2009. The pivotal question
to determine is whether he was solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby
rendering him eligible to run for public office.

Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the date he filed his COC, he used
his US passport four times, actions that run counter to the affidavit of renunciation he had earlier executed. By using his foreign
passport, Arnado positively and voluntarily represented himself as an American, in effect declaring before immigration authorities of
both countries that he is an American citizen, with all attendant rights and privileges granted by the United States of America.

The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day.
It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights
granted by the foreign country which granted the citizenship.
Mercado v. Manzano34 already hinted at this situation when the Court declared:

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there are
enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v.
Defensor-Santiago, we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a
naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad
that he was a Portuguese national. A similar sanction can be taken against anyone who, in electing Philippine citizenship,
renounces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship.

While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No. 63 constituting renunciation
and loss of Philippine citizenship,35 it is nevertheless an act which repudiates the very oath of renunciation required for a former
Filipino citizen who is also a citizen of another country to be qualified to run for a local elective position.

When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his American citizenship, he recanted
his Oath of Renunciation36 that he "absolutely and perpetually renounce(s) all allegiance and fidelity to the UNITED STATES OF
AMERICA"37 and that he "divest(s) himself of full employment of all civil and political rights and privileges of the United States of
America."38

We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his Filipino citizenship,
which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily and effectively
reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented
himself as an American citizen by using his US passport.

This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid for public office, as it effectively
imposed on him a disqualification to run for an elective local position.

Arnado’s category of dual citizenship is that by which foreign citizenship is acquired through a positive act of applying for
naturalization. This is distinct from those considered dual citizens by virtue of birth, who are not required by law to take the oath of
renunciation as the mere filing of the certificate of candidacy already carries with it an implied renunciation of foreign
citizenship.39 Dual citizens by naturalization, on the other hand, are required to take not only the Oath of Allegiance to the Republic
of the Philippines but also to personally renounce foreign citizenship in order to qualify as a candidate for public office.

By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen enjoying the rights and privileges
of Filipino and American citizenship. He was qualified to vote, but by the express disqualification under Section 40(d) of the Local
Government Code,40 he was not qualified to run for a local elective position.

In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or from 3 April 2009 until 14 April
2009, on which date he first used his American passport after renouncing his American citizenship.

This Court has previously ruled that:

Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or
assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably
challenged. x x x.41

The citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time of the
renunciation of the foreign citizenship but continuously. Any act which violates the oath of renunciation opens the citizenship issue to
attack.

We agree with the pronouncement of the COMELEC First Division that "Arnado’s act of consistently using his US passport
effectively negated his "Affidavit of Renunciation."42 This does not mean, that he failed to comply with the twin requirements under
R.A. No. 9225, for he in fact did.

It was after complying with the requirements that he performed positive acts which effectively disqualified him from running for an
elective public office pursuant to Section 40(d) of the Local Government Code of 1991.

The purpose of the Local Government Code in disqualifying dual citizens from running for any elective public office would be
thwarted if we were to allow a person who has earlier renounced his foreign citizenship, but who subsequently represents himself as
a foreign citizen, to hold any public office.

Arnado justifies the continued use of his US passport with the explanation that he was not notified of the issuance of his Philippine
passport on 18 June 2009, as a result of which he was only able to obtain his Philippine passport three (3) months later. 43
The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national who sought naturalization as a Filipino citizen
and later applied for the renewal of his Portuguese passport. That Arnado did not apply for a US passport after his renunciation
does not make his use of a US passport less of an act that violated the Oath of Renunciation he took. It was still a positive act of
representation as a US citizen before the immigration officials of this country.

The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in possession of his Philippine passport, the
respondent already used the same in his subsequent travels abroad." 44 We cannot agree with the COMELEC. Three months from
June is September. If indeed, Arnado used his Philippine passport as soon as he was in possession of it, he would not have used
his US passport on 24 November 2009.

Besides, Arnado’s subsequent use of his Philippine passport does not correct the fact that after he renounced his foreign citizenship
and prior to filing his certificate of candidacy, he used his US passport. In the same way that the use of his foreign passport does not
undo his Oath of Renunciation, his subsequent use of his Philippine passport does not undo his earlier use of his US passport.

Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and political rights accorded by the
state to its citizens. It likewise demands the concomitant duty to maintain allegiance to one’s flag and country. While those who
acquire dual citizenship by choice are afforded the right of suffrage, those who seek election or appointment to public office are
required to renounce their foreign citizenship to be deserving of the public trust. Holding public office demands full and undivided
allegiance to the Republic and to no other.

We therefore hold that Arnado, by using his US passport after renouncing his American citizenship, has recanted the same Oath of
Renunciation he took. Section 40(d) of the Local Government Code applies to his situation. He is disqualified not only from holding
the public office but even from becoming a candidate in the May 2010 elections.

We now resolve the next issue.

Resolving the third issue necessitates revisiting Topacio v. Paredes45 which is the jurisprudential spring of the principle that a
second-placer cannot be proclaimed as the winner in an election contest. This doctrine must be re-examined and its soundness
once again put to the test to address the ever-recurring issue that a second-placer who loses to an ineligible candidate cannot be
proclaimed as the winner in the elections.

The Facts of the case are as follows:

On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the office of municipal president. The
petitioner, Felipe Topacio, and the respondent, Maximo Abad, were opposing candidates for that office. Topacio received 430 votes,
and Abad 281. Abad contested the election upon the sole ground that Topacio was ineligible in that he was reelected the second
time to the office of the municipal president on June 4, 1912, without the four years required by Act No. 2045 having intervened. 46

Abad thus questioned the eligibility of To p a c i o on the basis of a statutory prohibition for seeking a second re-election absent the
four year interruption.

The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot be transferred from an ineligible candidate to
any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots." 47

This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing "the effect of a decision that a
candidate is not entitled to the office because of fraud or irregularities in the elections x x x with that produced by declaring a person
ineligible to hold such an office."

The complete sentence where the phrase is found is part of a comparison and contrast between the two situations, thus:

Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections is quite
different from that produced by declaring a person ineligible to hold such an office. In the former case the court, after an examination
of the ballots may find that some other person than the candidate declared to have received a plurality by the board of canvassers
actually received the greater number of votes, in which case the court issues its mandamus to the board of canvassers to correct
the returns accordingly; or it may find that the manner of holding the election and the returns are so tainted with fraud or illegality
that it cannot be determined who received a plurality of the legally cast ballots. In the latter case, no question as to the correctness
of the returns or the manner of casting and counting the ballots is before the deciding power, and generally the only result can be
that the election fails entirely. In the former, we have a contest in the strict sense of the word, because of the opposing parties are
striving for supremacy. If it be found that the successful candidate (according to the board of canvassers) obtained a plurality in an
illegal manner, and that another candidate was the real victor, the former must retire in favor of the latter. In the other case, there is
not, strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible candidate to any other candidate
when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. In the one case the question is as to
who received a plurality of the legally cast ballots; in the other, the question is confined to the personal character and circumstances
of a single individual.48 (Emphasis supplied)

Note that the sentence where the phrase is found starts with "In the other case, there is not, strictly speaking, a contest" in contrast
to the earlier statement, "In the former, we have a contest in the strict sense of the word, because of the opposing parties are
striving for supremacy."

The Court in Topacio v. Paredes cannot be said to have held that "the wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots."

A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is without jurisdiction to try a
disqualification case based on the eligibility of the person who obtained the highest number of votes in the election, its jurisdiction
being confined "to determine which of the contestants has been duly elected" the judge exceeded his jurisdiction when he "declared
that no one had been legally elected president of the municipality of Imus at the general election held in that town on 4 June 1912"
where "the only question raised was whether or not Topacio was eligible to be elected and to hold the office of municipal president."

The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be proclaimed in his stead. The
Court therein ruled:

For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his jurisdiction in declaring in
those proceedings that no one was elected municipal president of the municipality of Imus at the last general election; and that said
order and all subsequent proceedings based thereon are null and void and of no effect; and, although this decision is rendered on
respondents' answer to the order to show cause, unless respondents raised some new and additional issues, let judgment be
entered accordingly in 5 days, without costs. So ordered.49

On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to stand on. It was a mere
pronouncement of the Court comparing one process with another and explaining the effects thereof. As an independent statement, it
is even illogical.

Let us examine the statement:

"x x x the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast ballots."

What prevents the transfer of the wreath of victory from the ineligible candidate to another candidate?

When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of the legally cast ballots and
ineligibility is thereafter established, what stops the Court from adjudging another eligible candidate who received the next highest
number of votes as the winner and bestowing upon him that "wreath?"

An ineligible candidate who receives the highest number of votes is a wrongful winner. By express legal mandate, he could not even
have been a candidate in the first place, but by virtue of the lack of material time or any other intervening circumstances, his
ineligibility might not have been passed upon prior to election date. Consequently, he may have had the opportunity to hold himself
out to the electorate as a legitimate and duly qualified candidate. However, notwithstanding the outcome of the elections, his
ineligibility as a candidate remains unchanged. Ineligibility does not only pertain to his qualifications as a candidate but necessarily
affects his right to hold public office. The number of ballots cast in his favor cannot cure the defect of failure to qualify with the
substantive legal requirements of eligibility to run for public office.

The popular vote does not cure the

ineligibility of a candidate.

The ballot cannot override the constitutional and statutory requirements for qualifications and disqualifications of candidates. When
the law requires certain qualifications to be possessed or that certain disqualifications be not possessed by persons desiring to
serve as elective public officials, those qualifications must be met before one even becomes a candidate. When a person who is not
qualified is voted for and eventually garners the highest number of votes, even the will of the electorate expressed through the ballot
cannot cure the defect in the qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very law that
sets forth the qualifications and disqualifications of candidates. We might as well write off our election laws if the voice of the
electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions in our republic.

This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC50 when we pronounced:
x x x. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public
office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the
electorate alone.

The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in
this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If
a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing
all fealty and fidelity to any other state.51 (Emphasis supplied)

This issue has also been jurisprudentially clarified in Velasco v. COMELEC52 where the Court ruled that the ruling in Quizon and
Saya-ang cannot be interpreted without qualifications lest "Election victory x x x becomes a magic formula to bypass election
eligibility requirements."53

We have ruled in the past that a candidate’s victory in the election may be considered a sufficient basis to rule in favor of the
candidate sought to be disqualified if the main issue involves defects in the candidate’s certificate of candidacy. We said that while
provisions relating to certificates of candidacy are mandatory in terms, it is an established rule of interpretation as regards election
laws, that mandatory provisions requiring certain steps before elections will be construed as directory after the elections, to give
effect to the will of the people. We so ruled in Quizon v. COMELEC and Saya-ang v. COMELEC:

The present case perhaps presents the proper time and opportunity to fine-tune our above ruling. We say this with the realization
that a blanket and unqualified reading and application of this ruling can be fraught with dangerous significance for the rule of law and
the integrity of our elections. For one, such blanket/unqualified reading may provide a way around the law that effectively negates
election requirements aimed at providing the electorate with the basic information to make an informed choice about a candidate’s
eligibility and fitness for office.

The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC which specifies the basic
qualifications of local government officials. Equally susceptive of being rendered toothless is Section 74 of the OEC that sets out
what should be stated in a COC. Section 78 may likewise be emasculated as mere delay in the resolution of the petition to cancel or
deny due course to a COC can render a Section 78 petition useless if a candidate with false COC data wins. To state the obvious,
candidates may risk falsifying their COC qualifications if they know that an election victory will cure any defect that their COCs may
have. Election victory then becomes a magic formula to bypass election eligibility requirements. (Citations omitted)

What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing any disqualification, and employing
every strategy to delay any disqualification case filed against him so he can submit himself to the electorate and win, if winning the
election will guarantee a disregard of constitutional and statutory provisions on qualifications and disqualifications of candidates?

It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring that its exercise respects the rule
of law. To allow the sovereign voice spoken through the ballot to trump constitutional and statutory provisions on qualifications and
disqualifications of candidates is not democracy or republicanism. It is electoral anarchy. When set rules are disregarded and only
the electorate’s voice spoken through the ballot is made to matter in the end, it precisely serves as an open invitation for electoral
anarchy to set in.1âwphi1

Maquiling is not a second-placer as

he obtained the highest number of
votes from among the qualified
candidates.

With Arnado’s disqualification, Maquiling then becomes the winner in the election as he obtained the highest number of votes from
among the qualified candidates.

We have ruled in the recent cases of Aratea v. COMELEC54 and Jalosjos v. COMELEC55 that a void COC cannot produce any legal
effect.

Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election.

Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still respected, and even more so. The
votes cast in favor of an ineligible candidate do not constitute the sole and total expression of the sovereign voice. The votes cast in
favor of eligible and legitimate candidates form part of that voice and must also be respected.

As in any contest, elections are governed by rules that determine the qualifications and disqualifications of those who are allowed to
participate as players. When there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to
the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as
candidates.
There is no need to apply the rule cited in Labo v. COMELEC56 that when the voters are well aware within the realm of notoriety of a
candidate’s disqualification and still cast their votes in favor said candidate, then the eligible candidate obtaining the next higher
number of votes may be deemed elected. That rule is also a mere obiter that further complicated the rules affecting qualified
candidates who placed second to ineligible ones.

The electorate’s awareness of the candidate’s disqualification is not a prerequisite for the disqualification to attach to the candidate.
The very existence of a disqualifying circumstance makes the candidate ineligible. Knowledge by the electorate of a candidate’s
disqualification is not necessary before a qualified candidate who placed second to a disqualified one can be proclaimed as the
winner. The second-placer in the vote count is actually the first-placer among the qualified candidates.

That the disqualified candidate has already been proclaimed and has assumed office is of no moment. The subsequent
disqualification based on a substantive ground that existed prior to the filing of the certificate of candidacy voids not only the COC
but also the proclamation.

Section 6 of R.A. No. 6646 provides:

Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is
strong.

There was no chance for Arnado’s proclamation to be suspended under this rule because Arnado failed to file his answer to the
petition seeking his disqualification. Arnado only filed his Answer on 15 June 2010, long after the elections and after he was already
proclaimed as the winner.

The disqualifying circumstance surrounding Arnado’s candidacy involves his citizenship. It does not involve the commission of
election offenses as provided for in the first sentence of Section 68 of the Omnibus Election Code, the effect of which is to disqualify
the individual from continuing as a candidate, or if he has already been elected, from holding the office.

The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado was both a Filipino and an American
citizen when he filed his certificate of candidacy. He was a dual citizen disqualified to run for public office based on Section 40(d) of
the Local Government Code.

Section 40 starts with the statement "The following persons are disqualified from running for any elective local position." The
prohibition serves as a bar against the individuals who fall under any of the enumeration from participating as candidates in the
election.

With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus rendered void from the beginning. It
could not have produced any other legal effect except that Arnado rendered it impossible to effect his disqualification prior to the
elections because he filed his answer to the petition when the elections were conducted already and he was already proclaimed the
winner.

To hold that such proclamation is valid is to negate the prohibitory character of the disqualification which Arnado possessed even
prior to the filing of the certificate of candidacy. The affirmation of Arnado's disqualification, although made long after the elections,
reaches back to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at all in the May 201 0 elections.

Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves Maquiling as the qualified
candidate who obtained the highest number of votes. Therefore, the rule on succession under the Local Government Code will not
apply.

WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of the COMELEC En Bane dated 2 February 2011
is hereby ANNULLED and SET ASIDE. Respondent ROMMEL ARNADO y CAGOCO is disqualified from running for any local
elective position. CASAN MACODE MAQUILING is hereby DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte in
the 10 May 2010 elections.

This Decision is immediately executory.

Let a copy of this Decision be served personally upon the parties and the Commission on Elections.

No pronouncement as to costs.
SO ORDERED.

FUNDAMENTAL POWERS OF THE STATE

PLANTERS PRODUCTS, INC., G.R. No. 166006

Petitioner,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
- versus - CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

Promulgated:
FERTIPHIL CORPORATION,
Respondent. March 14, 2008

x--------------------------------------------------x

DECISION

REYES, R.T., J.:

THE Regional Trial Courts (RTC) have the authority and jurisdiction to consider the constitutionality of statutes, executive orders,

presidential decrees and other issuances. The Constitution vests that power not only in the Supreme Court but in all Regional Trial

Courts.

The principle is relevant in this petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) affirming with

modification that of
[2]
the RTC in Makati City, finding petitioner Planters Products, Inc. (PPI) liable to private respondent Fertiphil Corporation (Fertiphil)

for the levies it paid under Letter of Instruction (LOI) No. 1465.

The Facts

Petitioner PPI and private respondent Fertiphil are private corporations incorporated under Philippine laws. [3] They are

both engaged in the importation and distribution of fertilizers, pesticides and agricultural chemicals.

On June 3, 1985, then President Ferdinand Marcos, exercising his legislative powers, issued LOI No. 1465 which

provided, among others, for the imposition of a capital recovery component (CRC) on the domestic sale of all grades of fertilizers in

the Philippines.[4] The LOI provides:

3. The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing formula a capital
contribution component of not less than P10 per bag. This capital contribution shall be collected until
adequate capital is raised to make PPI viable. Such capital contribution shall be applied by FPA to all
domestic sales of fertilizers in the Philippines.[5] (Underscoring supplied)
 Pursuant to the LOI, Fertiphil paid P10 for every bag of fertilizer it sold in the domestic market to the Fertilizer and

Pesticide Authority (FPA). FPA then remitted the amount collected to the Far East Bank and Trust Company, the depositary bank of

PPI. Fertiphil paid P6,689,144 to FPA from July 8, 1985 to January 24, 1986.[6]

After the 1986 Edsa Revolution, FPA voluntarily stopped the imposition of the P10 levy. With the return of democracy,

Fertiphil demanded from PPI a refund of the amounts it paid under LOI No. 1465, but PPI refused to accede to the demand. [7]

Fertiphil filed a complaint for collection and damages[8] against FPA and PPI with the RTC in Makati. It questioned the

constitutionality of LOI No. 1465 for being unjust, unreasonable, oppressive, invalid and an unlawful imposition that amounted to a

denial of due process of law.[9] Fertiphil alleged that the LOI solely favored PPI, a privately owned corporation, which used the

proceeds to maintain its monopoly of the fertilizer industry.

In its Answer,[10] FPA, through the Solicitor General, countered that the issuance of LOI No. 1465 was a valid exercise of

the police power of the State in ensuring the stability of the fertilizer industry in the country. It also averred that Fertiphil did not

sustain any damage from the LOI because the burden imposed by the levy fell on the ultimate consumer, not the seller.

RTC Disposition

On November 20, 1991, the RTC rendered judgment in favor of Fertiphil, disposing as follows:

WHEREFORE, in view of the foregoing, the Court hereby renders judgment in favor of the plaintiff
and against the defendant Planters Product, Inc., ordering the latter to pay the former:

1) the sum of P6,698,144.00 with interest at 12% from the time of judicial demand;
2) the sum of P100,000 as attorneys fees;
3) the cost of suit.

SO ORDERED.[11]

Ruling that the imposition of the P10 CRC was an exercise of the States inherent power of taxation, the RTC invalidated the levy for

violating the basic principle that taxes can only be levied for public purpose, viz.:

It is apparent that the imposition of P10 per fertilizer bag sold in the country by LOI 1465 is
purportedly in the exercise of the power of taxation. It is a settled principle that the power of taxation by the
state is plenary. Comprehensive and supreme, the principal check upon its abuse resting in the responsibility of
the members of the legislature to their constituents. However, there are two kinds of limitations on the power of
taxation: the inherent limitations and the constitutional limitations.

One of the inherent limitations is that a tax may be levied only for public purposes:
 The power to tax can be resorted to only for a constitutionally valid public purpose. By the
same token, taxes may not be levied for purely private purposes, for building up of private
fortunes, or for the redress of private wrongs. They cannot be levied for the improvement of
private property, or for the benefit, and promotion of private enterprises, except where the
aid is incident to the public benefit. It is well-settled principle of constitutional law that no
general tax can be levied except for the purpose of raising money which is to be expended
for public use. Funds cannot be exacted under the guise of taxation to promote a purpose
that is not of public interest. Without such limitation, the power to tax could be exercised or
employed as an authority to destroy the economy of the people. A tax, however, is not held
void on the ground of want of public interest unless the want of such interest is clear. (71
Am. Jur. pp. 371-372)

In the case at bar, the plaintiff paid the amount of P6,698,144.00 to the Fertilizer and Pesticide Authority
pursuant to the P10 per bag of fertilizer sold imposition under LOI 1465 which, in turn, remitted the amount to
the defendant Planters Products, Inc. thru the latters depository bank, Far East Bank and Trust Co. Thus, by
virtue of LOI 1465 the plaintiff, Fertiphil Corporation, which is a private domestic corporation, became poorer by
the amount of P6,698,144.00 and the defendant, Planters Product, Inc., another private domestic corporation,
became richer by the amount of P6,698,144.00.

Tested by the standards of constitutionality as set forth in the afore-quoted jurisprudence, it is quite evident that
LOI 1465 insofar as it imposes the amount of P10 per fertilizer bag sold in the country and orders that the said
amount should go to the defendant Planters Product, Inc. is unlawful because it violates the mandate that a tax
can be levied only for a public purpose and not to benefit, aid and promote a private enterprise such as Planters
Product, Inc.[12]

PPI moved for reconsideration but its motion was denied.[13] PPI then filed a notice of appeal with the RTC but it failed to pay the

requisite appeal docket fee. In a separate but related proceeding, this Court[14] allowed the appeal of PPI and remanded the case to

the CA for proper disposition.

CA Decision

On November 28, 2003, the CA handed down its decision affirming with modification that of the RTC, with the following fallo:

IN VIEW OF ALL THE FOREGOING, the decision appealed from is hereby AFFIRMED, subject to
the MODIFICATION that the award of attorneys fees is hereby DELETED.[15]

In affirming the RTC decision, the CA ruled that the lis mota of the complaint for collection was the constitutionality of LOI No. 1465,

thus:

The question then is whether it was proper for the trial court to exercise its power to judicially determine the
constitutionality of the subject statute in the instant case.

As a rule, where the controversy can be settled on other grounds, the courts will not resolve the constitutionality
of a law (Lim v. Pacquing, 240 SCRA 649 [1995]). The policy of the courts is to avoid ruling on constitutional
questions and to presume that the acts of political departments are valid, absent a clear and unmistakable
showing to the contrary.

However, the courts are not precluded from exercising such power when the following requisites are obtaining
in a controversy before it: First, there must be before the court an actual case calling for the exercise of judicial
review. Second, the question must be ripe for adjudication. Third, the person challenging the validity of the act
must have standing to challenge. Fourth, the question of constitutionality must have been raised at the earliest
opportunity; and lastly, the issue of constitutionality must be the very lis mota of the case (Integrated Bar of the
Philippines v. Zamora, 338 SCRA 81 [2000]).

Indisputably, the present case was primarily instituted for collection and damages. However, a perusal of the
complaint also reveals
that the instant action is founded on the claim that the levy imposed was an unlawful and unconstitutional
 special assessment. Consequently, the requisite that the constitutionality of the law in question be the very lis
mota of the case is present, making it proper for the trial court to rule on the constitutionality of LOI 1465. [16]

The CA held that even on the assumption that LOI No. 1465 was issued under the police power of the state, it is still unconstitutional

because it did not promote public welfare. The CA explained:

In declaring LOI 1465 unconstitutional, the trial court held that the levy imposed under the said law
was an invalid exercise of the States power of taxation inasmuch as it violated the inherent and constitutional
prescription that taxes be levied only for public purposes. It reasoned out that the amount collected under the
levy was remitted to the depository bank of PPI, which the latter used to advance its private interest.

On the other hand, appellant submits that the subject statutes passage was a valid exercise of police power. In
addition, it disputes the court a quos findings arguing that the collections under LOI 1465 was for the benefit of
Planters Foundation, Incorporated (PFI), a foundation created by law to hold in trust for millions of farmers, the
stock ownership of PPI.

Of the three fundamental powers of the State, the exercise of police power has been characterized as the most
essential, insistent and the least limitable of powers, extending as it does to all the great public needs. It may be
exercised as long as the activity or the property sought to be regulated has some relevance to public welfare
(Constitutional Law, by Isagani A. Cruz, p. 38, 1995 Edition).

Vast as the power is, however, it must be exercised within the limits set by the Constitution, which requires the
concurrence of a lawful subject and a lawful method. Thus, our courts have laid down the test to determine the
validity of a police measure as follows: (1) the interests of the public generally, as distinguished from those of a
particular class, requires its exercise; and (2) the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals (National Development Company v.
Philippine Veterans Bank, 192 SCRA 257 [1990]).

It is upon applying this established tests that We sustain the trial courts holding LOI 1465 unconstitutional. To
be sure, ensuring the continued supply and distribution of fertilizer in the country is an undertaking imbued with
public interest. However, the method by which LOI 1465 sought to achieve this is by no means a measure that
will promote the public welfare. The governments commitment to support the successful rehabilitation and
continued viability of PPI, a private corporation, is an unmistakable attempt to mask the subject statutes
impartiality. There is no way to treat the self-interest of a favored entity,
like PPI, as identical with the general interest of the countrys farmers or even the Filipino people in
general. Well to stress, substantive due process exacts fairness and equal protection disallows distinction
where none is needed. When a statutes public purpose is spoiled by private interest, the use of police power
becomes a travesty which must be struck down for being an arbitrary exercise of government power. To rule in
favor of appellant would contravene the general principle that revenues derived from taxes cannot be used for
purely private purposes or for the exclusive benefit of private individuals.[17]

The CA did not accept PPIs claim that the levy imposed under LOI No. 1465 was for the benefit of Planters Foundation, Inc., a

foundation created to hold in trust the stock ownership of PPI. The CA stated:

Appellant next claims that the collections under LOI 1465 was for the benefit of Planters Foundation,
Incorporated (PFI), a foundation created by law to hold in trust for millions of farmers, the stock ownership
of PFI on the strength of Letter of Undertaking (LOU) issued by then Prime Minister Cesar Virata on April 18,
1985 and affirmed by the Secretary of Justice in an Opinion dated October 12, 1987, to wit:

2. Upon the effective date of this Letter of Undertaking, the Republic shall cause FPA to
include in its fertilizer pricing formula a capital recovery component, the proceeds of which
will be used initially for the purpose of funding the unpaid portion of the outstanding capital
stock of Planters presently held in trust by Planters Foundation, Inc. (Planters Foundation),
which unpaid capital is estimated at approximately P206 million (subject to validation by
Planters and Planters Foundation) (such unpaid portion of the outstanding capital stock of
Planters being hereafter referred to as the Unpaid Capital), and subsequently for such
capital increases as may be required for the continuing viability of Planters.

The capital recovery component shall be in the minimum amount of P10 per bag, which will
be added to the price of all domestic sales of fertilizer in the Philippines by any importer
and/or fertilizer mother company. In this connection, the Republic hereby acknowledges
that the advances by Planters to Planters Foundation which were applied to the payment of
 the Planters shares now held in trust by Planters Foundation, have been assigned to,
among others, the Creditors. Accordingly, the Republic, through FPA, hereby agrees to
deposit the proceeds of the capital recovery component in the special trust account
designated in the notice dated April 2, 1985, addressed by counsel for the Creditors to
Planters Foundation. Such proceeds shall be deposited by FPA on or before the 15th day of
each month.

The capital recovery component shall continue to be charged and collected until payment in
full of (a) the Unpaid Capital and/or (b) any shortfall in the payment of the Subsidy
Receivables, (c) any carrying cost accruing from the date hereof on the amounts which
may be outstanding from time to time of the Unpaid Capital and/or the Subsidy Receivables
and (d) the capital increases contemplated in paragraph 2 hereof. For the purpose of the
foregoing clause (c), the carrying cost shall be at such rate as will represent the full and
reasonable cost to Planters of servicing its debts, taking into account both its peso and
foreign currency-denominated obligations. (Records, pp. 42-43)

Appellants proposition is open to question, to say the least. The LOU issued by then Prime Minister Virata taken
together with the Justice Secretarys Opinion does not preponderantly demonstrate that the collections made
were held in trust in favor of millions of farmers. Unfortunately for appellant, in the absence of sufficient
evidence to establish its claims, this Court is constrained to rely on what is explicitly provided in LOI 1465 that
one of the primary aims in imposing the levy is to support the successful rehabilitation and continued viability of
PPI.[18]

PPI moved for reconsideration but its motion was denied.[19] It then filed the present petition with this Court.

Issues

Petitioner PPI raises four issues for Our consideration, viz.:

I
THE CONSTITUTIONALITY OF LOI 1465 CANNOT BE COLLATERALLY ATTACKED AND BE
DECREED VIA A DEFAULT JUDGMENT IN A CASE FILED FOR COLLECTION AND DAMAGES WHERE
THE ISSUE OF CONSTITUTIONALITY IS NOT THE VERY LIS MOTA OF THE CASE. NEITHER CAN LOI
1465 BE CHALLENGED BY ANY PERSON OR ENTITY WHICH HAS NO STANDING TO DO SO.

II
LOI 1465, BEING A LAW IMPLEMENTED FOR THE PURPOSE OF ASSURING THE FERTILIZER
SUPPLY AND DISTRIBUTION IN THE COUNTRY, AND FOR BENEFITING A FOUNDATION CREATED BY
LAW TO HOLD IN TRUST FOR MILLIONS OF FARMERS THEIR STOCK OWNERSHIP IN
PPI CONSTITUTES A VALID LEGISLATION PURSUANT TO THE EXERCISE OF TAXATION AND POLICE
POWER FOR PUBLIC PURPOSES.

III
THE AMOUNT COLLECTED UNDER THE CAPITAL RECOVERY COMPONENT WAS REMITTED TO THE
GOVERNMENT, AND BECAME GOVERNMENT FUNDS PURSUANT TO AN EFFECTIVE AND VALIDLY
ENACTED LAW WHICH IMPOSED DUTIES AND CONFERRED RIGHTS BY VIRTUE OF THE PRINCIPLE
OF OPERATIVE FACT PRIOR TO ANY DECLARATION OF UNCONSTITUTIONALITY OF LOI 1465.

IV
THE PRINCIPLE OF UNJUST VEXATION (SHOULD BE ENRICHMENT) FINDS NO APPLICATION IN THE
INSTANT CASE.[20] (Underscoring supplied)

Our Ruling

We shall first tackle the procedural issues of locus standi and the jurisdiction of the RTC to resolve constitutional issues.
Fertiphil has locus standi because it suffered direct injury;
doctrine of standing is a mere procedural technicality which may
be waived.

PPI argues that Fertiphil has no locus standi to question the constitutionality of LOI No. 1465 because it does not have a

personal and substantial interest in the case or will sustain direct injury as a result of its enforcement. [21] It asserts that Fertiphil did

not suffer any damage from the CRC imposition because incidence of the levy fell on the ultimate consumer or the farmers

themselves, not on the seller fertilizer company.[22]

We cannot agree. The doctrine of locus standi or the right of appearance in a court of justice has been adequately

discussed by this Court in a catena of cases. Succinctly put, the doctrine requires a litigant to have a material interest in the

outcome of a case. In private suits, locus standi requires a litigant to be a real party in interest, which is defined as the

party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. [23]

In public suits, this Court recognizes the difficulty of applying the doctrine especially when plaintiff asserts a public right on

behalf of the general public because of conflicting public policy issues. [24] On one end, there is the right of the ordinary citizen to

petition the courts to be freed from unlawful government intrusion and illegal official action. At the other end, there is the public

policy precluding excessive judicial interference in official acts, which may unnecessarily hinder the delivery of basic public services.

In this jurisdiction, We have adopted the direct injury test to determine locus standi in public suits. In People v. Vera,[25] it

was held that a person who impugns the validity of a statute must have a personal and substantial interest in the case such that he

has sustained, or will sustain direct injury as a result. The direct injury test in public suits is similar to the real party in interest rule for

private suits under Section 2, Rule 3 of the 1997 Rules of Civil Procedure.[26]

Recognizing that a strict application of the direct injury test may hamper public interest, this Court relaxed the requirement

in cases of transcendental importance or with far reaching implications. Being a mere procedural technicality, it has also been held

that locus standi may be waived in the public interest.[27]

Whether or not the complaint for collection is characterized as a private or public suit, Fertiphil has locus standi to file

it. Fertiphil suffered a direct injury from the enforcement of LOI No. 1465. It was required, and it did pay, the P10 levy imposed for

every bag of fertilizer sold on the domestic market. It may be true that Fertiphil has passed some or all of the levy to the ultimate

consumer, but that does not disqualify it from attacking the constitutionality of the LOI or from seeking a refund. As seller, it bore the

ultimate burden of paying the levy. It faced the possibility of severe sanctions for failure to pay the levy. The fact of payment is

sufficient injury to Fertiphil.

 Moreover, Fertiphil suffered harm from the enforcement of the LOI because it was compelled to factor in its product the

levy. The levy certainly rendered the fertilizer products of Fertiphil and other domestic sellers much more expensive. The harm to

their business consists not only in fewer clients because of the increased price, but also in adopting alternative corporate strategies

to meet the demands of LOI No. 1465. Fertiphil and other fertilizer sellers may have shouldered all or part of the levy just to be

competitive in the market. The harm occasioned on the business of Fertiphil is sufficient injury for purposes of locus standi.

Even assuming arguendo that there is no direct injury, We find that the liberal policy consistently adopted by this Court

on locus standi must apply. The issues raised by Fertiphil are of paramount public importance. It involves not only the

constitutionality of a tax law but, more importantly, the use of taxes for public purpose. Former President Marcos issued LOI No.

1465 with the intention of rehabilitating an ailing private company. This is clear from the text of the LOI. PPI is expressly named in

the LOI as the direct beneficiary of the levy. Worse, the levy was made dependent and conditional upon PPI becoming financially

viable. The LOI provided that the capital contribution shall be collected until adequate capital is raised to make PPI viable.

The constitutionality of the levy is already in doubt on a plain reading of the statute. It is Our constitutional duty to squarely resolve

the issue as the final arbiter of all justiciable controversies. The doctrine of standing, being a mere procedural technicality, should be

waived, if at all, to adequately thresh out an important constitutional issue.

RTC may resolve constitutional issues; the constitutional issue

was adequately raised in the complaint; it is the lis mota of the
case.

PPI insists that the RTC and the CA erred in ruling on the constitutionality of the LOI. It asserts that the constitutionality of

the LOI cannot be collaterally attacked in a complaint for collection. [28] Alternatively, the resolution of the constitutional issue is not

necessary for a determination of the complaint for collection. [29]

Fertiphil counters that the constitutionality of the LOI was adequately pleaded in its complaint. It claims that the

constitutionality of LOI No. 1465 is the very lis mota of the case because the trial court cannot determine its claim without resolving

the issue.[30]

It is settled that the RTC has jurisdiction to resolve the constitutionality of a statute, presidential decree or an executive

order. This is clear from Section 5, Article VIII of the 1987 Constitution, which provides:

SECTION 5. The Supreme Court shall have the following powers:

 xxxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance,
or regulation is in question. (Underscoring supplied)

In Mirasol v. Court of Appeals,[31] this Court recognized the power of the RTC to resolve constitutional issues, thus:

On the first issue. It is settled that Regional Trial Courts have the authority and jurisdiction to consider
the constitutionality of a statute, presidential decree, or executive order. The Constitution vests the power of
judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree,
order, instruction, ordinance, or regulation not only in this Court, but in all Regional Trial Courts.[32]

In the recent case of Equi-Asia Placement, Inc. v. Department of Foreign Affairs,[33] this Court reiterated:

There is no denying that regular courts have jurisdiction over cases involving the validity or
constitutionality of a rule or regulation issued by administrative agencies.Such jurisdiction, however, is not
limited to the Court of Appeals or to this Court alone for even the regional trial courts can take cognizance of
actions assailing a specific rule or set of rules promulgated by administrative bodies. Indeed, the Constitution
vests the power of judicial review or the power to declare a law, treaty, international or executive agreement,
presidential decree, order, instruction, ordinance, or regulation in the courts, including the regional trial courts.[34]

Judicial review of official acts on the ground of unconstitutionality may be sought or availed of through any of the actions

cognizable by courts of justice, not necessarily in a suit for declaratory relief. Such review may be had in criminal actions, as

in People v. Ferrer[35] involving the constitutionality of the now defunct Anti-Subversion law, or in ordinary actions, as in Krivenko v.

Register of Deeds[36] involving the constitutionality of laws prohibiting aliens from acquiring public lands. The constitutional issue,

however, (a) must be properly raised and presented in the case, and (b) its resolution is necessary to a determination of the case,

i.e., the issue of constitutionality must be the very lis mota presented.[37]

Contrary to PPIs claim, the constitutionality of LOI No. 1465 was properly and adequately raised in the complaint for

collection filed with the RTC. The pertinent portions of the complaint allege:

6. The CRC of P10 per bag levied under LOI 1465 on domestic sales of all grades of fertilizer in the
Philippines, is unlawful, unjust, uncalled for, unreasonable, inequitable and oppressive because:
xxxx

(c) It favors only one private domestic corporation, i.e., defendant PPPI, and
imposed at the expense and disadvantage of the other fertilizer importers/distributors who
were themselves in tight business situation and were then exerting all efforts and
maximizing management and marketing skills to remain viable;

xxxx

(e) It was a glaring example of crony capitalism, a forced program through which
the PPI, having been presumptuously masqueraded as the fertilizer industry itself, was the
sole and anointed beneficiary;

7. The CRC was an unlawful; and unconstitutional special assessment and its imposition is
tantamount to illegal exaction amounting to a denial of due process since the persons of entities which had to
bear the burden of paying the CRC derived no benefit therefrom; that on the contrary it was used by PPI in
 trying to regain its former despicable monopoly of the fertilizer industry to the detriment of other distributors and
importers.[38] (Underscoring supplied)

The constitutionality of LOI No. 1465 is also the very lis mota of the complaint for collection. Fertiphil filed the complaint to

compel PPI to refund the levies paid under the statute on the ground that the law imposing the levy is unconstitutional. The thesis is

that an unconstitutional law is void. It has no legal effect. Being void, Fertiphil had no legal obligation to pay the levy. Necessarily, all

levies duly paid pursuant to an unconstitutional law should be refunded under the civil code principle against unjust enrichment. The

refund is a mere consequence of the law being declared unconstitutional. The RTC surely cannot order PPI to refund Fertiphil if it

does not declare the LOI unconstitutional. It is the unconstitutionality of the LOI which triggers the refund. The issue of

constitutionality is the very lis mota of the complaint with the RTC.

The P10 levy under LOI No. 1465 is an exercise of the power of
taxation.

At any rate, the Court holds that the RTC and the CA did not err in ruling against the constitutionality of the LOI.

PPI insists that LOI No. 1465 is a valid exercise either of the police power or the power of taxation. It claims that the LOI

was implemented for the purpose of assuring the fertilizer supply and distribution in the country and for benefiting a foundation

created by law to hold in trust for millions of farmers their stock ownership in PPI.

Fertiphil counters that the LOI is unconstitutional because it was enacted to give benefit to a private company. The levy

was imposed to pay the corporate debt of PPI. Fertiphil also argues that, even if the LOI is enacted under the police power, it is still

unconstitutional because it did not promote the general welfare of the people or public interest.

Police power and the power of taxation are inherent powers of the State. These powers are distinct and have different

tests for validity. Police power is the power of the State to enact legislation that may interfere with personal liberty or property in

order to promote the general welfare,[39] while the power of taxation is the power to levy taxes to be used for public purpose. The

main purpose of police power is the regulation of a behavior or conduct, while taxation is revenue generation. The lawful subjects

and lawful means tests are used to determine the validity of a law enacted under the police power. [40] The power of taxation, on the

other hand, is circumscribed by inherent and constitutional limitations.

We agree with the RTC that the imposition of the levy was an exercise by the State of its taxation power. While it is true

that the power of taxation can be used as an implement of police power, [41] the primary purpose of the levy is revenue generation. If

the purpose is primarily revenue, or if revenue is, at least, one of the real and substantial purposes, then the exaction is properly

called a tax.[42]
 In Philippine Airlines, Inc. v. Edu,[43] it was held that the imposition of a vehicle registration fee is not an exercise by the

State of its police power, but of its taxation power, thus:

It is clear from the provisions of Section 73 of Commonwealth Act 123 and Section 61 of the Land
Transportation and Traffic Code that the legislative intent and purpose behind the law requiring owners of
vehicles to pay for their registration is mainly to raise funds for the construction and maintenance of highways
and to a much lesser degree, pay for the operating expenses of the administering agency. x x x Fees may be
properly regarded as taxes even though they also serve as an instrument of regulation.

Taxation may be made the implement of the state's police power (Lutz v. Araneta, 98 Phil. 148). If the
purpose is primarily revenue, or if revenue is, at least, one of the real and substantial purposes, then the
exaction is properly called a tax. Such is the case of motor vehicle registration fees. The same provision
appears as Section 59(b) in the Land Transportation Code. It is patent therefrom that the legislators had in mind
a regulatory tax as the law refers to the imposition on the registration, operation or ownership of a motor vehicle
as a tax or fee. x x x Simply put, if the exaction under Rep. Act 4136 were merely a regulatory fee, the
imposition in Rep. Act 5448 need not be an additional tax. Rep. Act 4136 also speaks of other fees such as the
special permit fees for certain types of motor vehicles (Sec. 10) and additional fees for change of registration
(Sec. 11). These are not to be understood as taxes because such fees are very minimal to be revenue-
raising. Thus, they are not mentioned by Sec. 59(b) of the Code as taxes like the motor vehicle registration fee
and chauffeurs license fee. Such fees are to go into the expenditures of the Land Transportation Commission
as provided for in the last proviso of Sec. 61.[44] (Underscoring supplied)

The P10 levy under LOI No. 1465 is too excessive to serve a mere regulatory purpose. The levy, no doubt, was a big

burden on the seller or the ultimate consumer. It increased the price of a bag of fertilizer by as much as five percent. [45] A plain

reading of the LOI also supports the conclusion that the levy was for revenue generation. The LOI expressly provided that the levy

was imposed until adequate capital is raised to make PPI viable.

Taxes are exacted only for a public purpose. The P10 levy is
unconstitutional because it was not for a public purpose. The levy
was imposed to give undue benefit to PPI.

An inherent limitation on the power of taxation is public purpose. Taxes are exacted only for a public purpose. They

cannot be used for purely private purposes or for the exclusive benefit of private persons. [46] The reason for this is simple. The

power to tax exists for the general welfare; hence, implicit in its power is the limitation that it should be used only for a public

purpose. It would be a robbery for the State to tax its citizens and use the funds generated for a private purpose. As an old United

States case bluntly put it: To lay with one hand, the power of the government on the property of the citizen, and with the other to

bestow it upon favored individuals to aid private enterprises and build up private fortunes, is nonetheless a robbery because it is

done under the forms of law and is called taxation.[47]

The term public purpose is not defined. It is an elastic concept that can be hammered to fit modern

standards. Jurisprudence states that public purpose should be given a broad interpretation. It does not only pertain to those

purposes which are traditionally viewed as essentially government functions, such as building roads and delivery of basic services,

but also includes those purposes designed to promote social justice. Thus, public money may now be used for the relocation of

illegal settlers, low-cost housing and urban or agrarian reform.

 While the categories of what may constitute a public purpose are continually expanding in light of the expansion of

government functions, the inherent requirement that taxes can only be exacted for a public purpose still stands. Public purpose is

the heart of a tax law. When a tax law is only a mask to exact funds from the public when its true intent is to give undue benefit and

advantage to a private enterprise, that law will not satisfy the requirement of public purpose.

The purpose of a law is evident from its text or inferable from other secondary sources. Here, We agree with the RTC and

that CA that the levy imposed under LOI No. 1465 was not for a public purpose.

First, the LOI expressly provided that the levy be imposed to benefit PPI, a private company. The purpose is explicit from

Clause 3 of the law, thus:

3. The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing formula a capital
contribution component of not less than P10 per bag. This capital contribution shall be collected until
adequate capital is raised to make PPI viable. Such capital contribution shall be applied by FPA to all
domestic sales of fertilizers in the Philippines.[48] (Underscoring supplied)

It is a basic rule of statutory construction that the text of a statute should be given a literal meaning. In this case, the text

of the LOI is plain that the levy was imposed in order to raise capital for PPI. The framers of the LOI did not even hide the insidious

purpose of the law. They were cavalier enough to name PPI as the ultimate beneficiary of the taxes levied under the LOI. We find it

utterly repulsive that a tax law would expressly name a private company as the ultimate beneficiary of the taxes to be levied from the

public. This is a clear case of crony capitalism.

Second, the LOI provides that the imposition of the P10 levy was conditional and dependent upon PPI becoming

financially viable. This suggests that the levy was actually imposed to benefit PPI. The LOI notably does not fix a maximum amount

when PPI is deemed financially viable. Worse, the liability of Fertiphil and other domestic sellers of fertilizer to pay the levy is made

indefinite. They are required to continuously pay the levy until adequate capital is raised for PPI.

Third, the RTC and the CA held that the levies paid under the LOI were directly remitted and deposited by FPA to Far

East Bank and Trust Company, the depositary bank of PPI. [49] This proves that PPI benefited from the LOI. It is also proves that the

main purpose of the law was to give undue benefit and advantage to PPI.

Fourth, the levy was used to pay the corporate debts of PPI. A reading of the Letter of Understanding[50] dated May 18,

1985 signed by then Prime Minister Cesar Virata reveals that PPI was in deep financial problem because of its huge corporate

debts. There were pending petitions for rehabilitation against PPI before the Securities and Exchange Commission. The government
guaranteed payment of PPIs debts to its foreign creditors. To fund the payment, President Marcos issued LOI No. 1465. The

pertinent portions of the letter of understanding read:

Republic of the Philippines

Office of the Prime Minister
Manila

LETTER OF UNDERTAKING

May 18, 1985

TO: THE BANKING AND FINANCIAL INSTITUTIONS

LISTED IN ANNEX A HERETO WHICH ARE
CREDITORS (COLLECTIVELY, THE CREDITORS)
OF PLANTERS PRODUCTS, INC. (PLANTERS)

Gentlemen:

This has reference to Planters which is the principal importer and distributor of fertilizer, pesticides and
agricultural chemicals in the Philippines. As regards Planters, the Philippine Government confirms its
awareness of the following: (1) that Planters has outstanding obligations in foreign currency and/or pesos, to the
Creditors, (2) that Planters is currently experiencing financial difficulties, and (3) that there are presently
pending with the Securities and Exchange Commission of the Philippines a petition filed at Planters own behest
for the suspension of payment of all its obligations, and a separate petition filed by Manufacturers Hanover
Trust Company, Manila Offshore Branch for the appointment of a rehabilitation receiver for Planters.

In connection with the foregoing, the Republic of the Philippines (the Republic) confirms that it considers and
continues to consider Planters as a major fertilizer distributor. Accordingly, for and in consideration of your
expressed willingness to consider and participate in the effort to rehabilitate Planters, the Republic hereby
manifests its full and unqualified support of the successful rehabilitation and continuing viability of Planters, and
to that end, hereby binds and obligates itself to the creditors and Planters, as follows:

xxxx

2. Upon the effective date of this Letter of Undertaking, the Republic shall cause FPA to include in its
fertilizer pricing formula a capital recovery component, the proceeds of which will be used initially for the
purpose of funding the unpaid portion of the outstanding capital stock of Planters presently held in trust by
Planters Foundation, Inc. (Planters Foundation), which unpaid capital is estimated at approximately P206
million (subject to validation by Planters and Planters Foundation) such unpaid portion of the outstanding capital
stock of Planters being hereafter referred to as the Unpaid Capital), and subsequently for such capital increases
as may be required for the continuing viability of Planters.

xxxx

The capital recovery component shall continue to be charged and collected until payment in full of (a)
the Unpaid Capital and/or (b) any shortfall in the payment of the Subsidy Receivables, (c) any carrying cost
accruing from the date hereof on the amounts which may be outstanding from time to time of the Unpaid Capital
and/or the Subsidy Receivables, and (d) the capital increases contemplated in paragraph 2 hereof. For the
purpose of the foregoing clause (c), the carrying cost shall be at such rate as will represent the full and
reasonable cost to Planters of servicing its debts, taking into account both its peso and foreign currency-
denominated obligations.

REPUBLIC OF THE PHILIPPINES

By:
(signed)
CESAR E. A. VIRATA
Prime Minister and Minister of Finance[51]

It is clear from the Letter of Understanding that the levy was imposed precisely to pay the corporate debts of PPI. We

cannot agree with PPI that the levy was imposed to ensure the stability of the fertilizer industry in the country. The letter of

understanding and the plain text of the LOI clearly indicate that the levy was exacted for the benefit of a private corporation.
 All told, the RTC and the CA did not err in holding that the levy imposed under LOI No. 1465 was not for a public

purpose. LOI No. 1465 failed to comply with the public purpose requirement for tax laws.

The LOI is still unconstitutional even if enacted under the police

power; it did not promote public interest.

Even if We consider LOI No. 1695 enacted under the police power of the State, it would still be invalid for failing to comply with the

test of lawful subjects and lawful means. Jurisprudence states the test as follows: (1) the interest of the public generally, as

distinguished from those of particular class, requires its exercise; and (2) the means employed are reasonably necessary for the

accomplishment of the purpose and not unduly oppressive upon individuals. [52]

For the same reasons as discussed, LOI No. 1695 is invalid because it did not promote public interest. The law was enacted to give

undue advantage to a private corporation. We quote with approval the CA ratiocination on this point, thus:

It is upon applying this established tests that We sustain the trial courts holding LOI 1465
unconstitutional. To be sure, ensuring the continued supply and distribution of fertilizer in the country is an
undertaking imbued with public interest. However, the method by which LOI 1465 sought to achieve this is by
no means a measure that will promote the public welfare. The governments commitment to support the
successful rehabilitation and continued viability of PPI, a private corporation, is an unmistakable attempt to
mask the subject statutes impartiality. There is no way to treat the self-interest of a favored entity, like PPI, as
identical with the general interest of the countrys farmers or even the Filipino people in general. Well to stress,
substantive due process exacts fairness and equal protection disallows distinction where none is needed. When
a statutes public purpose is spoiled by private interest, the use of police power becomes a travesty which must
be struck down for being an arbitrary exercise of government power. To rule in favor of appellant would
contravene the general principle that revenues derived from taxes cannot be used for purely private purposes or
for the exclusive benefit of private individuals. (Underscoring supplied)

The general rule is that an unconstitutional law is void; the

doctrine of operative fact is inapplicable.

PPI also argues that Fertiphil cannot seek a refund even if LOI No. 1465 is declared unconstitutional. It banks on the

doctrine of operative fact, which provides that an unconstitutional law has an effect before being declared unconstitutional. PPI

wants to retain the levies paid under LOI No. 1465 even if it is subsequently declared to be unconstitutional.

We cannot agree. It is settled that no question, issue or argument will be entertained on appeal, unless it has been raised

in the court a quo.[53] PPI did not raise the applicability of the doctrine of operative fact with the RTC and the CA. It cannot belatedly

raise the issue with Us in order to extricate itself from the dire effects of an unconstitutional law.

At any rate, We find the doctrine inapplicable. The general rule is that an unconstitutional law is void. It produces no

rights, imposes no duties and affords no protection. It has no legal effect. It is, in legal contemplation, inoperative as if it has not

been passed.[54] Being void, Fertiphil is not required to pay the levy. All levies paid should be refunded in accordance with the

general civil code principle against unjust enrichment. The general rule is supported by Article 7 of the Civil Code, which provides:

ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not
be excused by disuse or custom or practice to the contrary.
 When the courts declare a law to be inconsistent with the Constitution, the former shall be void and
the latter shall govern.

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play.[55] It

nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of

unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be

erased by a new judicial declaration.[56]

The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied

on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double

jeopardy[57] or would put in limbo the acts done by a municipality in reliance upon a law creating it.[58]

Here, We do not find anything iniquitous in ordering PPI to refund the amounts paid by Fertiphil under LOI No. 1465. It

unduly benefited from the levy. It was proven during the trial that the levies paid were remitted and deposited to its bank

account. Quite the reverse, it would be inequitable and unjust not to order a refund. To do so would unjustly enrich PPI at the

expense of Fertiphil. Article 22 of the Civil Code explicitly provides that every person who, through an act of performance by another

comes into possession of something at the expense of the latter without just or legal ground shall return the same to him. We cannot

allow PPI to profit from an unconstitutional law. Justice and equity dictate that PPI must refund the amounts paid by Fertiphil.

WHEREFORE, the petition is DENIED. The Court of Appeals Decision dated November 28, 2003 is AFFIRMED.

SO ORDERED.
ROMEO P. GEROCHI, KATULONG NG BAYAN (KB) and G.R. No. 159796
ENVIRONMENTALIST CONSUMERS NETWORK, INC.
(ECN), Present:
Petitioners,
PUNO, C.J.,
-versus- QUISUMBING,
YNARES-SANTIAGO,
DEPARTMENT OF ENERGY (DOE), ENERGY SANDOVAL-GUTIERREZ,
REGULATORY COMMISSION (ERC), NATIONAL CARPIO,
POWER CORPORATION (NPC), POWER SECTOR AUSTRIA-MARTINEZ,
ASSETS AND LIABILITIES MANAGEMENT GROUP CORONA,
(PSALM Corp.), STRATEGIC POWER UTILITIES CARPIO MORALES,
GROUP (SPUG), and PANAYELECTRIC COMPANY INC. AZCUNA,
(PECO), TINGA,
Respondents. CHICO-NAZARIO,
GARCIA,
VELASCO, JR. and
NACHURA, JJ.

Promulgated:

July 17, 2007

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

NACHURA, J.:
Petitioners Romeo P. Gerochi, Katulong Ng Bayan (KB), and Environmentalist Consumers Network, Inc. (ECN) (petitioners), come

before this Court in this original action praying that Section 34 of Republic Act (RA) 9136, otherwise known as the Electric Power

Industry Reform Act of 2001 (EPIRA), imposing the Universal Charge, [1] and Rule 18 of the Rules and Regulations (IRR)[2] which

seeks to implement the said imposition, be declared unconstitutional. Petitioners also pray that the Universal Charge imposed upon

the consumers be refunded and that a preliminary injunction and/or temporary restraining order (TRO) be issued directing the

respondents to refrain from implementing, charging, and collecting the said charge.[3] The assailed provision of law reads:

SECTION 34. Universal Charge. Within one (1) year from the effectivity of this Act, a universal charge
to be determined, fixed and approved by the ERC, shall be imposed on all electricity end-users for the following
purposes:

(a) Payment for the stranded debts[4] in excess of the amount assumed by the National Government and
stranded contract costs of NPC[5] and as well as qualified stranded contract costs of distribution utilities
resulting from the restructuring of the industry;

(b) Missionary electrification;[6]

(c) The equalization of the taxes and royalties applied to indigenous or renewable sources of energy vis--vis
imported energy fuels;

(d) An environmental charge equivalent to one-fourth of one centavo per kilowatt-hour (P0.0025/kWh), which
shall accrue to an environmental fund to be used solely for watershed rehabilitation and management.
Said fund shall be managed by NPC under existing arrangements; and

(e) A charge to account for all forms of cross-subsidies for a period not exceeding three (3) years.

The universal charge shall be a non-bypassable charge which shall be passed on and collected from all end-
users on a monthly basis by the distribution utilities. Collections by the distribution utilities and the TRANSCO in
any given month shall be remitted to the PSALM Corp. on or before the fifteenth (15th) of the succeeding
month, net of any amount due to the distribution utility. Any end-user or self-generating entity not connected to a
distribution utility shall remit its corresponding universal charge directly to the TRANSCO. The PSALM Corp., as
administrator of the fund, shall create a Special Trust Fund which shall be disbursed only for the purposes
specified herein in an open and transparent manner. All amount collected for the universal charge shall be
distributed to the respective beneficiaries within a reasonable period to be provided by the ERC.

The Facts

Congress enacted the EPIRA on June 8, 2001; on June 26, 2001, it took effect.[7]

On April 5, 2002, respondent National Power Corporation-Strategic Power Utilities Group[8] (NPC-SPUG) filed with respondent

Energy Regulatory Commission (ERC) a petition for the availment from the Universal Charge of its share for Missionary

Electrification, docketed as ERC Case No. 2002-165.[9]

On May 7, 2002, NPC filed another petition with ERC, docketed as ERC Case No. 2002-194, praying that the proposed share from

the Universal Charge for the Environmental charge of P0.0025 per kilowatt-hour (/kWh), or a total of P119,488,847.59, be approved

for withdrawal from the Special Trust Fund (STF)managed by respondent Power Sector Assets and

Liabilities Management Group (PSALM)[10] for the rehabilitation and management of watershed areas.[11]
On December 20, 2002, the ERC issued an Order[12] in ERC Case No. 2002-165 provisionally approving the computed amount

of P0.0168/kWh as the share of the NPC-SPUG from the Universal Charge for Missionary Electrification and authorizing the

National Transmission Corporation (TRANSCO) and Distribution Utilities to collect the same from its end-users on a monthly basis.

On June 26, 2003, the ERC rendered its Decision[13] (for ERC Case No. 2002-165) modifying its Order of December 20, 2002, thus:

WHEREFORE, the foregoing premises considered, the provisional authority granted to petitioner
National Power Corporation-Strategic Power Utilities Group (NPC-SPUG) in the Order dated December 20,
2002 is hereby modified to the effect that an additional amount of P0.0205 per kilowatt-hour should be added to
the P0.0168 per kilowatt-hour provisionally authorized by the Commission in the said Order. Accordingly, a total
amount of P0.0373 per kilowatt-hour is hereby APPROVED for withdrawal from the Special Trust Fund
managed by PSALM as its share from the Universal Charge for Missionary Electrification (UC-ME) effective on
the following billing cycles:

(a) June 26-July 25, 2003 for National Transmission Corporation (TRANSCO); and
(b) July 2003 for Distribution Utilities (Dus).

Relative thereto, TRANSCO and Dus are directed to collect the UC-ME in the amount of P0.0373 per
kilowatt-hour and remit the same to PSALM on or before the 15th day of the succeeding month.

In the meantime, NPC-SPUG is directed to submit, not later than April 30, 2004, a detailed report to
include Audited Financial Statements and physical status (percentage of completion) of the projects using the
prescribed format.

Let copies of this Order be furnished petitioner NPC-SPUG and all distribution utilities (Dus).

SO ORDERED.

On August 13, 2003, NPC-SPUG filed a Motion for Reconsideration asking the ERC, among others, [14] to set aside the above-

mentioned Decision, which the ERC granted in its Order dated October 7, 2003, disposing:

WHEREFORE, the foregoing premises considered, the Motion for Reconsideration filed by petitioner National
Power Corporation-Small Power Utilities Group (NPC-SPUG) is hereby GRANTED. Accordingly, the Decision
dated June 26, 2003 is hereby modified accordingly.

Relative thereto, NPC-SPUG is directed to submit a quarterly report on the following:

1. Projects for CY 2002 undertaken;

2. Location
3. Actual amount utilized to complete the project;
4. Period of completion;
5. Start of Operation; and
6. Explanation of the reallocation of UC-ME funds, if any.
SO ORDERED.[15]

Meanwhile, on April 2, 2003, ERC decided ERC Case No. 2002-194, authorizing the NPC to draw up to P70,000,000.00 from

PSALM for its 2003 Watershed Rehabilitation Budget subject to the availability of funds for the Environmental Fund component of

the Universal Charge.[16]

On the basis of the said ERC decisions, respondent Panay Electric Company, Inc. (PECO) charged petitioner Romeo P.

Gerochi and all other

end-users with the Universal Charge as reflected in their respective electric bills starting from the month of July 2003. [17]

Hence, this original action.

Petitioners submit that the assailed provision of law and its IRR which sought to implement the same are unconstitutional on the

following grounds:

1) The universal charge provided for under Sec. 34 of the EPIRA and sought to be implemented under Sec.
2, Rule 18 of the IRR of the said law is a tax which is to be collected from all electric end-users and self-
generating entities. The power to tax is strictly a legislative function and as such, the delegation of said
power to any executive or administrative agency like the ERC is unconstitutional, giving the same unlimited
authority. The assailed provision clearly provides that the Universal Charge is to be determined, fixed and
approved by the ERC, hence leaving to the latter complete discretionary legislative authority.

2) The ERC is also empowered to approve and determine where the funds collected should be used.

3) The imposition of the Universal Charge on all end-users is oppressive and confiscatory and amounts to
taxation without representation as the consumers were not given a chance to be heard and represented. [18]

Petitioners contend that the Universal Charge has the characteristics of a tax and is collected to fund the operations of the

NPC. They argue that the cases[19] invoked by the respondents clearly show the regulatory purpose of the charges imposed therein,

which is not so in the case at bench. In said cases, the respective funds [20] were created in order to balance and stabilize the prices

of oil and sugar, and to act as buffer to counteract the changes and adjustments in prices, peso devaluation, and other variables

which cannot be adequately and timely monitored by the legislature. Thus, there was a need to delegate powers to administrative

bodies.[21] Petitioners posit that the Universal Charge is imposed not for a similar purpose.

On the other hand, respondent PSALM through the Office of the Government Corporate Counsel (OGCC) contends that unlike a tax

which is imposed to provide income for public purposes, such as support of the government, administration of the law, or payment of

public expenses, the assailed Universal Charge is levied for a specific regulatory purpose, which is to ensure the viability of the

country's electric power industry. Thus, it is exacted by the State in the exercise of its inherent police power. On this premise,

PSALM submits that there is no undue delegation of legislative power to the ERC since the latter merely exercises a limited

authority or discretion as to the execution and implementation of the provisions of the EPIRA.[22]

Respondents Department of Energy (DOE), ERC, and NPC, through the Office of the Solicitor General (OSG), share the same view

that the Universal Charge is not a tax because it is levied for a specific regulatory purpose, which is to ensure the viability of the

country's electric power industry, and is, therefore, an exaction in the exercise of the State's police power. Respondents further

contend that said Universal Charge does not possess the essential characteristics of a tax, that its imposition would redound to the

benefit of the electric power industry and not to the public, and that its rate is uniformly levied on electricity end-users, unlike a tax

which is imposed based on the individual taxpayer's ability to pay. Moreover, respondents deny that there is undue delegation of

legislative power to the ERC since the EPIRA sets forth sufficient determinable standards which would guide the ERC in the

exercise of the powers granted to it. Lastly, respondents argue that the imposition of the Universal Charge is not oppressive and

confiscatory since it is an exercise of the police power of the State and it complies with the requirements of due process. [23]
On its part, respondent PECO argues that it is duty-bound to collect and remit the amount pertaining to the Missionary Electrification

and Environmental Fund components of the Universal Charge, pursuant to Sec. 34 of the EPIRA and the Decisions in ERC Case

Nos. 2002-194 and 2002-165. Otherwise, PECO could be held liable under Sec. 46[24] of the EPIRA, which imposes fines and

penalties for any violation of its provisions or its IRR.[25]

The Issues

The ultimate issues in the case at bar are:

1) Whether or not, the Universal Charge imposed under Sec. 34 of the EPIRA is a tax; and

2) Whether or not there is undue delegation of legislative power to tax on the part of the ERC. [26]

Before we discuss the issues, the Court shall first deal with an obvious procedural lapse.

Petitioners filed before us an original action particularly denominated as a Complaint assailing the constitutionality of Sec.

34 of the EPIRA imposing the Universal Charge and Rule 18 of the EPIRA's IRR. No doubt, petitioners have locus standi. They

impugn the constitutionality of Sec. 34 of the EPIRA because they sustained a direct injury as a result of the imposition of the

Universal Charge as reflected in their electric bills.

However, petitioners violated the doctrine of hierarchy of courts when they filed this Complaint directly with

us. Furthermore, the Complaint is bereft of any allegation of grave abuse of discretion on the part of the ERC or any of the public

respondents, in order for the Court to consider it as a petition for certiorarior prohibition.

Article VIII, Section 5(1) and (2) of the 1987 Constitution[27] categorically provides that:

SECTION 5. The Supreme Court shall have the following powers:

1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and
over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the rules of court may
provide, final judgments and orders of lower courts in:
 (a) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question.

But this Court's jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, and habeas corpus, while concurrent

with that of the regional trial courts and the Court of Appeals, does not give litigants unrestrained freedom of choice of forum from

which to seek such relief.[28] It has long been established that this Court will not entertain direct resort to it unless the redress desired

cannot be obtained in the appropriate courts, or where exceptional and compelling circumstances justify availment of a remedy

within and call for the exercise of our primary jurisdiction. [29] This circumstance alone warrants the outright dismissal of the present

action.

This procedural infirmity notwithstanding, we opt to resolve the constitutional issue raised herein. We are aware that if the

constitutionality of Sec. 34 of the EPIRA is not resolved now, the issue will certainly resurface in the near future, resulting in a repeat

of this litigation, and probably involving the same parties. In the public interest and to avoid unnecessary delay, this Court renders its

ruling now.

The instant complaint is bereft of merit.

The First Issue

To resolve the first issue, it is necessary to distinguish the States power of taxation from the police power.

The power to tax is an incident of sovereignty and is unlimited in its range, acknowledging in its very nature no limits, so that security

against its abuse is to be found only in the responsibility of the legislature which imposes the tax on the constituency that is to pay

it.[30] It is based on the principle that taxes are the lifeblood of the government, and their prompt and certain availability is an

imperious need.[31] Thus, the theory behind the exercise of the power to tax emanates from necessity; without taxes, government

cannot fulfill its mandate of promoting the general welfare and well-being of the people.[32]

On the other hand, police power is the power of the state to promote public welfare by restraining and regulating the use of liberty

and property.[33] It is the most pervasive, the least limitable, and the most demanding of the three fundamental powers of the State.

The justification is found in the Latin maxims salus populi est suprema lex (the welfare of the people is the supreme law) and sic

utere tuo ut alienum non laedas (so use your property as not to injure the property of others). As an inherent attribute of sovereignty

which virtually extends to all public needs, police power grants a wide panoply of instruments through which the State, as parens

patriae, gives effect to a host of its regulatory powers.[34] We have held that the power to "regulate" means the power to protect,
foster, promote, preserve, and control, with due regard for the interests, first and foremost, of the public, then of the utility and of its

patrons.[35]

The conservative and pivotal distinction between these two powers rests in the purpose for which the charge is made. If

generation of revenue is the primary purpose and regulation is merely incidental, the imposition is a tax; but if regulation is the

primary purpose, the fact that revenue is incidentally raised does not make the imposition a tax. [36]

In exacting the assailed Universal Charge through Sec. 34 of the EPIRA, the State's police power, particularly its regulatory

dimension, is invoked. Such can be deduced from Sec. 34 which enumerates the purposes for which the Universal Charge is

imposed[37] and which can be amply discerned as regulatory in character. The EPIRA resonates such regulatory purposes, thus:

SECTION 2. Declaration of Policy. It is hereby declared the policy of the State:

(a) To ensure and accelerate the total electrification of the country;

(b) To ensure the quality, reliability, security and affordability of the supply of electric power;
(c) To ensure transparent and reasonable prices of electricity in a regime of free and fair competition and full
public accountability to achieve greater operational and economic efficiency and enhance the
competitiveness of Philippine products in the global market;
(d) To enhance the inflow of private capital and broaden the ownership base of the power generation,
transmission and distribution sectors;
(e) To ensure fair and non-discriminatory treatment of public and private sector entities in the process of
restructuring the electric power industry;
(f) To protect the public interest as it is affected by the rates and services of electric utilities and other providers
of electric power;
(g) To assure socially and environmentally compatible energy sources and infrastructure;
(h) To promote the utilization of indigenous and new and renewable energy resources in power generation in
order to reduce dependence on imported energy;
(i) To provide for an orderly and transparent privatization of the assets and liabilities of the National Power
Corporation (NPC);
(j) To establish a strong and purely independent regulatory body and system to ensure consumer protection and
enhance the competitive operation of the electricity market; and
(k) To encourage the efficient use of energy and other modalities of demand side management.

From the aforementioned purposes, it can be gleaned that the assailed Universal Charge is not a tax, but an exaction in the

exercise of the State's police power. Public welfare is surely promoted.

Moreover, it is a well-established doctrine that the taxing power may be used as an implement of police power.[38] In Valmonte v.

Energy Regulatory Board, et al.[39] and in Gaston v. Republic Planters Bank,[40] this Court held that the Oil Price Stabilization Fund

(OPSF) and the Sugar Stabilization Fund (SSF) were exactions made in the exercise of the police power. The doctrine was

reiterated in Osmea v. Orbos[41] with respect to the OPSF. Thus, we disagree with petitioners that the instant case is different from

the aforementioned cases. With the Universal Charge, a Special Trust Fund (STF) is also created under the administration of

PSALM.[42] The STF has some notable characteristics similar to the OPSF and the SSF, viz.:

1) In the implementation of stranded cost recovery, the ERC shall conduct a review to determine whether
there is under-recovery or over recovery and adjust (true-up) the level of the stranded cost recovery
charge. In case of an over-recovery, the ERC shall ensure that any excess amount shall be remitted to the
STF. A separate account shall be created for these amounts which shall be held in trust for any future
claims of distribution utilities for stranded cost recovery. At the end of the stranded cost recovery period,
any remaining amount in this account shall be used to reduce the electricity rates to the end-users.[43]
 2) With respect to the assailed Universal Charge, if the total amount collected for the same is greater than
the actual availments against it, the PSALM shall retain the balance within the STF to pay for periods
where a shortfall occurs.[44]

3) Upon expiration of the term of PSALM, the administration of the STF shall be transferred to the DOF or
any of the DOF attached agencies as designated by the DOF Secretary. [45]

The OSG is in point when it asseverates:

Evidently, the establishment and maintenance of the Special Trust Fund, under the last paragraph of Section
34, R.A. No. 9136, is well within the pervasive and non-waivable power and responsibility of the government to
secure the physical and economic survival and well-being of the community, that comprehensive sovereign
authority we designate as the police power of the State.[46]

This feature of the Universal Charge further boosts the position that the same is an exaction imposed primarily in pursuit of the

State's police objectives. The STF reasonably serves and assures the attainment and perpetuity of the purposes for which the

Universal Charge is imposed, i.e., to ensure the viability of the country's electric power industry.

The Second Issue

The principle of separation of powers ordains that each of the three branches of government has exclusive cognizance of

and is supreme in matters falling within its own constitutionally allocated sphere. A logical corollary to the doctrine of separation of

powers is the principle of non-delegation of powers, as expressed in the Latin maxim potestas delegata non delegari potest (what

has been delegated cannot be delegated). This is based on the ethical principle that such delegated power constitutes not only a

right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening

mind of another. [47]

In the face of the increasing complexity of modern life, delegation of legislative power to various specialized administrative agencies

is allowed as an exception to this principle.[48] Given the volume and variety of interactions in today's society, it is doubtful if the

legislature can promulgate laws that will deal adequately with and respond promptly to the minutiae of everyday life. Hence, the

need to delegate to administrative bodies - the principal agencies tasked to execute laws in their specialized fields - the authority to

promulgate rules and regulations to implement a given statute and effectuate its policies. All that is required for the valid exercise of

this power of subordinate legislation is that the regulation be germane to the objects and purposes of the law and that the regulation

be not in contradiction to, but in conformity with, the standards prescribed by the law. These requirements are denominated as the

completeness test and the sufficient standard test.

Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches

the delegate, the only thing he will have to do is to enforce it. The second test mandates adequate guidelines or limitations in the law

to determine the boundaries of the delegate's authority and prevent the delegation from running riot.[49]
The Court finds that the EPIRA, read and appreciated in its entirety, in relation to Sec. 34 thereof, is complete in all its essential

terms and conditions, and that it contains sufficient standards.

Although Sec. 34 of the EPIRA merely provides that within one (1) year from the effectivity thereof, a Universal Charge to be

determined, fixed and approved by the ERC, shall be imposed on all electricity end-users, and therefore, does not state the specific

amount to be paid as Universal Charge, the amount nevertheless is made certain by the legislative parameters provided in the law

itself. For one, Sec. 43(b)(ii) of the EPIRA provides:

SECTION 43. Functions of the ERC. The ERC shall promote competition, encourage market development,
ensure customer choice and penalize abuse of market power in the restructured electricity industry. In
appropriate cases, the ERC is authorized to issue cease and desist order after due notice and hearing. Towards
this end, it shall be responsible for the following key functions in the restructured industry:

xxxx

(b) Within six (6) months from the effectivity of this Act, promulgate and enforce, in accordance with law, a
National Grid Code and a Distribution Code which shall include, but not limited to the following:

xxxx

(ii) Financial capability standards for the generating companies, the TRANSCO, distribution utilities and
suppliers: Provided, That in the formulation of the financial capability standards, the nature and function of the
entity shall be considered: Provided, further, That such standards are set to ensure that the electric power
industry participants meet the minimum financial standards to protect the public interest. Determine, fix, and
approve, after due notice and public hearings the universal charge, to be imposed on all electricity end-users
pursuant to Section 34 hereof;

Moreover, contrary to the petitioners contention, the ERC does not enjoy a wide latitude of discretion in the determination of the

Universal Charge. Sec. 51(d) and (e) of the EPIRA[50] clearly provides:

SECTION 51. Powers. The PSALM Corp. shall, in the performance of its functions and for the attainment of its
objective, have the following powers:

xxxx

(d) To calculate the amount of the stranded debts and stranded contract costs of NPC which shall form the
basis for ERC in the determination of the universal charge;

(e) To liquidate the NPC stranded contract costs, utilizing the proceeds from sales and other property
contributed to it, including the proceeds from the universal charge.

Thus, the law is complete and passes the first test for valid delegation of legislative power.

As to the second test, this Court had, in the past, accepted as sufficient standards the following: "interest of law and

order;"[51] "adequate and efficient instruction;"[52] "public interest;"[53] "justice and equity;"[54] "public convenience and

welfare;"[55] "simplicity, economy and efficiency;"[56]"standardization and regulation of medical education;"[57] and "fair and equitable
employment practices."[58] Provisions of the EPIRA such as, among others, to ensure the total electrification of the country and the

quality, reliability, security and affordability of the supply of electric power [59] and watershed rehabilitation and management[60] meet

the requirements for valid delegation, as they provide the limitations on the ERCs power to formulate the IRR. These are sufficient

standards.

It may be noted that this is not the first time that the ERC's conferred powers were challenged. In Freedom from Debt Coalition v.

Energy Regulatory Commission,[61] the Court had occasion to say:

In determining the extent of powers possessed by the ERC, the provisions of the EPIRA must not be read in
separate parts. Rather, the law must be read in its entirety, because a statute is passed as a whole, and is
animated by one general purpose and intent. Its meaning cannot to be extracted from any single part thereof
but from a general consideration of the statute as a whole. Considering the intent of Congress in enacting the
EPIRA and reading the statute in its entirety, it is plain to see that the law has expanded the jurisdiction of the
regulatory body, the ERC in this case, to enable the latter to implement the reforms sought to be accomplished
by the EPIRA. When the legislators decided to broaden the jurisdiction of the ERC, they did not intend to
abolish or reduce the powers already conferred upon ERC's predecessors. To sustain the view that the ERC
possesses only the powers and functions listed under Section 43 of the EPIRA is to frustrate the objectives of
the law.

In his Concurring and Dissenting Opinion[62] in the same case, then Associate Justice, now Chief Justice, Reynato S. Puno

described the immensity of police power in relation to the delegation of powers to the ERC and its regulatory functions over electric

power as a vital public utility, to wit:

Over the years, however, the range of police power was no longer limited to the preservation of public
health, safety and morals, which used to be the primary social interests in earlier times. Police power now
requires the State to "assume an affirmative duty to eliminate the excesses and injustices that are the
concomitants of an unrestrained industrial economy." Police power is now exerted "to further the public welfare
a concept as vast as the good of society itself." Hence, "police power is but another name for the governmental
authority to further the welfare of society that is the basic end of all government." When police power is
delegated to administrative bodies with regulatory functions, its exercise should be given a wide latitude. Police
power takes on an even broader dimension in developing countries such as ours, where the State must take a
more active role in balancing the many conflicting interests in society. The Questioned Order was issued by the
ERC, acting as an agent of the State in the exercise of police power. We should have exceptionally good
grounds to curtail its exercise. This approach is more compelling in the field of rate-regulation of electric power
rates. Electric power generation and distribution is a traditional instrument of economic growth that affects not
only a few but the entire nation. It is an important factor in encouraging investment and promoting business. The
engines of progress may come to a screeching halt if the delivery of electric power is impaired. Billions of pesos
would be lost as a result of power outages or unreliable electric power services. The State thru the ERC should
be able to exercise its police power with great flexibility, when the need arises.

This was reiterated in National Association of Electricity Consumers for Reforms v. Energy Regulatory Commission[63] where the

Court held that the ERC, as regulator, should have sufficient power to respond in real time to changes wrought by multifarious

factors affecting public utilities.

From the foregoing disquisitions, we therefore hold that there is no undue delegation of legislative power to the ERC.

Petitioners failed to pursue in their Memorandum the contention in the Complaint that the imposition of the Universal

Charge on all end-users is oppressive and confiscatory, and amounts to taxation without representation. Hence, such contention is

deemed waived or abandoned per Resolution[64] of August 3, 2004.[65] Moreover, the determination of whether or not a tax is
excessive, oppressive or confiscatory is an issue which essentially involves questions of fact, and thus, this Court is precluded from

reviewing the same.[66]

As a penultimate statement, it may be well to recall what this Court said of EPIRA:

One of the landmark pieces of legislation enacted by Congress in recent years is the EPIRA. It established a
new policy, legal structure and regulatory framework for the electric power industry. The new thrust is to tap
private capital for the expansion and improvement of the industry as the large government debt and the highly
capital-intensive character of the industry itself have long been acknowledged as the critical constraints to the
program. To attract private investment, largely foreign, the jaded structure of the industry had to be addressed.
While the generation and transmission sectors were centralized and monopolistic, the distribution side was
fragmented with over 130 utilities, mostly small and uneconomic. The pervasive flaws have caused a low
utilization of existing generation capacity; extremely high and uncompetitive power rates; poor quality of service
to consumers; dismal to forgettable performance of the government power sector; high system losses; and an
inability to develop a clear strategy for overcoming these shortcomings.

Thus, the EPIRA provides a framework for the restructuring of the industry, including the privatization of the
assets of the National Power Corporation (NPC), the transition to a competitive structure, and the delineation of
the roles of various government agencies and the private entities. The law ordains the division of the industry
into four (4) distinct sectors, namely: generation, transmission, distribution and supply.
Corollarily, the NPC generating plants have to privatized and its transmission business spun off and privatized
thereafter.[67]

Finally, every law has in its favor the presumption of constitutionality, and to justify its nullification, there must be a clear and

unequivocal breach of the Constitution and not one that is doubtful, speculative, or argumentative.[68] Indubitably, petitioners failed to

overcome this presumption in favor of the EPIRA.We find no clear violation of the Constitution which would warrant a

pronouncement that Sec. 34 of the EPIRA and Rule 18 of its IRR are unconstitutional and void.

WHEREFORE, the instant case is hereby DISMISSED for lack of merit.

SO ORDERED.