G.R. No.

235058, September 04, 2018

CONSERTINO C. SANTOS, Petitioner, v. COMMISSION ON ELECTIONS (COMELEC) EN BANC AND JENNIFER

ANTIQUERA ROXAS, Respondents

[G.R. NO. 235064]

RICARDO ESCOBAR SANTOS AND MA. ANTONIA CARBALLO CUNETA, Petitioners, v.COMMISSION ON ELECTIONS
AND JENNIFER ANTIQUERA ROXAS, Respondents.

DECISION

GESMUNDO, J.:

These are petitions for certiorari and prohibition with urgent prayer for the issuance of a temporary restraining
order (TRO) and/or status quo ante order and/or preliminary injunction seeking to annul and set aside the
November 8, 2017 Writ of Execution1 of the Commission on Elections (COMELEC-En Banc)in SPA Case No. 15-029
(DC), a case for declaration of a nuisance candidate.

The Antecedents

On October 14, 2015, Jennifer Antiquera Roxas (respondent) filed a certificate of candidacy for the position of
member of the Sangguniang Panlungsod for the First District of Pasay City for the May 9, 2016 National and Local
Elections.

On October 21, 2015, respondent filed a petition for disqualification against Rosalie Isles Roxas (Rosalie)before the
COMELEC praying that the latter be declared a nuisance candidate because her certificate of candidacy (COC) was
only filed for the sole purpose of causing confusion among the voters by the similarity of their names. She pointed
out that Rosalie stated that her nickname was "Jenn-Rose," to impersonate the former, when Rosalie's real
nickname was actually "Saleng."

Respondent also argued that Rosalie's intent to confuse the voters was apparent because she chose the name
"Roxas Jenn-Rose" to appear in the official ballot even though respondent, a re-electionist candidate, was already
using the name "Roxas Jenny" for election purposes.

After the parties filed their respective memoranda, the case was submitted for resolution.

In its Resolution2 dated March 30, 2016, the COMELEC Second Division granted the petition and declared Rosalie a
nuisance candidate. It found that Rosalie suspiciously indicated her name in the ballot to be "Roxas Jenn-Rose,"
which was strikingly similar with respondent's name in the ballot as "Roxas Jenny." The COMELEC also observed
that the nickname "Jenn-Rose" did not resemble the name of Rosalie as her real nickname was actually "Saleng." It
further opined that Rosalie was not financially capable of sustaining the rigors of waging a campaign. COMELEC
concluded that the candidacy of Rosalie was clearly meant to cause confusion among the voters with respect to
respondent's name and that Rosalie had no bona fide intention to run for office. The dispositive portion of the
resolution states:

WHEREFORE, the Petition is GRANTED. Accordingly, ROSALIE ISLES ROXAS, is hereby declared a NUISANCE
CANDIDATE and her Certificate of Candidacy for Member, Sangguiniang [Panlungsod] of Pasay City for the May 9,
2016 National and Local Elections is hereby CANCELLED.

SO ORDERED.3
On April 18, 2016, Rosalie filed a motion for reconsideration, consisting of three (3) pages, before the COMELEC.

While the motion for reconsideration was pending with the COMELEC, the National and Local Elections proceeded
on May 9, 2016. The City Board of Canvassers4 stated the following results of the elections:

Names Votes Garnered Ranking

Calixto, Mark 51,369 1

Advincula, Jerome 45,986 2

Cuneta, Ma. Antonia 41,835 3

Alvina, Abet 36,994 4

Santos, Ricardo 35,756 5

Santos, Consertino 34,291 6

Roxas, Jenny 33,738 7

xxxx

Roxas, Jenn-Rose 13,328 14

The top six (6) candidates were proclaimed as duly elected members of the First District of theSangguniang
Panlungsod of Pasay City. Respondent was not included because she ranked in 7 th place; while Rosalie ranked in
14th place with 13,328 votes.

On May 20, 2016, respondent filed an Election Protest Ad Cautelam5 against Consertino C. Santos (Santos) before
the COMELEC praying, among others, that the votes cast for Rosalie, who was declared a nuisance candidate, be
credited to her, that the proclamation of Santos as a member of the Sangguniang Panlungsod for the First District
of Pasay be annulled, and that she be proclaimed as the winning candidate for the Sangguniang Panlungsod of
First District of Pasay City. Later, respondent amended her protest and added Jerome Advincula, Alberto Alvina,
Ma. Antonia Carballo Cuneta (Antonia) and Ricardo Escobar Santos (Ricardo), as they were also proclaimed as
members of the Sangguniang Panlungsod.

Meanwhile, on July 22, 2016, or more than two (2) months after the elections, the COMELEC-En Banc issued a
Resolution6 denying Rosalie's motion for reconsideration as follows:

WHEREFORE, premises considered, the Motion for Reconsideration is hereby DENIED for lack of merit. The
Resolution dated 30 March 2016 of the Commission (Second Division) is hereby AFFIRMED.

SO ORDERED.7

The process server of COMELEC attempted to personally serve the July 22, 2016 resolution to the counsel of
Rosalie on July 27, 2016 and August 18, 2016. However, despite earnest efforts, the resolution was not served
because the office of Rosalie's counsel was always closed and the guard on duty refused to receive the same.

On November 14, 2016, respondent filed a motion for execution. In its November 17, 2016 order, the COMELEC-
En Banc considered the July 22, 2016 resolution as served. In its Certificate of Finality8 dated February 15, 2017,
the COMELEC-En Banc declared its July 22, 2016 resolution final and executory.

On March 31, 2017, Ricardo, who was not a party in the nuisance case, filed a Manifestation of Grave Concern with
Omnibus Motion [i. To admit attached strong opposition; ii. To defer issuance of writ of execution while this
motion is pending; iii. To limit the tenor of the writ of execution to a declaration that respondent is a nuisance
candidate; and iv. To immediately set the instant motion for hearing].9

On April 4, 2017, Ricardo filed an Extremely Urgent Motion to Set the Case for Hearing. 10

On April 4, 2017, the COMELEC-En Banc issued a Writ of Execution11 (first writ of execution) to implement the
March 30, 2016 and July 22, 2016 resolutions, to wit:

NOW THEREFORE, you are hereby DIRECTED to immediately implement this Writ of Execution by serving a copy
hereof together with certified true copy of the Resolutions of the Second Division, and of the En Banc, of this
Commission, dated 30 March 2016 and 22 July 2016, respectively, upon respondent ROSALIE ISLES ROXAS and to
submit a return of service thereof to the Clerk of the Commission.

For this purpose, the Commission hereby DIRECTS, after due notice to the parties, the Special City Board of
Canvassers (SCBOC) of Pasay City, composed of:

xxxx

to do the following:

1. CONVENE on April 20, 2017, 10:00 a.m., at the Comelec Session Hall, 8th Floor, Palacio del Gobernador
Building, Intramuros, Manila, with notice to all affected parties;

2. COUNT the Thirteen Thousand Three Hundred Twenty-Eight (13,328) votes cast for [Rosalie] in favor of
the [respondent] and AMEND the total number of votes garnered by the latter to Forty Seven Thousand
Sixty-Six (47,066); and

3. SUBMIT, within three (3) days from reconvening, a report to the Commission En Banc on the total number
of votes garnered by all the affected candidates for the position of the Sangguniang Panlungsod of Pasay
City and await for further orders;

Accordingly, Dir. Ester Villaflor-Roxas is directed to submit before the Special City Board of Canvassers (SCBOC) a
certified true copy of the votes of candidates in the May 9, 2016 National and Local Elections.

SO ORDERED.12

On April 20, 2017, the Special City Board of Canvassers of Pasay City (SCBOC) convened and counted 13,328 votes
for respondent and consequently amended the statement of votes relevant to the position of members of
the Sangguniang Panlungsod for the May 9, 2016 National and Local Elections.

Meanwhile, on April 24, 2017, Ricardo filed a separate Petition for Annulment of the Illegal Proceedings of the
Special Board of Canvassers of Pasay City with Extremely Urgent Prayer for Issuance of Status Quo Ante Order and
Suspension of the Effects of the Illegal Proceedings.13 The case was docketed as SPC No. 17-001.

In the nuisance case, on April 25, 2017, Ricardo filed a Manifestation with Omnibus Motion [i. To quash the writ of
execution issued in this case; and ii. To admit the foregoing submission]. 14

On October 25, 2017, Ricardo also filed an Extremely Urgent Manifestation with Motion 15 where he reiterated that
the first writ of execution had been rendered moot by the election protest filed by respondent. On November 3,
2017, Ricardo filed a Reiterative Omnibus Motion16 requesting/praying that the SCBOC be directed to cease and
desist from recanvassing the votes.

On November 8, 2017, the COMELEC-En Banc issued its Order17 denying the motions of Ricardo for lack of merit
and considering that there were other actions pending before the COMELEC that would sufficiently address the
issues raised.

On the same day, the COMELEC-En Banc issued another writ of execution (second writ of execution), which states:

NOW THEREFORE, you are hereby DIRECTED to immediately implement this Writ of Execution by serving a copy
hereof together with certified true copy of the Resolutions of the Second Division and of the En Banc, of this
Commission. dated 30 March 2016 and 22 July 2016, respectively, upon respondent ROSALIE ISLES ROXAS and to
submit a return of service thereof to the Clerk of the Commission.

For this purpose, the Commission hereby DIRECTS, after due notice to the affected parties, the Special City Board
of Canvassers for the First District of Pasay City, composed of:

xxxx

to do the following:

1. CONVENE on 5 December 2017, 3:00p.m., at the Comelec Session Hall, 8th Floor, Palacio del Gobernador
Building, Intramuros, Manila;

2. ANNUL the proclamation of Jerome Ruiz Advincula, Ma. Antonia Carballo Cuneta, Alberto Cerdeña Alvina,
Ricardo Escobar Santos, and Consertino Claudio Santos as the 2nd, 3rd, 4th, 5th and 6th Members of the
Sangguniang Panlungsod for the First District of Pasay City;

3. AMEND/CORRECT the Certificate of Canvass of Votes and Proclamation of Sangguniang Panlungsod

Members for the First District of Pasay City based on the Amended Statement of Votes by Precinct.

4. PROCLAIM the following as the duly elected Members of the Sangguniang Panlungsod Members for the
First District of Pasay City:

Names of Candidates Number of Votes Ranking

Calixto, Mark Anthony Aguas 51,369 1

Roxas, Jennifer Antiquera 47,066 2

Advincula, Jerome Ruiz 45,986 3

Cuneta, Ma. Antonia Carballo 41,835 4

Alvina, Alberto Cerdeña 36,994 5

Santos, Ricardo Escobar 35,756 6

Accordingly, Dir. Ester Villafor-Roxas [member of the SCBOC] is directed to submit before the Special City Board of
Canvassers for the First District of Pasay City a certified true copy of the votes of candidates in the May 9, 2016
National and Local Elections.

Finally, the Special City Board of Canvassers of Pasay City is likewise directed to furnish copy of the Certificate of
Proclamation to the Department of Interior [and] Local Government (DILG), Secretary of the Sangguniang
Panlungsod for the First District of Pasay City and affected parties.

SO ORDERED.18

Santos, Ricardo and Antonia, collectively referred to as petitioners, were served with a copy of the second writ of
execution.

Hence, these consolidated petitions:

I. In G.R. No. 235064, Ricardo And Antonia anchored their petition on the following issues:

A. PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED WRIT OF EXECUTION DATED
NOVEMBER 8, 2017, WITHOUT AFFORDING THE PETITIONERS THE OPPORTUNITY TO BE HEARD IN CLEAR
VIOLATION OF THEIR CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.

B. PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED WRIT OF EXECUTION DATED
NOVEMBER 8, 2017 IN VIOLATION OF THE RULE ON IMMUTABILITY OF JUDGMENTS GIVEN THAT THE
DIRECTIVES MENTIONED IN THE CHALLENGED WRIT OF EXECUTION WERE NOT INCLUDED IN THE MARCH
30, 2016 AND JULY 22, 2016 RESOLUTIONS OF THE PUBLIC RESPONDENT COMELEC IN SPA NO. 15-029
(DC).

C. PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED WRIT OF EXECUTION DATED
NOVEMBER 8, 2017 IN VIOLATION OF COMELEC RESOLUTION NO. 10083.19
II. In G.R. No. 235058, Santos raised the following issues:

A. PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED WRIT OF EXECUTION DATED 8
NOVEMBER 2017, WHICH DIRECTED THE ANNULMENT OF THE PROCLAMATION OF THE PETITIONER AS
MEMBER OF THE SANGGUNIANG [PANLUNGSOD] OF THE FIRST DISTRICT OF PASAY CITY AND THE
PROCLAMATION OF PRIVATE RESPONDENT JENNIFER, WITHOUT AFFORDING THE PETITIONER THE
OPPORTUNITY TO BE HEARD IN CLEAR VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF
LAW.

B. PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT DIRECTED THE CREDITING OF THE VOTES RECEIVED BY
ROSALIE TO THE VOTES RECEIVED BY PRIVATE RESPONDENT JENNIFER AND THE
AMENDMENT/CORRECTION OF THE CERTIFICATE OF CANVASS OF VOTES AND PROCLAMATION OF
SANGGUNIANG [PANLUNGSOD] MEMBERS FOR THE FIRST DISTRICT OF PASAY CITY BASED ON THE
AMENDMENT STATEMENT OF VOTES BY PRECINCT AS THIS VIOLATES THE RULE ON IMMUTABILITY OF
JUDGMENTS GIVEN THAT THE AFOREMENTIONED UNDERTAKINGS WERE NOT INCLUDED IN THE
RESOLUTION OF THE PUBLIC RESPONDENT COMELEC DATED 30 MARCH 2016 AND 22 JULY 2016.

C. PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED WRIT OF EXECUTION WHICH
BLATANTLY VIOLATED SECTION 11 OF COMELEC RESOLUTION NO. 10083.20

Petitioners argue that they were deprived of due process when the COMELEC-En Banc hastily issued the first and
second writs of execution without any actual or constructive notice to them; that the said writs did not conform to
the dispositive portion of the March 30, 2016 and July 22, 2016 resolutions of the COMELEC because the
resolutions were silent as to the crediting of the votes of Rosalie in favor of respondent; that under Section 11 of
COMELEC Resolution No. 10083, the votes of a nuisance candidate can only be credited to the legitimate candidate
if the decision or resolution is final and executory before the proclamation of the winning candidate.

Petitioners also assert that the March 30, 2016 resolution of the COMELEC-Second Division which was affirmed in
the July 22, 2016 resolution of the COMELEC-En Banc merely declared Rosalie a nuisance candidate; as these
resolutions only became final after the proclamation of the winners, there must be a separate election protest or
action in order to determine whether the votes for the nuisance candidate are stray votes or can be credited to the
legitimate candidate. They also contend that a TRO and/or status quo ante order and/or preliminary injunction
must be issued to prevent serious and irreparable damage, not only to petitioners, but also to the electorate of the
first district of Pasay City.

In its Resolution21 dated November 28, 2017, the Court issued a TRO effective immediately and directed COMELEC-
En Banc to cease and desist from implementing the second writ of execution.

In her Consolidated Comment,22 respondent countered that she continues to suffer the consequences of that evil
brought by the nuisance candidate when the COMELEC belatedly ruled on her nuisance case and when the Court
issued a TRO; that petitioners were never denied due process because Ricardo was able to file several motions in
the nuisance case and that they were notified during the implementation of the first and second writs of
execution; and that the crediting of votes in respondent's favor was purely a legal consequence of the declaration
that Rosalie was a nuisance candidate.
In its Consolidated Corpment,23 the OSG cited Dela Cruz v. COMELEC24 and asserted that the rule on crediting votes
can be applied even if the resolution declaring a nuisance candidate became final and executory after the
elections. However, it stated that the votes for a nuisance candidate in a multi-slot office should not be
automatically credited. to the legitimate candidate. It explained that in a multi-slot office, a voter may choose
more than one candidate, hence, it is possible that the legitimate candidate and nuisance candidate may both
receive votes in one ballot. In that case, the vote cast for the nuisance candidate must no longer be credited to the
legitimate candidate, otherwise, the latter shall receive two votes from one voter.

The OSG highlighted that the system of automatically crediting the votes of the nuisance candidate in favor of the
legitimate candidate in a multi-slot office may be exploited. A legitimate candidate may seek another person with
the same surname to file a candidacy for the same position and the latter will opt to be declared a nuisance
candidate. In that scenario, the first candidate shall receive all the votes of the nuisance candidate and may even
receive double votes, thereby, drastically increasing his odds. Thus, the OSG averred that the simple arithmetic of
adding the votes of the nuisance candidate to the legitimate candidate should not be applied in a multi-slot office.

In their Consolidated Reply,25 petitioners reiterated that they were denied due process when theCOMELEC-En
Banc issued the first and second writs of execution; and that since the March 30, 2016 and July 22, 2016
resolutions of the COMELEC only became final and executory after the elections, the 13,328 votes of Rosalie
should be considered as stray votes.

The Court's Ruling

The Court affirms with modification the November 8, 2017 writ of execution of the COMELEC-En Banc.

The COMELEC's declaration of Rosalie as a nuisance candidate, which was sought to be implemented by the
assailed writ of execution resulted into: (1) Antonia and Ricardo's ranking were changed from 3 rd and 5th place to
4th and 6th place, respectively; and (2) Constantino was dislodged as a winning candidate as member of
the Sangguniang Panlungsod of the First District of Pasay City.

Nuisance Candidates

Section 69 of Batas Pambansa (B.P.) Blg. 881, or the Omnibus Election Code, defines nuisance candidates as follow:

Sec. 69. Nuisance candidates. - The Commission may motu proprio or upon a verified petition of an interested
party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been
filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity
of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the
candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and
thus prevent a faithful determination of the true will of the electorate.

The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have
not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure
that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the
practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the
opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation
for the election. These practical difficulties should, of course, never exempt the State from the conduct of a
mandated electoral exercise. At the same time, remedial actions should be available to alleviate these logistical
hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of
inefficiency, but a rot that erodes faith in our democratic institutions.26

A petition for disqualification of a nuisance candidate clearly affects the voters' will and causes confusion that
frustrates the same. This is precisely what election laws are trying to protect. They give effect to, rather than
frustrate, the will of the voter. Thus, extreme caution should be observed before any ballot is invalidated. Further,
in the appreciation of ballots, doubts are resolved in favor of their validity. 27

By their very nature, proceedings in cases of nuisance candidates require prompt disposition. The declaration of a
duly registered candidate as a nuisance candidate results in the cancellation of his COC. The law mandates the
COMELEC and the courts to give priority to cases of disqualification to the end that a final decision shall be
rendered not later than seven days before the election in which the disqualification is sought. In many instances,
however, proceedings against nuisance candidates remained pending and undecided until election day and even
after canvassing of votes had been completed.28

The Court has resolved several petitions involving cases where the COMELEC declared a nuisance candidate before
and after the elections.

In Bautista v. COMELEC (Bautista),29 the case involved the disqualification of Edwin "Efren" Bautista as a nuisance
candidate for the position of mayor in Navotas because his name was confusingly similar to Cipriano "Efren"
Bautista and he had no financial means to support a campaign. Several days before the election or on April 30,
1998, the COMELEC issued a resolution declaring Edwin Bautista as a nuisance candidate and ordered the
cancellation of his COC. A motion for reconsideration was filed and it was only resolved by COMELEC on May 13,
1998, or after the elections. Thus, a separate tally for "EFREN BAUTISTA", "EFREN", "E. BAUTISTA", and "BAUTISTA"
were made by the municipal board of canvassers. Cipriano Bautista filed a petition to declare illegal the
proceedings of the municipal board of canvassers, but, it was denied by the COMELEC stating that the separate
tallies should be considered as stray votes.

On appeal, the Court reversed the COMELEC. It ruled that the separate tallies were made to remedy any prejudice
that may be caused by the inclusion of a potential nuisance candidate. Such inclusion was brought about by
technicality, specifically Edwin Bautista's filing of a motion for reconsideration, which prevented the April 30, 1998
resolution from becoming final at that time. Ideally, the matter should have been resolved with finality prior to
election day. Its pendency on election day exposed the evils brought about by the inclusion of a nuisance
candidate.

The Court further held therein that the votes separately tallied were not stray votes. It emphasized that a stray
vote is invalid because there is no way of determining the real intention of the voter. In that case, however, it was
clear that the votes for Edwin "Efren" Bautista were actually intended by the electorate for Cipriano "Efren"
Bautista, thus, the votes for Edwin "Efren" Bautista should be credited in favor of Cipriano "Efren" Bautista. The
Court also underscored that:

As we said earlier, the instant petition is laden with an issue which involves several ramifications. Matters tend to
get complicated when technical rules are strictly applied. True it is, the disqualification of Edwin Bautista was not
yet final on election day. However, it is also true that the electorate of Navotas was informed of such
disqualification. The voters had constructive as well as actual knowledge of the action of the COMELEC delisting
Edwin Bautista as a candidate for mayor. Technicalities should not be permitted to defeat the intention of the
voter, especially so if that intention is discoverable from the ballot itself, as in this case.30 (emphasis supplied)

Similarly, Martinez III v. House of Representatives Electoral Tribunal31(Martinez III) involved a petition to declare
Edilito C. Martinez a nuisance candidate for the position of representative in the fourth legislative district of Cebu
because his name was confusingly similar with Celestino A. Martinez III. The COMELEC rendered a decision
declaring Edilito Martinez as a nuisance candidate only on June 12, 2007, or almost one (1) month after the
elections. Thus, the jurisdiction regarding the election was transferred to the House of Representatives· Electoral
Tribunal (HRET) and Celestino Martinez III filed an election protest therein against the winning candidate Benhur
Salimbangon. The HRET ruled that the ballots containing "MARTINEZ" and "C. MARTINEZ" should not be counted in
favor of Celestino Martinez III because Edilito Martinez was not yet declared a nuisance candidate at the time of
the elections.

The Court reversed the HRET and held that the votes for "MARTINEZ" and "C. MARTINEZ" should have been
counted in favor of Celestino Martinez III because such votes could not have been intended for Edilito C. Martinez,
who was declared a nuisance candidate in a final judgment. It emphasized that the candidacy of Edilito C. Martinez
was obviously meant to confuse the electorate. The Court also stated that Celestino Martinez III should not have
been prejudiced by the COMELEC's lethargy in resolving the nuisance case. It was explained therein:

Ensconced in our jurisprudence is the well-founded rule that laws and statutes governing election contests
especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice
of public officials may not be defeated by technical infirmities. An election protest is imbued with public interest so
much so that the need to dispel uncertainties which becloud the real choice of the people is imperative. The
prohibition against nuisance candidates is aimed precisely at preventing uncertainty and confusion in ascertaining
the true will of the electorate. Thus, in certain situations as in the case at bar, final judgments declaring a
nuisance candidate should effectively cancel the certificate of candidacy filed by such candidate as of election
day. Otherwise, potential nuisance candidates will continue to put the electoral process into mockery by filing
certificates of candidacy at the last minute and delaying resolution of any petition to declare them as nuisance
candidates until elections are held and the votes counted and canvassed.32 (emphasis and underscoring supplied)

Recently, in Dela Cruz v. COMELEC33(Dela Cruz), a petition to declare Aurelio Dela Cruz a nuisance candidate for the
position of vice-mayor of Bugasong, Antique was filed because his name was confusingly similar with the name of
Casimir Dela Cruz and the former did not have the financial capacity to campaign for the elections. On January 29,
2010, the COMELEC declared Aurelio Dela Cruz a nuisance candidate, however, his name was not deleted in the
certified list of candidates and he still received votes during the automated elections. In its Resolution No. 8844,
the COMELEC stated that the votes for Aurelio Dela Cruz, a nuisance candidate, should be considered stray. Thus,
Casimir Dela Cruz filed a petition for certiorari before the Court to annul and set aside the said resolution.

In reversing the COMELEC, the Court ruled that even in the automated elections, the votes for the nuisance
candidate should still be credited to the legitimate candidate. It held that the previous COMELEC Resolution No.
4116 – declaring that the vote cast for a nuisance candidate, who had the same surname as the legitimate
candidate, should be counted in favor of the latter – remains good law. The Court underscored that:

xxx the possibility of confusion in names of candidates if the names of nuisance candidates remained on the
ballots on election day, cannot be discounted or eliminated, even under the automated voting system especially
considering that voters who mistakenly shaded the oval beside the name of the nuisance candidate instead of the
bona fide candidate they intended to vote for could no longer ask for replacement ballots to correct the same.

Finally, upholding the former rule in Resolution No. 4116 is more consistent with the rule well-ensconced in our
jurisprudence that laws and statutes governing election contests especially appreciation of ballots must be
liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated
by technical infirmities. Indeed, as our electoral experience had demonstrated, such infirmities and delays in the
delisting of nuisance candidates from both the Certified List of Candidates and Official Ballots only made possible
the very evil sought to be prevented by the exclusion of nuisance candidates during elections. 34 (emphases
supplied)

Accordingly, the Court consistently declared that the votes cast for the nuisance candidate must be credited in
favor of the legitimate candidate with a similar name to give effect to, rather than frustrate, the will of the voters,
even if the declaration of the nuisance candidate became final only after the elections.

No separate proceeding to
execute a decision declaring
a nuisance candidate

Petitioners argue that although Rosalie was declared a nuisance candidate by the COMELEC, the execution of the
decision does not cover the transfer of the votes of Rosalie in favor of respondent; there must be a specific
proceeding, particularly an election protest or a petition to declare the proceedings before the board of canvassers
illegal, before the said votes could be credited so that petitioners' right to due process is respected.

The Court is not convinced.

Section 69 of the Omnibus Election Code states that the COMELEC may declare a person as a nuisance
candidate motu proprio or through a verified petition. In Dela Cruz, the Court discussed that the said petition to
declare a person as a nuisance candidate is akin to a petition to cancel or deny due course a COC under Section 78
of the Omnibus Election Code.35

A cancelled certificate cannot give rise to a valid candidacy, much less to valid votes. Said votes cannot be counted
in favor of the candidate whose COC was cancelled as he or she is not treated as a candidate at all, as if he or she
never filed a COC.36Thus, a petition to declare a person a nuisance candidate or a petition for disqualification of a
nuisance candidate is already sufficient to cancel the COC of the said candidate and to credit the garnered votes
to the legitimate candidate because it is as if the nuisance candidate was never a candidate to be voted for.

Further, while Bautista involved a petition to declare illegal the proceedings of the municipal board of canvassers
and Martinez involved an election protest under jurisdiction of the HRET before the votes for the nuisance
candidate was credited to the legitimate candidate, the same cannot be said with Dela Cruz.

In Dela Cruz, the petition simply involved the petition for certiorari for the annulment of COMELEC Resolution No.
8844. The Court credited the votes of the nuisance candidate in favor of the legitimate candidate even though
there was neither an election protest nor a petition to declare the proceedings before the board of canvassers
illegal. The votes were counted in favor of the legitimate candidate because there was already a final and
executory judgment declaring a nuisance candidate.

Evidently, as seen in Bautista, Martinez III and Dela Cruz, the Court does not require a specific or special
proceeding before the votes of the nuisance candidate is credited to the legitimate candidate. As long as there is a
final and executory judgment declaring a person a nuisance candidate, the votes received by the nuisance
candidate shall be credited to the legitimate candidate.

Likewise, to subscribe to petitioners' argument – that there should be a separate proceeding solely for the purpose
of crediting the votes in favor of the legitimate candidate – would be absurd. When a candidate is declared a
nuisance candidate, it certainly follows that he or she cannot be voted for as he or she is not a candidate,
consequently, the votes shall be credited to the legitimate candidate. Evidently, the crediting of the votes is a
logical consequence of the final decision in the nuisance case because the vote for the nuisance candidate is
considered a vote for the legitimate candidate. It would be the height of injustice to require the legitimate
candidate to initiate a separate proceeding for the crediting of votes when it was already declared that there was
indeed a nuisance candidate, which confused the electorate regarding their votes for the legitimate candidate.

It is a general rule that the writ of execution should conform to the dispositive portion of the decision to be
executed, and that the execution is void if it is in excess of and beyond the original judgment or award, for it is a
settled general principle that a writ of execution must conform strictly to every essential particular of the
judgment promulgated.37 Nonetheless, the Court had held that a judgment is not confined to what appears on the
face of the decision, but extends as well to those necessarily included therein or necessary thereto.38

Here, the crediting of the votes of the nuisance candidate to respondent as a legitimate candidate, whose names
are similar, is a necessary consequence of the COMELEC's declaration that Rosalie is a nuisance candidate.
Consequently, the transfer of votes of the nuisance candidate to the legitimate candidate can be validly
accomplished in the execution proceedings of the nuisance case.

There was no violation of

the right to due process

The Court finds that in a petition for disqualification of a nuisance candidate, the only real parties in interest are
the alleged nuisance candidate, the affected legitimate candidate, whose names are similarly confusing. A real
[party-in-interest] is 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.39

In Timbol v. COMELEC40 (Timbol), it was stated that to minimize the logistical confusion caused by nuisance
candidates, their COC may be denied due course or cancelled by the petition of a legitimate candidate or by the
COMELEC. This denial or cancellation may be motu proprio or upon a verified petition of an interested party,
subject to an opportunity to be heard. It was emphasized therein that the COMELEC should balance its duty to
ensure that the electoral process is clean, honest, orderly, and peaceful with the right of an alleged nuisance
candidate to explain his or her bona fide intention to run for public office before he or she is declared a nuisance
candidate.

Thus, when a verified petition for disqualification of a nuisance candidate is filed, the real parties-in-interest are
the alleged nuisance candidate and the interested party, particularly, the legitimate candidate. Evidently, the
alleged nuisance candidate and the legitimate candidate stand to be benefited or injured by the judgment in the
suit. The outcome of the nuisance case shall directly affect the number of votes of the legitimate candidate,
specifically, whether the votes of the nuisance candidate should be credited in the former's favor.

Glaringly, there was nothing discussed in Timbol that other candidates, who do not have any similarity with the
name of the alleged nuisance candidate, are real parties-in-interest or have the opportunity to be heard in a
nuisance petition. Obviously, these other candidates are not affected by the nuisance case because their names
are not related with the alleged nuisance candidate. Regardless of whether the nuisance petition is granted or
not, the votes of the unaffected candidates shall be completely the same. Thus, they are mere silent observers in
the nuisance case.

Nevertheless, in the case at bench, even if the other candidates are not real parties-in-interest in respondent's
petition for disqualification, the Court finds that the COMELEC gave petitioners sufficient opportunity to be heard
during the execution proceedings of the nuisance case, to wit:

1. On March 31, 2017, after the nuisance case became final and executory, Ricardo filed a Manifestation of
Grave Concern with Omnibus Motion [i. To admit attached strong opposition; ii. To defer issuance of writ
of execution while this motion is pending; iii. To limit the tenor of the writ of execution to a declaration
that respondent is a nuisance candidate; and iv. To immediately set the instant motion for hearing].
2. On April 4, 2017, Ricardo filed an Extremely Urgent Motion to Set the Case for Hearing. 41
3. On April 25, 2017, Ricardo filed a Manifestation with Omnibus Motion [i. To quash the writ of execution
issued in this case; and ii. To admit the foregoing submission].42
4. On October 25, 2017, Ricardo filed an Extremely Urgent Manifestation with Motion. 43
5. On November 3, 2017, Ricardo filed a Reiterative Omnibus Motion 44 to direct the SCBOC to cease and
desist from recanvassing the votes.
6. On November 8, 2017, the COMELEC issued its Order45 denying the motions of Ricardo for lack of merit
and considering that there are already other actions pending that sufficiently address the issues raised.
7. Petitioners were served with a copy of the second writ.

Based on the foregoing, petitioners were given sufficient opportunity to be heard. Notably, Ricardo exhaustively
exercised his right to be heard and filed multiple motions and manifestations before the COMELEC during the
execution proceedings of the nuisance case. The COMELEC even considered the said incidents on the merits and
issued an order denying the same because other pending actions sufficiently address the issues raised. Petitioners
were likewise given a copy of the second writ of execution, thus, they were able to institute these present
petitions. The Court is of the view that the COMELEC properly exercised its jurisdiction and gave petitioners the
opportunity to ventilate their grievances, even though they are technically not real parties in interests in the
nuisance case.

The votes shall be credited to the

legitimate candidate regardless
whether the decision in the nuisance case becomes final and executory
before or after the elections

Petitioners argue that the votes of the nuisance candidate shall only be credited in favor of the legitimate
candidate if the decision in the nuisance case becomes final and executory before the elections.

Again, the Court is not convinced.

Section 11 (K) of COMELEC Resolution No. 10083, or the General Instructions Governing the
Consolidation/Canvass, and Transmission of Votes in connection with the May 9, 2016 National and Local Election,
states:

K. Proclamation of Winning Candidates

A candidate who obtained the highest number of votes shall be proclaimed by the Board,except the following:

a. In case the certificate of candidacy of the candidate who obtains the highest number of votes has been
cancelled or denied due course or disqualified by a final and executory Decision or Resolution before the
elections, the votes cast for such candidate shall be considered stray, hence, the Board shall proceed to
proclaim the candidate who obtains the second highest number of votes, provided, the latter's certificate
of candidacy has not likewise ·been cancelled by a final and executory Decision or Resolution before the
elections;

b. In case a candidate has been declared a nuisance candidate by final and executory Decision or
Resolution, the votes cast for the nuisance candidate shall be added to the candidate who shares the
same surname as the nuisance candidate and thereafter, the candidate who garnered the highest
number of votes shall be proclaimed;

xxxx

c. In case the certificate of candidacy of the candidate who obtains the highest number of votes has been
cancelled or denied due course or disqualified by a final and executory Decision or Resolution after the
elections and he/she obtains the highest number of votes cast for a particular position, the Board shall
not proclaim the candidate and the rule of succession, if allowed by law, shall be observed. In case the
position does not allow the rule of succession under Republic Act No. 7160, the position shall be deemed
vacant. (emphases supplied )

As stated above, Section 11 (K) (a) of COMELEC Resolution No. 10083, which refers to petitions for disqualifications
under Section 72 of the Omnibus Election Code,46 requires that the decision of the COMELEC in the said case must
become final and executory before the elections. At that moment, the votes for the candidate with the cancelled
COC shall be considered stray and the candidate who obtains the second highest number of votes shall be
proclaimed. Similarly, under Section 11 (K) (c), if the case becomes final and executory after the elections, then the
rule on succession, if allowed, shall apply. Consequently, in petitions to deny due course to or cancel a COC under
Section 72, the specific period when the case becomes final and executory before or after the elections, is material
and relevant.

On the contrary, Section 11 (K) (b) of COMELEC Resolution No. 10083, which specifically refers to nuisance
petitions under Section 69 of the Omnibus Election Code, states that the votes cast for the nuisance candidate
shall be added to the candidate that shares the same surname with the former. It does not distinguish whether
the decision in the nuisance case became final and executory before or after the elections. Notably, Dela
Cruz emphasized that Section 72 applies to disqualification cases but not to petitions to cancel or deny due course
a certificate of candidacy under Sections 69 for nuisance candidates.47

To reiterate, in a nuisance petition, the votes of the nuisance candidate shall be credited to the legitimate
candidate once the decision becomes final and executory, whether before or after the elections. Martinez
III provides the basis for this rule: "final judgments declaring a nuisance candidate should effectively cancel the
certificate of candidacy filed by such candidate as of election day."48

Accordingly, when there is a final and executory judgment in a nuisance case, it shall be effective and operative as
of election day. It is as if the nuisance candidate was never a candidate to be voted for because his candidacy
caused confusion to the electorate and it showed his lack of bona fide intention to run for office. Thus, the votes
for the said nuisance candidate shall be transferred to the legitimate candidate, with the similar name, as of
election day also.

Similarly, in Bautista, even though the decision in the nuisance case only became final and executory after the
elections, the Court still credited the votes of the nuisance candidate in favor of the legitimate candidate. It was
highlighted therein that technicalities should not be permitted to defeat the intention of the voter, especially so if
that intention is discoverable from the ballot itself.

Further, the position of petitioners is unjust and oppressive. A declaration – that only decisions or resolutions in
nuisance cases that became final and executory before the election shall result in the crediting of votes in favor of
the legitimate candidate – would lead to harsh practices of rival political opponents and exploitations in the delays
in COMELEC. As discussed in Martinez III:

Given the realities of elections in our country and particularly contests involving local positions, what emerges as
the paramount concern in barring nuisance candidates from participating in the electoral exercise is the avoidance
of confusion and frustration of the democratic process by preventing a faithful determination of the true will of the
electorate, more than the practical considerations mentioned in Pamatong. A report published by the Philippine
Center for Investigative Journalism in connection with the May 11, 1998 elections indicated that the tactic of
fielding nuisance candidates with the same surnames as leading contenders had become one (1) "dirty trick"
practiced in at least parts of the country. The success of this clever scheme by political rivals or operators has
been attributed to the last-minute disqualification of nuisance candidates by the Commission, notably its "slow-
moving" decision-making.

xxxx

xxx The inclusion of nuisance candidates turns the electoral exercise into an uneven playing field where the bona
fide candidate is faced with the prospect of having a significant number of votes cast for him invalidated as stray
votes by the mere presence of another candidate with a similar surname. Any delay on the part of the COMELEC
increases the probability of votes lost in this manner. While political campaigners try to minimize stray votes by
advising the electorate to write the full name of their candidate on the ballot, still, election woes brought by
nuisance candidates persist.49
To sanction the argument of petitioners would promote the practice of fielding nuisance candidates and delaying
the resolution of nuisance cases after the election in order to prevent the proclamation of legitimate candidates.
While the delays in the resolution of the nuisance cases in the COMELEC exist, it should not be a valid reason to
deprive a legitimate candidate of the votes of the electorate.

The better approach would be to allow the crediting of the votes of the nuisance candidate to the legitimate
candidate, who have similar names, regardless whether the decision or resolution of the COMELEC became final
and executory before or after the elections. In that way, the will of the electorate shall be respected as observed
in Bautista and Martinez III.

In this case, respondent, a re-electionist candidate, was an apparent prey to the unscrupulous practice of fielding
nuisance candidates and to the delays of the resolution of cases before the COMELEC. As early as October 21,
2015, she filed a petition to declare Rosalie a nuisance candidate because the latter chose the name "Roxas Jenn-
Rose" to appear in the official ballot even though respondent already had a preferred name of "Roxas Jenny,"
which are confusingly similar. Further, the name "Jenn-Rose" was far from Rosalie's actual name and her real
nickname was "Saleng." It was also discovered that Rosalie was not financially capable to campaign for the
elections.

However, it was only on March 30, 2016, that the COMELEC declared Rosalie a nuisance candidate. Then, on April
18, 2016, Rosalie filed a motion for reconsideration consisting merely of three (3) pages. COMELEC still had twenty
(20) days before the May 9, 2016 elections, to resolve such motion for reconsideration but it failed to do so.
Instead, it was only on July 22, 2016, or more than two (2) months after the elections, that COMELEC issued a
resolution denying the motion for reconsideration. When COMELEC attempted to serve the said resolution to
Rosalie's counsel, the latter could not be located. Thus, it was only on February 15, 2017 that the COMELEC
declared its resolutions final and executory.

These manifest delays in the resolution of the nuisance case negatively affected respondent and the will of the
electorate. Nevertheless, as declared in Martinez III the legitimate candidate should not be prejudiced by the
COMELEC's inefficiency and lethargy.50 The technicalities employed by petitioners should not frustrate the voter's
will to elect respondent as a member of the Sangguniang Panlungsod of Pasay. Thus, the votes for the nuisance
candidate must be credited in her favor.

Correspondingly, the votes for Rosalie, a nuisance candidate, should be credited in favor of respondent, the
legitimate candidate, under the second writ of execution. Thus, the TRO imposed by the Court's resolution dated
November 28, 2017, must be lifted.

In a multi-slot office, the votes

of the nuisance candidate are
not automatically added to the
legitimate candidate

Nonetheless, while the OSG argues that the votes of Rosalie should be credited in favor of respondent pursuant
to Dela Cruz, the said votes should not be automatically added. It explained that in a multi-slot office, it is possible
that the legitimate candidate and nuisance candidate may both receive votes in one ballot. In that case, the vote
cast for the nuisance candidate may not automatically be credited to the legitimate candidate, otherwise, it shall
result to a situation where the latter shall receive two votes from one voter. 51

The OSG's argument is meritorious.

Section 11 (K) (b) of COMELEC Resolution No. 10083 states that method of canvassing of votes when there is a
nuisance candidate, viz:
b. In case a candidate has been declared a nuisance candidate by final and executory Decision or Resolution, the
votes cast for the nuisance candidate shall be added to the candidate who share the same surname as the
nuisance candidate and thereafter, the candidate who garnered the highest number of votes shall be
proclaimed;

In case of two or more candidate having the same surnames as the nuisance candidate shall be considered as
stray votes and shall not be credited to any candidate;

In case the nuisance candidate does not have the same surname as any candidate for the same position, the
votes cast for the nuisance candidate shall be considered as stray votes;

xxxx

Evidently, the rules provided by the COMELEC regarding the canvassing of votes for nuisance candidates are still
insufficient because these do not consider a multi-slot office with a nuisance candidate.

In a multi-slot office, such as membership of the Sangguniang Panlungsod, a registered voter may vote for more
than one candidate. Hence, it is possible that the legitimate candidate and nuisance candidate, having similar
names, may both receive votes in one ballot. The Court agrees with the OSG that in that scenario, the vote cast for
the nuisance candidate should no longer be credited to the legitimate candidate; otherwise, the latter shall receive
two votes from one voter.

Therefore, in a multi-slot office, the COMELEC must not merely apply a simple mathematical formula of adding the
votes of the nuisance candidate to the legitimate candidate with the similar name. To apply such simple arithmetic
might lead to the double counting of votes because there may be ballots containing votes for both nuisance and
legitimate candidates.

As properly discussed by the OSG, a legitimate candidate may seek another person with the same surname to file a
candidacy for the same position and the latter will opt to be declared a nuisance candidate. In that scenario, the
legitimate candidate shall receive all the votes of the nuisance candidate and may even receive double votes,
thereby, drastically increasing his odds.52

At the same time, it is also possible that a voter may be confused when he reads the ballot containing the similar
names of the nuisance candidate and the legitimate candidate. In his eagerness to vote, he may shade both ovals
for the two candidates to ensure that the legitimate candidate is voted for. Similarly, in that case, the legitimate
candidate may receive two (2) votes from one voter by applying the simple arithmetic formula adopted by the
COMELEC when the nuisance candidate's COC is cancelled.

Thus, to ascertain that the votes for the nuisance candidate is accurately credited in favor of the legitimate
candidate with the similar name, the COMELEC must also inspect the ballots. In those ballots that contain both
votes for nuisance and legitimate candidate, only one count of vote must be credited to the legitimate candidate.

While the perils of a fielding nuisance candidates against legitimate candidates cannot be overemphasized, it must
also be guaranteed that the votes of the nuisance candidate are properly and fairly counted in favor of the said
legitimate candidate. In that manner, the will of the electorate is upheld.

In this case, the certificate of canvass stated that Rosalie received 13,328 votes; while respondent received 33,738
votes. In the first writ of execution, the COMELEC applied the simple arithmetic formula of counting the 13,328
votes cast for Rosalie in favor of respondent, thus, the total number of votes garnered by respondent was 47,066.
Similarly, in the second writ of execution, the COMELEC applied the same simple arithmetic formula and stated
that respondent had 47,066 votes.

As discussed-above, the simple arithmetic formula of the COMELEC in a multi-slot office, where there is a nuisance
candidate, is inaccurate. Thus, the ballots containing the votes for nuisance candidate Rosalie must be credited in
favor of respondent. However, if there are ballots which contain both votes in favor of Rosalie and respondent,
only one vote shall be credited in favor of respondent.

Final Note

The present petition arose from the delay in the disposition of nuisance cases by the COMELEC. In Martinez III, the
Court emphasized that the law mandates the COMELEC and the courts to give priority to cases of disqualification
to the end that a final decision shall be rendered not later than seven daysbefore the election in which the
disqualification is sought.53

As discussed earlier, the COMELEC still had twenty (20) days before the May 9, 2016 elections to resolve such
motion for reconsideration of Rosalie but it failed to do so. Instead, it was only on July 22, 2016, or more than two
(2) months after the elections, that the COMELEC denied the motion for reconsideration.

Had the COMELEC promptly resolved the simple motion for reconsideration of Rosalie before the elections, then
her name could have been removed from the ballots and prevented confusion among the voters with the similar
names. That delay created the unwarranted present scenario. The upcoming election is not a valid excuse for the
sluggish disposition of crucial cases for disqualification of nuisance candidates. Any delay on the part of the
COMELEC increases the probability of votes lost due to the confusion brought about by nuisance candidates.

Nevertheless, the COMELEC can still rectify itself. The declaration of Rosalie as a nuisance candidate changed the
result of the elections for the position of Members of the Sangguniang Panlungsod of the First District of Pasay
City. Thus, the COMELEC must execute the second writ of execution immediately and without any further delay
subject to the modification of the counting of votes in a multi-slot office.

Further, the COMELEC must amend its Resolution No. 10083 to reflect the proper counting of votes in a multi-slot
office when there is a nuisance candidate.

WHEREFORE, the November 8, 2017 Writ of Execution of the Commission on Elections-En Banc in SPA Case No. 15-
029 (DC) is AFFIRMED with MODIFICATION as follows:

1. RE-CONVENE the Special Board of Canvassers of Pasay City for the purpose of re-canvassing the votes for
the position of Members of the Sangguniang Panlungsod of the First District of Pasay City;

2. COUNT the votes for nuisance candidate Rosalie Isles Roxas in favor of respondent Jennifer Antiquera
Roxas. However, if there is a ballot that contains votes in favor of both Rosalie Isles Roxas and respondent
Jennifer Antiquera Roxas, only one vote shall be counted in favor of the latter; and

3. PROCLAIM the duly elected Members of the Sangguniang Panlungsod for the First District of Pasay City in
accordance with the result of the proper counting of votes.

The Temporary Restraining Order imposed by the Court in its Resolution dated November 28, 2017, is LIFTED.

This Decision is immediately executory. The Commission on Elections is ORDERED to complete the implementation
of the November 8, 2017 Writ of Execution, as modified, within thirty (30) days from receipt of this Decision.

SO ORDERED.

G.R. No. 195229 October 9, 2012

EFREN RACEL ARA TEA, Petitioner,

vs.
COMMISSiON ON ELECTIONS and ESTELA D. ANTlPOLO, Respondents.

DECISION

CARPIO, J.:

The Case

This is a special civil action for certiorari1 seeking to review and nullify the Resolution2 dated 2 February 2011 and
the Order3 dated 12 January 2011 of the Commission on Elections (COMELEC) En Banc in Dra. Sigrid S. Rodolfo v.
Romeo D. Lonzanida, docketed as SPA No. 09-158 (DC). The petition asserts that the COMELEC issued the
Resolution and Order with grave abuse of discretion amounting to lack or excess of jurisdiction.

The Facts

Romeo D. Lonzanida (Lonzanida) and Estela D. Antipolo (Antipolo) were candidates for Mayor of San Antonio,
Zambales in the May 2010 National and Local Elections. Lonzanida filed his certificate of candidacy on 1 December
2009.4 On 8 December 2009, Dra. Sigrid S. Rodolfo (Rodolfo) filed a petition under Section 78 of the Omnibus
Election Code to disqualify Lonzanida and to deny due course or to cancel Lonzanida’s certificate of candidacy on
the ground that Lonzanida was elected, and had served, as mayor of San Antonio, Zambales for four (4)
consecutive terms immediately prior to the term for the May 2010 elections. Rodolfo asserted that Lonzanida
made a false material representation in his certificate of candidacy when Lonzanida certified under oath that he
was eligible for the office he sought election. Section 8, Article X of the 1987 Constitution 5 and Section 43(b) of the
Local Government Code6 both prohibit a local elective official from being elected and serving for more than three
consecutive terms for the same position.

The COMELEC Second Division rendered a Resolution 7 on 18 February 2010 cancelling Lonzanida’s certificate of
candidacy. Pertinent portions of the 18 February 2010 Resolution read:

Respondent Lonzanida never denied having held the office of mayor of San Antonio, Zambales for more than nine
consecutive years. Instead he raised arguments to forestall or dismiss the petition on the grounds other than the
main issue itself. We find such arguments as wanting. Respondent Lonzanida, for holding the office of mayor for
more than three consecutive terms, went against the three-term limit rule; therefore, he could not be allowed to
run anew in the 2010 elections. It is time to infuse new blood in the political arena of San Antonio.
WHEREFORE, premises considered, the instant petition is hereby GRANTED. The Certificate of Candidacy of
Respondent Romeo D. Lonzanida for the position of mayor in the municipality of San Antonio, Zambales is hereby
CANCELLED. His name is hereby ordered STRICKEN OFF the list of Official Candidates for the position of Mayor of
San Antonio, Zambales in May 10, 2010 elections.

SO ORDERED.8

Lonzanida’s motion for reconsideration before the COMELEC En Banc remained pending during the May 2010
elections. Lonzanida and Efren Racel Aratea (Aratea) garnered the highest number of votes and were respectively
proclaimed Mayor and Vice-Mayor.

Aratea took his oath of office as Acting Mayor before Regional Trial Court (RTC) Judge Raymond C. Viray of Branch
75, Olongapo City on 5 July 2010.9 On the same date, Aratea wrote the Department of Interior and Local
Government (DILG) and requested for an opinion on whether, as Vice-Mayor, he was legally required to assume
the Office of the Mayor in view of Lonzanida’s disqualification. DILG Legal Opinion No. 117, S. 201010 stated that
Lonzanida was disqualified to hold office by reason of his criminal conviction. As a consequence of Lonzanida’s
disqualification, the Office of the Mayor was deemed permanently vacant. Thus, Aratea should assume the Office
of the Mayor in an acting capacity without prejudice to the COMELEC’s resolution of Lonzanida’s motion for
reconsideration. In another letter dated 6 August 2010, Aratea requested the DILG to allow him to take the oath of
office as Mayor of San Antonio, Zambales. In his response dated 24 August 2010, then Secretary Jesse M. Robredo
allowed Aratea to take an oath of office as "the permanent Municipal Mayor of San Antonio, Zambales without
prejudice however to the outcome of the cases pending before the [COMELEC]." 11

On 11 August 2010, the COMELEC En Banc issued a Resolution12 disqualifying Lonzanida from running for Mayor in
the May 2010 elections. The COMELEC En Banc’s resolution was based on two grounds: first, Lonzanida had been
elected and had served as Mayor for more than three consecutive terms without interruption; and second,
Lonzanida had been convicted by final judgment of ten (10) counts of falsification under the Revised Penal Code.
Lonzanida was sentenced for each count of falsification to imprisonment of four (4) years and one (1) day of prisión
correccional as minimum, to eight (8) years and one (1) day of prisión mayor as maximum. The judgment of
conviction became final on 23 October 2009 in the Decision of this Court in Lonzanida v. People,13 before Lonzanida
filed his certificate of candidacy on 1 December 2009. Pertinent portions of the 11 August 2010 Resolution read:

Prescinding from the foregoing premises, Lonzanida, for having served as Mayor of San Antonio, Zambales for
more than three (3) consecutive terms and for having been convicted by a final judgment of a crime punishable by
more than one (1) year of imprisonment, is clearly disqualified to run for the same position in the May 2010
Elections.

WHEREFORE, in view of the foregoing, the Motion for Reconsideration is hereby DENIED.

SO ORDERED.14

On 25 August 2010, Antipolo filed a Motion for Leave to Intervene and to Admit Attached Petition-in-
Intervention.15She claimed her right to be proclaimed as Mayor of San Antonio, Zambales because Lonzanida
ceased to be a candidate when the COMELEC Second Division, through its 18 February 2010 Resolution, ordered
the cancellation of his certificate of candidacy and the striking out of his name from the list of official candidates
for the position of Mayor of San Antonio, Zambales in the May 2010 elections.

In his Comment filed on 26 January 2011, Aratea asserted that Antipolo, as the candidate who received the second
highest number of votes, could not be proclaimed as the winning candidate. Since Lonzanida’s disqualification was
not yet final during election day, the votes cast in his favor could not be declared stray. Lonzanida’s subsequent
disqualification resulted in a permanent vacancy in the Office of Mayor, and Aratea, as the duly-elected Vice-
Mayor, was mandated by Section 4416 of the Local Government Code to succeed as Mayor.

The COMELEC’s Rulings

The COMELEC En Banc issued an Order dated 12 January 2011, stating:

Acting on the "Motion for Leave to Intervene and to Admit Attached Petition-in-Intervention" filed by Estela D.
Antipolo (Antipolo) and pursuant to the power of this Commission to suspend its Rules or any portion thereof in
the interest of justice, this Commission hereby RESOLVES to:

1. GRANT the aforesaid Motion;

2. ADMIT the Petition-in-Intervention filed by Antipolo;

3. REQUIRE the Respondent, ROMEO DUMLAO LONZANIDA, as well as EFREN RACEL ARATEA, proclaimed Vice-
Mayor of San Antonio, Zambales, to file their respective Comments on the Petition-in- Intervention within a non-
extendible period of five (5) days from receipt thereof;

4. SET the above-mentioned Petition-in-Intervention for hearing on January 26, 2011 at 10:00 a.m. COMELEC
Session Hall, 8th Floor, Palacio del Gobernador, Intramuros, Manila.

WHEREFORE, furnish copies hereof the parties for their information and compliance.

SO ORDERED.17

In its Resolution dated 2 February 2011, the COMELEC En Banc no longer considered Lonzanida’s qualification as
an issue: "It is beyond cavil that Lonzanida is not eligible to hold and discharge the functions of the Office of the
Mayor of San Antonio, Zambales. The sole issue to be resolved at this juncture is how to fill the vacancy resulting
from Lonzanida’s disqualification."18 The Resolution further stated:

We cannot sustain the submission of Oppositor Aratea that Intervenor Antipolo could never be proclaimed as the
duly elected Mayor of Antipolo [sic] for being a second placer in the elections. The teachings in the cases of Codilla
vs. De Venecia and Nazareno and Domino vs. COMELEC, et al., while they remain sound jurisprudence find no
application in the case at bar. What sets this case apart from the cited jurisprudence is that the notoriety of
Lonzanida’s disqualification and ineligibility to hold public office is established both in fact and in law on election
day itself. Hence, Lonzanida’s name, as already ordered by the Commission on February 18, 2010 should have been
stricken off from the list of official candidates for Mayor of San Antonio, Zambales.

WHEREFORE, in view of the foregoing, the Commission hereby:

1. Declares NULL and VOID the proclamation of respondent ROMEO D. LONZANIDA;

2. GRANTS the Petition for Intervention of Estela D. Antipolo;

3. Orders the immediate CONSTITUTION of a Special Municipal Board of Canvassers to PROCLAIM Intervenor Estela
D. Antipolo as the duly elected Mayor of San Antonio, Zambales;

4. Orders Vice-Mayor Efren Racel Aratea to cease and desist from discharging the functions of the Office of the
Mayor, and to cause a peaceful turn-over of the said office to Antipolo upon her proclamation; and
5. Orders the Office of the Executive Director as well as the Regional Election Director of Region III to cause the
implementation of this Resolution and disseminate it to the Department of Interior and Local Government.

SO ORDERED.19

Aratea filed the present petition on 9 February 2011.

The Issues

The manner of filling up the permanent vacancy in the Office of the Mayor of San Antonio, Zambales is dependent
upon the determination of Lonzanida’s removal. Whether Lonzanida was disqualified under Section 68 of the
Omnibus Election Code, or made a false material representation under Section 78 of the same Code that resulted
in his certificate of candidacy being void ab initio, is determinative of whether Aratea or Antipolo is the rightful
occupant to the Office of the Mayor of San Antonio, Zambales.

The dissenting opinions reverse the COMELEC’s 2 February 2011 Resolution and 12 January 2011 Order. They hold
that Aratea, the duly elected Vice-Mayor of San Antonio, Zambales, should be declared Mayor pursuant to the
Local Government Code’s rule on succession.

The dissenting opinions make three grave errors: first, they ignore prevailing jurisprudence that a false
representation in the certificate of candidacy as to eligibility in the number of terms elected and served is a
material fact that is a ground for a petition to cancel a certificate of candidacy under Section 78; second, they
ignore that a false representation as to eligibility to run for public office due to the fact that the candidate suffers
from perpetual special disqualification is a material fact that is a ground for a petition to cancel a certificate of
candidacy under Section 78; and third, they resort to a strained statutory construction to conclude that the
violation of the three-term limit rule cannot be a ground for cancellation of a certificate of candidacy under Section
78, even when it is clear and plain that violation of the three-term limit rule is an ineligibility affecting the
qualification of a candidate to elective office.

The dissenting opinions tread on dangerous ground when they assert that a candidate’s eligibility to the office he
seeks election must be strictly construed to refer only to the details, i.e., age, citizenship, or residency, among
others, which the law requires him to state in his COC, and which he must swear under oath to possess. The
dissenting opinions choose to view a false certification of a candidate’s eligibility on the three-term limit rule not as
a ground for false material representation under Section 78 but as a ground for disqualification under Section 68 of
the same Code. This is clearly contrary to well-established jurisprudence.

The Court’s Ruling

We hold that Antipolo, the alleged "second placer," should be proclaimed Mayor because Lonzanida’s certificate of
candidacy was void ab initio. In short, Lonzanida was never a candidate at all. All votes for Lonzanida were stray
votes. Thus, Antipolo, the only qualified candidate, actually garnered the highest number of votes for the position
of Mayor.

Qualifications and Disqualifications

Section 65 of the Omnibus Election Code points to the Local Government Code for the qualifications of elective
local officials. Paragraphs (a) and (c) of Section 39 and Section 40 of the Local Government Code provide in
pertinent part:
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 x x x; 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.

xxxx

(c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or
municipalities must be at least twenty-one (21) years of age on election day.

xxxx

Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to
avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded. (Emphasis supplied)

Section 12 of the Omnibus Election Code provides:

Sec. 12. Disqualification. — Any person who has been declared by competent authority insane or incompetent, or
has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he was
sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by
competent authority that said insanity or incompetence had been removed or after the expiration of a period of
five years from his service of sentence, unless within the same period he again becomes disqualified. (Emphasis
supplied)

The grounds for disqualification for a petition under Section 68 of the Omnibus Election Code are specifically
enumerated:

Sec. 68. Disqualifications. ‒ Any candidate who, in an action or protest in which he is a party is declared by final
decision by a competent court guilty of, or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of
that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96,
97 and 104; (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall
be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who
is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country
in accordance with the residence requirement provided for in the election laws. (Emphasis supplied)

A petition for disqualification under Section 68 clearly refers to "the commission of prohibited acts and possession
of a permanent resident status in a foreign country."20 All the offenses mentioned in Section 68 refer to election
offenses under the Omnibus Election Code, not to violations of other penal laws. There is absolutely nothing in
the language of Section 68 that would justify including violation of the three-term limit rule, or conviction by final
judgment of the crime of falsification under the Revised Penal Code, as one of the grounds or offenses covered
under Section 68. In Codilla, Sr. v. de Venecia,21 this Court ruled:

[T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the
Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction. They are
criminal and not administrative in nature. x x x

Clearly, the violation by Lonzanida of the three-term limit rule, or his conviction by final judgment of the crime of
falsification under the Revised Penal Code, does not constitute a ground for a petition under Section 68.

False Material Representation

Section 78 of the Omnibus Election Code states that a certificate of candidacy may be denied or cancelled when
there is false material representation of the contents of the certificate of candidacy:

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 the 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. (Emphasis supplied)

Section 74 of the Omnibus Election Code details the contents of the certificate of candidacy:

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.

x x x x (Emphasis supplied)

A candidate for mayor in the 2010 local elections was thus required to provide 12 items of information in the
certificate of candidacy:22 name; nickname or stage name; gender; age; place of birth; political party that
nominated the candidate; civil status; residence/address; profession or occupation; post office address for election
purposes; locality of which the candidate is a registered voter; and period of residence in the Philippines before 10
May 2010. The candidate also certifies four statements: a statement that the candidate is a natural born or
naturalized Filipino citizen; a statement that the candidate is not a permanent resident of, or immigrant to, a
foreign country; a statement that the candidate is eligible for the office he seeks election; and a statement of the
candidate’s allegiance to the Constitution of the Republic of the Philippines. 23 The certificate of candidacy should
also be under oath, and filed within the period prescribed by law.

The conviction of Lonzanida by final judgment, with the penalty of prisión mayor, disqualifies him perpetually
from holding any public office, or from being elected to any public office. This perpetual disqualification took
effect upon the finality of the judgment of conviction, before Lonzanida filed his certificate of candidacy. The
pertinent provisions of the Revised Penal Code are as follows:

Art. 27. Reclusion perpetua. — x x x

Prisión mayor and temporary disqualification. — The duration of the penalties of prisión mayor and temporary
disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification
is imposed as an accessory penalty, in which case, it shall be that of the principal penalty.

xxxx

Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties of perpetual
or temporary absolute disqualification for public office shall produce the following effects:

1. The deprivation of the public offices and employments which the offender may have held, even if conferred
by popular election.

2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such
office.

3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall
last during the term of the sentence.

4. The loss of all rights to retirement pay or other pension for any office formerly held.

Art. 31. Effects of the penalties of perpetual or temporary special disqualification. — The penalties of perpetual or
temporary special disqualification for public office, profession or calling shall produce the following effects:

1. The deprivation of the office, employment, profession or calling affected.

2. The disqualification for holding similar offices or employments either perpetually or during the term of the
sentence, according to the extent of such disqualification.

Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of
suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of
the right to vote in any popular election for any public office or to be elected to such office. Moreover, the
offender shall not be permitted to hold any public office during the period of his disqualification.

Art. 42. Prisión mayor — Its accessory penalties. — The penalty of prision mayor shall carry with it that
of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage
which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphasis supplied)

The penalty of prisión mayor automatically carries with it, by operation of law,24 the accessory penalties of
temporary absolute disqualification and perpetual special disqualification. Under Article 30 of the Revised Penal
Code, temporary absolute disqualification produces the effect of "deprivation of the right to vote in any election
for any popular elective office or to be elected to such office.” The duration of temporary absolute disqualification
is the same as that of the principal penalty of prisión mayor. On the other hand, under Article 32 of the Revised
Penal Code, perpetual special disqualification means that "the offender shall not be permitted to hold any public
office during the period of his disqualification,” which is perpetually. Both temporary absolute disqualification
and perpetual special disqualification constitute ineligibilities to hold elective public office. A person suffering
from these ineligibilities is ineligible to run for elective public office, and commits a false material representation
if he states in his certificate of candidacy that he is eligible to so run.

In Lacuna v. Abes (Lacuna),25 the Court, speaking through Justice J.B.L. Reyes, explained the import of the accessory
penalty of perpetual special disqualification:

On the first defense of respondent-appellee Abes, it must be remembered that appellee’s conviction of a crime
penalized with prision mayor which carried the accessory penalties of temporary absolute disqualification and
perpetual special disqualification from the right of suffrage (Article 42, Revised Penal Code); and Section 99 of the
Revised Election Code disqualifies a person from voting if he had been sentenced by final judgment to suffer one
year or more of imprisonment.

The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the
right to vote, such disqualification to last only during the term of the sentence (Article 27, paragraph 3, & Article
30, Revised Penal Code) that, in the case of Abes, would have expired on 13 October 1961.

But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for the
exercise of the right of suffrage. This accessory penalty deprives the convict of the right to vote or to be elected to
or hold public office perpetually, as distinguished from temporary special disqualification, which lasts during the
term of the sentence. Article 32, Revised Penal Code, provides:

Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of
suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the
right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender
shall not be permitted to hold any public office during the period of disqualification.

The word "perpetually" and the phrase "during the term of the sentence" should be applied distributively to their
respective antecedents; thus, the word "perpetually" refers to the perpetual kind of special disqualification, while
the phrase "during the term of the sentence" refers to the temporary special disqualification. The duration
between the perpetual and the temporary (both special) are necessarily different because the provision, instead of
merging their durations into one period, states that such duration is "according to the nature of said penalty" —
which means according to whether the penalty is the perpetual or the temporary special disqualification.
(Emphasis supplied)

Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of
the right to vote or to be elected to or hold public office perpetually.”

The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of
conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of the
principal penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32 states
that "the offender shall not be permitted to hold any public office during the period of his [perpetual special]
disqualification." Once the judgment of conviction becomes final, it is immediately executory. Any public office
that the convict may be holding at the time of his conviction becomes vacant upon finality of the judgment,
and the convict becomes ineligible to run for any elective public office perpetually. In the case of Lonzanida, he
became ineligible perpetually to hold, or to run for, any elective public office from the time the judgment of
conviction against him became final. The judgment of conviction was promulgated on 20 July 2009 and became
final on 23 October 2009, before Lonzanida filed his certificate of candidacy on 1 December 2009 . 26

Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election Code
because this accessory penalty is an ineligibility, which means that the convict is not eligible to run for public
office, contrary to the statement that Section 74 requires him to state under oath in his certificate of candidacy. As
this Court held in Fermin v. Commission on Elections,27 the false material representation may refer to
"qualifications or eligibility.” One who suffers from perpetual special disqualification is ineligible to run for public
office. If a person suffering from perpetual special disqualification files a certificate of candidacy stating under oath
that "he is eligible to run for (public) office," as expressly required under Section 74, then he clearly makes a false
material representation that is a ground for a petition under Section 78. As this Court explained in Fermin:

Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a material representation that is false, which may relate to
the qualifications required of the public office he/she is running for. It is noted that the candidate states in
his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in
relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the
candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the
law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a
proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with
the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is
filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning
candidate.28(Emphasis supplied)

Latasa, Rivera and Ong:

The Three-Term Limit Rule as a Ground for Ineligibility

Section 74 requires the candidate to certify that he is eligible for the public office he seeks election. Thus, Section
74 states that "the certificate of candidacy shall state that the person filing x x x is eligible for said office.” The
three-term limit rule, enacted to prevent the establishment of political dynasties and to enhance the electorate’s
freedom of choice,29 is found both in the Constitution30 and the law.31 After being elected and serving for three
consecutive terms, an elective local official cannot seek immediate reelection for the same office in the next
regular election32 because he is ineligible. One who has an ineligibility to run for elective public office is not
"eligible for [the] office." As used in Section 74, the word "eligible" 33 means having the right to run for elective
public office, that is, having all the qualifications and none of the ineligibilities to run for the public office.

In Latasa v. Commission on Elections,34 petitioner Arsenio Latasa was elected mayor of the Municipality of Digos,
Davao del Sur in 1992, 1995, and 1998. The Municipality of Digos was converted into the City of Digos during
Latasa’s third term. Latasa filed his certificate of candidacy for city mayor for the 2001 elections. Romeo Sunga,
Latasa’s opponent, filed before the COMELEC a "petition to deny due course, cancel certificate of candidacy and/or
disqualification" under Section 78 on the ground that Latasa falsely represented in his certificate of candidacy that
he is eligible to run as mayor of Digos City. Latasa argued that he did not make any false representation. In his
certificate of candidacy, Latasa inserted a footnote after the phrase "I am eligible" and indicated "*Having served
three (3) term[s] as municipal mayor and now running for the first time as city mayor." The COMELEC First Division
cancelled Latasa’s certificate of candidacy for violation of the three-term limit rule but not for false material
representation. This Court affirmed the COMELEC En Banc’s denial of Latasa’s motion for reconsideration.

We cancelled Marino Morales’ certificate of candidacy in Rivera III v. Commission on Elections (Rivera).35 We held
that Morales exceeded the maximum three-term limit, having been elected and served as Mayor of Mabalacat for
four consecutive terms (1995 to 1998, 1998 to 2001, 2001 to 2004, and 2004 to 2007). We declared him ineligible
as a candidate for the same position for the 2007 to 2010 term. Although we did not explicitly rule that Morales’
violation of the three-term limit rule constituted false material representation, we nonetheless granted the
petition to cancel Morales’ certificate of candidacy under Section 78. We also affirmed the cancellation of Francis
Ong’s certificate of candidacy in Ong v. Alegre,36 where the "petition to disqualify, deny due course and cancel"
Ong’s certificate of candidacy under Section 78 was predicated on the violation of the three-term limit rule.

Loong, Fermin and Munder:

When Possession of a Disqualifying Condition

is Not a Ground for a Petition for Disqualification

It is obvious from a reading of the laws and jurisprudence that there is an overlap in the grounds for eligibility and
ineligibility vis-à-vis qualifications and disqualifications. For example, a candidate may represent that he is a
resident of a particular Philippine locality37 when he is actually a permanent resident of another country. 38 In cases
of such overlap, the petitioner should not be constrained in his choice of remedy when the Omnibus Election Code
explicitly makes available multiple remedies.39 Section 78 allows the filing of a petition to deny due course or to
cancel a certificate of candidacy before the election, while Section 253 allows the filing of a petition for quo
warranto after the election. Despite the overlap of the grounds, one should not confuse a petition for
disqualification using grounds enumerated in Section 68 with a petition to deny due course or to cancel a
certificate of candidacy under Section 78.

The distinction between a petition under Section 68 and a petition under Section 78 was discussed in Loong v.
Commission on Elections40 with respect to the applicable prescriptive period. Respondent Nur Hussein Ututalum
filed a petition under Section 78 to disqualify petitioner Benjamin Loong for the office of Regional Vice-Governor of
the Autonomous Government of Muslim Mindanao for false representation as to his age. The petition was filed 16
days after the election, and clearly beyond the prescribed 25 day period from the last day of filing certificates of
candidacy. This Court ruled that Ututalum’s petition was one based on false representation under Section 78, and
not for disqualification under Section 68. Hence, the 25-day prescriptive period provided in Section 78 should be
strictly applied. We recognized the possible gap in the law:

It is true that the discovery of false representation as to material facts required to be stated in a certificate of
candidacy, under Section 74 of the Code, may be made only after the lapse of the 25-day period prescribed by
Section 78 of the Code, through no fault of the person who discovers such misrepresentations and who would
want the disqualification of the candidate committing the misrepresentations. It would seem, therefore, that there
could indeed be a gap between the time of the discovery of the misrepresentation, (when the discovery is made
after the 25-day period under Sec. 78 of the Code has lapsed) and the time when the proclamation of the results of
the election is made. During this so-called "gap" the would-be petitioner (who would seek the disqualification of
the candidate) is left with nothing to do except to wait for the proclamation of the results, so that he could avail of
a remedy against the misrepresenting candidate, that is, by filing a petition for quo warranto against him.
Respondent Commission sees this "gap" in what it calls a procedural gap which, according to it, is unnecessary and
should be remedied.

At the same time, it can not be denied that it is the purpose and intent of the legislative branch of the government
to fix a definite time within which petitions of protests related to eligibility of candidates for elective offices must
be filed, as seen in Sections 78 and 253 of the Code. Respondent Commission may have seen the need to remedy
this so-called “procedural gap", but it is not for it to prescribe what the law does not provide, its function not being
legislative. The question of whether the time to file these petitions or protests is too short or ineffective is one for
the Legislature to decide and remedy.41

In Fermin v. Commission on Elections,42 the issue of a candidate’s possession of the required one-year residency
requirement was raised in a petition for disqualification under Section 68 instead of a petition to deny due course
or to cancel a certificate of candidacy under Section 78. Despite the question of the one-year residency being a
proper ground under Section 78, Dilangalen, the petitioner before the COMELEC in Fermin, relied on Section
5(C)(1) and 5(C)(3)(a)(4) of COMELEC Resolution No. 780043 and filed the petition under Section 68. In Fermin, we
ruled that "a COMELEC rule or resolution cannot supplant or vary legislative enactments that distinguish the
grounds for disqualification from those of ineligibility, and the appropriate proceedings to raise the said
grounds."44 A petition for disqualification can only be premised on a ground specified in Section 12 or 68 of the
Omnibus Election Code or Section 40 of the Local Government Code. Thus, a petition questioning a candidate’s
possession of the required one-year residency requirement, as distinguished from permanent residency or
immigrant status in a foreign country, should be filed under Section 78, and a petition under Section 68 is the
wrong remedy.

In Munder v. Commission on Elections,45 petitioner Alfais Munder filed a certificate of candidacy for Mayor of
Bubong, Lanao del Sur on 26 November 2009. Respondent Atty. Tago Sarip filed a petition for Munder’s
disqualification on 13 April 2010. Sarip claimed that Munder misrepresented that he was a registered voter of
Bubong, Lanao del Sur, and that he was eligible to register as a voter in 2003 even though he was not yet 18 years
of age at the time of the voter’s registration. Moreover, Munder’s certificate of candidacy was not accomplished in
full as he failed to indicate his precinct and did not affix his thumb-mark. The COMELEC Second Division dismissed
Sarip’s petition and declared that his grounds are not grounds for disqualification under Section 68 but for denial
or cancellation of Munder’s certificate of candidacy under Section 78. Sarip’s petition was filed out of time as he
had only 25 days after the filing of Munder’s certificate of candidacy, or until 21 December 2009, within which to
file his petition.

The COMELEC En Banc, however, disqualified Munder. In reversing the COMELEC Second Division, the COMELEC En
Banc did not rule on the propriety of Sarip’s remedy but focused on the question of whether Munder was a
registered voter of Bubong, Lanao del Sur. This Court reinstated the COMELEC Second Division’s resolution. This
Court ruled that the ground raised in the petition, lack of registration as voter in the locality where he was running
as a candidate, is inappropriate for a petition for disqualification. We further declared that with our ruling
in Fermin, we had already rejected the claim that lack of substantive qualifications of a candidate is a ground for a
petition for disqualification under Section 68. The only substantive qualification the absence of which is a ground
for a petition under Section 68 is the candidate’s permanent residency or immigrant status in a foreign country.

The dissenting opinions place the violation of the three-term limit rule as a disqualification under Section 68 as the
violation allegedly is "a status, circumstance or condition which bars him from running for public office despite the
possession of all the qualifications under Section 39 of the [Local Government Code]." In so holding the dissenting
opinions write in the law what is not found in the law. Section 68 is explicit as to the proper grounds for
disqualification under said Section. The grounds for filing a petition for disqualification under Section 68 are
specifically enumerated in said Section. However, contrary to the specific enumeration in Section 68 and contrary
to prevailing jurisprudence, the dissenting opinions add to the enumerated grounds the violation of the three-term
limit rule and falsification under the Revised Penal Code, which are obviously not found in the enumeration in
Section 68.

The dissenting opinions equate Lonzanida’s possession of a disqualifying condition (violation of the three-term
limit rule) with the grounds for disqualification under Section 68. Section 68 is explicit as to the proper grounds for
disqualification: the commission of specific prohibited acts under the Omnibus Election Code and possession of a
permanent residency or immigrant status in a foreign country. Any other false representation regarding a material
fact should be filed under Section 78, specifically under the candidate’s certification of his eligibility. In rejecting a
violation of the three-term limit as a condition for eligibility, the dissenting opinions resort to judicial legislation,
ignoring the verba legis doctrine and well-established jurisprudence on this very issue.

In a certificate of candidacy, the candidate is asked to certify under oath his eligibility, and thus qualification, to the
office he seeks election. Even though the certificate of candidacy does not specifically ask the candidate for the
number of terms elected and served in an elective position, such fact is material in determining a candidate’s
eligibility, and thus qualification for the office. Election to and service of the same local elective position for three
consecutive terms renders a candidate ineligible from running for the same position in the succeeding elections.
Lonzanida misrepresented his eligibility because he knew full well that he had been elected, and had served, as
mayor of San Antonio, Zambales for more than three consecutive terms yet he still certified that he was eligible to
run for mayor for the next succeeding term. Thus, Lonzanida’s representation that he was eligible for the office
that he sought election constitutes false material representation as to his qualification or eligibility for the office.

Legal Duty of COMELEC

to Enforce Perpetual Special Disqualification

Even without a petition under Section 78 of the Omnibus Election Code, the COMELEC is under a legal duty to
cancel the certificate of candidacy of anyone suffering from perpetual special disqualification to run for public
office by virtue of a final judgment of conviction. The final judgment of conviction is judicial notice to the COMELEC
of the disqualification of the convict from running for public office. The law itself bars the convict from running for
public office, and the disqualification is part of the final judgment of conviction. The final judgment of the court is
addressed not only to the Executive branch, but also to other government agencies tasked to implement the final
judgment under the law.

Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it is
assumed that the portion of the final judgment on disqualification to run for elective public office is addressed to
the COMELEC because under the Constitution the COMELEC is duty bound to "enforce and administer all laws and
regulations relative to the conduct of an election."46 The disqualification of a convict to run for elective public
office under the Revised Penal Code, as affirmed by final judgment of a competent court, is part of
the enforcement and administration of "all the laws" relating to the conduct of elections.

Effect of a Void Certificate of Candidacy

A cancelled certificate of candidacy void ab initio cannot give rise to a valid candidacy, and much less to valid
votes.47 We quote from the COMELEC’s 2 February 2011 Resolution with approval:

As early as February 18, 2010, the Commission speaking through the Second Division had already ordered the
cancellation of Lonzanida’s certificate of candidacy, and had stricken off his name in the list of official candidates
for the mayoralty post of San Antonio, Zambales. Thereafter, the Commission En Banc in its resolution dated
August 11, 2010 unanimously affirmed the resolution disqualifying Lonzanida. Our findings were likewise sustained
by the Supreme Court no less. The disqualification of Lonzanida is not simply anchored on one ground. On the
contrary, it was emphasized in our En Banc resolution that Lonzanida’s disqualification is two-pronged: first, he
violated the constitutional fiat on the three-term limit; and second, as early as December 1, 2009, he is known to
have been convicted by final judgment for ten (10) counts of Falsification under Article 171 of the Revised Penal
Code. In other words, on election day, respondent Lonzanida’s disqualification is notoriously known in fact and in
law. Ergo, since respondent Lonzanida was never a candidate for the position of Mayor [of] San Antonio, Zambales,
the votes cast for him should be considered stray votes. Consequently, Intervenor Antipolo, who remains as the
sole qualified candidate for the mayoralty post and obtained the highest number of votes, should now be
proclaimed as the duly elected Mayor of San Antonio, Zambales.48 (Boldfacing and underscoring in the original;
italicization supplied)
Lonzanida's certificate of candidacy was cancelled because he was ineligible or not qualified to run for
Mayor.1âwphi1Whether his certificate of candidacy is cancelled before or after the elections is immaterial because
the cancellation on such ground means he was never a candidate from the very beginning, his certificate of
candidacy being void ab initio. There was only one qualified candidate for Mayor in the May 201 0 elections - Anti
polo, who therefore received the highest number of votes.

WHEREFORE, the petition is DISMISSED. The Resolution dated 2 February 2011 and the Order dated 12 January
2011 of the COMELEC En Bane in SPA No. 09-158 (DC) are AFFIRMED. The COMELEC En Bane is DIRECTED to
constitute a Special Municipal Board of Canvassers to proclaim Estela D. Antipolo as the duly elected Mayor of San
Antonio, Zambales. Petitioner Efren Racel Aratea is ORDERED to cease and desist from discharging the functions of
the Office of the Mayor of San Antonio, Zambales.

SO ORDERED.

G.R. No. 125629 March 25, 1998

MANUEL C. SUNGA, petitioner,

vs.
COMMISSION ON ELECTIONS and FERDINAND B. TRINIDAD, respondents.

BELLOSILLO, J.:

This petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure seeks to annul and set aside, for
having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction, the 17 May 1996
Resolution of the COMELEC 2nd Division in Sunga v. Trinidad, SPA No. 95-2131 dismissing the petition for
disqualification against private respondent Ferdinand B. Trinidad pursuant to COMELEC Resolution No. 2050
promulgated 3 November 1988, as amended by COMELEC Resolution No. 2050-A promulgated 8 August 1990,
and 30 July 1996 Resolution of the COMELEC En Banc affirming the 17 May 1996 Resolution of the COMELEC 2nd
Division.

Petitioner Manuel C. Sunga was one of the candidates for the position of Mayor in the Municipality of Iguig,
Province of Cagayan, in the 8 May 1995 elections. Private respondent Ferdinand B. Trinidad, then incumbent
mayor, was a candidate for re-election in the same municipality.

On 22 April 1995 Sunga filed with the COMELEC a letter-complaint2 for disqualification against Trinidad, accusing
him of using three (3) local government vehicles in his campaign, in violation of Sec. 261, par. (o), Art. XXII, of BP
Blg. 881 (Omnibus Election Code, as amended). On 7 May 1995, Sunga filed another letter-complaint3 with the
COMELEC charging Trinidad this time with violation of Sec. 261, par. (e) (referring to threats, intimidation,
terrorism or other forms of coercion) of the Omnibus Election Code, in addition to the earlier violation imputed
to him in the first letter-complaint. This was followed by an Amended Petition 4 for disqualification consolidating
the charges in the two (2) letters-complaint, including vote buying, and providing more specific details of the
violations committed by Trinidad. The case was docketed as SPA No. 95-213.

In a Minute Resolution dated 25 May 1995,5 the COMELEC 2nd Division referred the complaint to its Law
Department for investigation. Hearings were held wherein Sunga adduced evidence to prove his accusations.
Trinidad, on the other hand, opted not to submit any evidence at all.

Meanwhile, the election results showed that Trinidad garnered the highest number of votes, while Sunga trailed
second.
On 10 May 1995 Sunga moved for the suspension of the proclamation of Trinidad. However, notwithstanding
the motion, Trinidad was proclaimed the elected mayor, prompting Sunga to file another motion to suspend
the effects of the proclamation. Both motions were not acted upon by the COMELEC 2nd Division.

On 28 June 1995 the COMELEC Law Department submitted its Report 6 to the COMELEC En Bancrecommending
that Trinidad be charged in court for violation of the following penal provisions of the Omnibus Election Code:
(a) Sec. 261, par. (a), on vote buying; (b) Sec. 261, par. (e), on threats, intimidation, terrorism or other forms of
coercion; and, (c) Sec. 261, par. (o), on use of any equipment, vehicle owned by the government or any of its
political subdivisions. The Law Department likewise recommended to recall and revoke the proclamation of
Ferdinand B. Trinidad as the duly elected Mayor of Iguig, Cagayan; proclaim Manuel C. Sunga as the duly elected
Mayor; and, direct Sunga to take his oath and assume the duties and functions of the office.

The COMELEC En Banc approved the findings of the Law Department and directed the filing of the corresponding
informations in the Regional Trial Court against Trinidad. Accordingly, four (4) informations7for various elections
offenses were filed in the Regional Trial Court of Tuguegarao, Cagayan. The disqualification case, on the other
hand, was referred to the COMELEC 2nd Division for hearing.

On 2 May 1996 Sunga filed a Second Urgent Motion to Suspend the Effects and Annul the Proclamation with
Urgent Motion for Early Resolution of the Petition. But in its 17 May 1996 Resolution, the COMELEC 2nd Division
dismissed the petition for disqualification, holding in its Resolution No. 2050 that —

1. Any complaint for disqualification of a duly registered candidate based upon any of the grounds
specifically enumerated under Sec. 68 of the Omnibus Election Code, filed directly with the Commission
before an election in which respondent is a candidate, shall be inquired into by the Commission for the
purpose of determining whether the acts complained of have in fact been committed . . . .

In case such complaint was not resolved before the election, the Commission may motu propio, or on
motion of any of the parties, refer the complaint to the Law Department of the Commission as the
instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of
all cases involving criminal infractions of the election
laws . . . .

2. Any complaint for disqualification based on Sec. 68 of the Omnibus Election Code in relation to Sec. 6
of Republic Act No. 6646 filed after the election against a candidate who has already been proclaimed
as a winner shall be dismissed as a disqualification case. However, the complaint shall be referred for
preliminary investigation to the Law Department of this Commission.

Where a similar complaint is filed after election but before proclamation of the respondent candidate,
the complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall
be referred for preliminary investigation to the Law Department. If, before proclamation, the Law
Department makes a prima facie finding of guilt and the corresponding information has been filed with
the appropriate trial court, the complainant may file a petition for suspension of the proclamation of
the respondent with the court before which the criminal case is pending and said court may order the
suspension of the proclamation if the evidence of guilt is strong.

As interpreted in the case of Silvestre v. Duavit, SPA 94-003, Resolution No. 2050 provides for the
outright dismissal of the disqualification case in three cases: (1) The disqualification case was filed
before the election but remains unresolved until after the election; (2) The disqualification case was
filed after the election and before the proclamation of winners; and (3) The disqualification case was
filed after election and after proclamation.
 If the instant case is deemed to have been filed upon receipt by the COMELEC of the letter-complaint on
April 26 1995, it nevertheless remained pending until after the election. If it is deemed to have been
filed upon filing of the amended petition on 11 May 1995, it was clearly filed after the election. In either
case, Resolution No. 2050 mandates the dismissal of the disqualification case.

His motion for reconsideration having been denied by the COMELEC En Banc, Sunga filed the instant petition
contending that the COMELEC committed grave abuse of discretion in dismissing the petition for disqualification
in that: first, Sec. 6 of RA No. 6646 requires the COMELEC to resolve the disqualification case even after the
election and proclamation, and the proclamation and assumption of office by Trinidad did not deprive the
COMELEC of its jurisdiction; second COMELEC Resolution No. 2050 is null and void as it contravenes Sec. 6 of R.A.
No. 6646; third, the fact that COMELEC authorized the filing of four (4) informations against private respondent
for violation of the penal provisions of the Omnibus Election Code shows more than sufficient and substantial
evidence to disqualify Trinidad, and he should have been so disqualified; and fourth, since Trinidad was a
disqualified candidate, it is as if petitioner was the only candidate entitled to be proclaimed as the duly elected
mayor.

In his 17-page Comment and Manifestation dated 3 December 1996, the Solicitor General concurred with
petitioner's arguments.

Private respondent, on the other hand, postulates inter alia that Sunga's letters-complaint of 22 April 1995 and
7 May 1995 were not petitions for disqualification because no filing fee was paid by Sunga; the letters-complaint
were never docketed by the COMELEC; and, no summons was ever issued by the COMELEC and private
respondent was not required to answer the letters-complaint. It was only on 13 May 1995 when petitioner filed
the so-called Amended Petition, docketed for the first time as SPA No. 95-213. Thus, the COMELEC correctly
dismissed the disqualification case for having been filed only after the 8 May 1995 elections and the
proclamation of private respondent on 10 May 1995, pursuant to COMELEC Resolution No. 2050.

COMELEC filed its Comment on 21 April 1997 relying heavily on Resolution No. 2050 and the Silvestre
v.Duavit8 ruling in support of the dismissal of the disqualification case. The COMELEC insisted that the outright
dismissal of a disqualification case was warranted under any of the following circumstances: (a) the
disqualification case was filed before the election but was still pending (unresolved) after the election; (b) the
disqualification case was filed after the election but before the proclamation of the winner; and, (c) the
disqualification case was filed after the election and after the proclamation of the winner.

The issue in this case is whether the COMELEC committed grave abuse of discretion when it dismissed the
disqualification case against private respondent Trinidad.

The petition is partly meritorious.

We find private respondent's arguments on the propriety of the letters-complaint puerile. COMELEC itself
impliedly recognized in its Resolution that the petition was filed before the 8 May 1995 election in the form of
letters-complaint, thus —

This case originally came to the attention of this Commission on 26 April 1995 in a form of letter from
petitioner accusing respondent of utilizing government properties in his campaign and praying for the
latter's immediate disqualification. Another letter dated 7 May 1995 and addressed to the COMELEC
Regional Director of Region II reiterated petitioner's prayer while alleging that respondent and his men
committed acts of terrorism and violated the gun ban. Finally, on 11 May 1995, an Amended Petition
was filed with the Clerk of Court of the Commission containing substantially the same allegations as the
previous letters but supported by affidavits and other documentary evidence.
That the Amended Petition was filed only on 11 May 1995, or after the elections, is of no consequence. It was
merely a reiteration of the charges filed by petitioner against private respondent on 26 April 1995 and 7 May
1995 or before the elections. Consequently, the Amended Petition retroacted to such earlier dates. An
amendment which merely supplements and amplifies facts originally alleged in the complaint relates back to the
date of the commencement of the action and is not barred by the statute of limitations which expired after the
service of the original complaint. 9

The fact that no docket fee was paid therefor was not a fatal procedural lapse on the part of petitioner. Sec. 18,
Rule 42, of the COMELEC Rules of Procedure provides, "If the fees above described are not paid, the Commission
may refuse to take action thereon until they are paid and may dismiss the action or proceeding." The use of the
word "may" indicates that it is permissive only and operates to confer a discretion on the COMELEC whether to
entertain the petition or not in case of non-payment of legal fees. That the COMELEC acted on and did not
dismiss the petition outright shows that the non-payment of fees was not considered by it as a legal obstacle to
entertaining the same. Be that as it may, the procedural defects have been cured by the subsequent payment of
docket fees, and private respondent was served with summons, albeit belatedly, and he submitted his answer to
the complaint. Hence, private respondent has no cause to complain that no docket fee was paid, no summons
served upon him, or that he was not required to answer.

Neither do we agree with the conclusions of the COMELEC. We discern nothing in COMELEC Resolution No. 2050
declaring, ordering or directing the dismissal of a disqualification case filed before the election but which
remained unresolved after the election. What the Resolution mandates in such a case is for the Commission to
refer the complaint to its Law Department for investigation to determine whether the acts complained of have
in fact been committed by the candidate sought to be disqualified. The findings of the Law Department then
become the basis for disqualifying the erring candidate. This is totally different from the other two situations
contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but before the
proclamation of winners and that filed after the election and the proclamation of winners, wherein it was
specifically directed by the same Resolution to be dismissed as a disqualification case.

Moreover, Resolution No. 2050 as interpreted in Silvestre v. Duavit infringes on Sec. 6 of RA No. 6646, 10which
provides:

Sec. 6. Effects of Disqualification Case. — Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong (emphasis supplied).

Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification
case to its conclusion, i.e., until judgment is rendered thereon. The word "shall" signifies that this requirement
of the law is mandatory, operating to impose a positive duty which must be enforced. 11The implication is that
the COMELEC is left with no discretion but to proceed with the disqualification case even after the election.
Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the
election, Silvestre v. Duavit in effect disallows what RA No. 6646 imperatively requires. This amounts to a quasi-
judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond
the scope of its authority. Interpretative rulings of quasi-judicialbodies or administrative agencies must always
be in perfect harmony with statutes and should be for the sole purpose of carrying their general provisions into
effect. By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited.
Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress.
Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic
law prevails.
Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election
offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case
against him simply because the investigating body was unable, for any reason caused upon it, to determine
before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that
the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the
commission of election offenses would not be decided before the election. This scenario is productive of more
fraud which certainly is not the main intent and purpose of the law.

The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the
COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification case.
In Aguam v. COMELEC12 this Court held —

Time and again this Court has given its imprimatur on the principle that COMELEC is with authority to
annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has
assumed office, we have said, is no bar to the exercise of such power. It of course may not be availed of
where there has been a valid proclamation. Since private respondent's petition before the COMELEC is
precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this
issue is within the area allocated by the Constitution and law to COMELEC . . . Really, were a victim of a
proclamation to be precluded from challenging the validity thereof after that proclamation and the
assumption of office thereunder, baneful effects may easily supervene.

It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from
running or, if elected, from serving, or to prosecute him for violation of the election laws. Obviously, the fact
that a candidate has been proclaimed elected does not signify that his disqualification is deemed condoned and
may no longer be the subject of a separate investigation.

It is worth to note that an election offense has criminal as well as electoral aspects. Its criminal aspect involves
the ascertainment of the guilt or innocence of the accused candidate. Like in any other criminal case, it usually
entails a full-blown hearing and the quantum of proof required to secure a conviction is beyond reasonable
doubt. Its electoral aspect, on the other hand, is a determination of whether the offender should be disqualified
from office. This is done through an administrative proceeding which is summary in character and requires only
a clear preponderance of evidence. Thus, under Sec. 4 of the COMELEC Rules of Procedure, petitions for
disqualification "shall be heard summarily after due notice." It is the electoral aspect that we are more
concerned with, under which an erring candidate may be disqualified even without prior criminal conviction. 13

It is quite puzzling that the COMELEC never acted on Sunga's motion to suspend the proclamation of Trinidad.
The last sentence of Sec. 6 of RA No. 6646 categorically declares that the Commission may order the suspension
of the proclamation of a candidate sought to be disqualified whenever the evidence of his guilt is strong. And
there is not a scintilla of doubt that the evidence of Trinidad's guilt was strong as shown in the Report and
Recommendation of the COMELEC Law Department —

Parenthetically, there is merit to petitioner's petition against the respondent for disqualification for the
alleged commission of election offenses under Sec. 68 of the Omnibus Election Code, such as use of
armed men and act of terrorism, intimidation and coercion of voters, massive vote-buying and others,
duly supported by affidavits of witnesses and other documents. Consequently, the petitioner's evidence
supporting the disqualification of respondent remain unrebutted simply because respondent has
expressly waived his right to present evidence in SPA No. 95-213 in his Manifestation and objection to
the presentation of evidence in SPA No. 95-213 dated 16 June 1995, thus the waiver is the intentional
relinquishing of a known right of respondent TRINIDAD.
In fact, on the basis of this Report and Recommendation the COMELEC directed the filing of four (4) criminal
informations against Trinidad before the Regional Trial Court, an indication that there was indeedprima
facie evidence of violation of election laws.

However, Sunga's contention that he is entitled to be proclaimed as the duly elected Mayor of the Municipality
of Iguig, Province of Cagayan, in the event that Trinidad is disqualified finds no support in law and jurisprudence.
The fact that the candidate who obtained the highest number of votes is later disqualified for the office to which
he was elected does not entitle the candidate who obtained the second highest number of votes to be declared
the winner of the elective office. The votes cast for a disqualified person may not be valid to install the winner
into office or maintain him there. But in the absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was qualified, they
should not be treated as stray, void or meaningless.14

Sunga totally miscontrued the nature of our democratic electoral process as well as the sociological and
psychological elements behind voters' preferences. Election is the process of complete ascertainment of the
expression of the popular will. Its ultimate purpose is to give effect to the will of the electorate by giving them
direct participation in choosing the men and women who will run their government. Thus, it would be extremely
repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not
acquired the majority or plurality of votes is proclaimed winner and imposed as the representative of a
constituency, the majority of whom have positively declared through their ballots that they do not choose
him.15

While Sunga may have garnered the second highest number of votes, the fact remains that he was not the
choice of the people of Iguig, Cagayan. "The wreath of victory cannot be transferred from the disqualified
winner to the repudiated loser because the law then as now only authorizes a declaration of election in favor of
the person who has obtained a plurality of votes and does not entitle a candidate receiving the next highest
number of votes to be declared elected."16 In Aquino v. COMELEC,17 this Court made the following
pronouncement:

To simplistically assume that the second placer would have received the other votes would be to
substitute our judgment for the voter. The second placer is just that, a second placer. He lost the
election. He was repudiated by either a majority or plurality of voters. He could not be considered the
first among qualified candidates because in a field which excludes the disqualified candidate; the
conditions would have substantially changed. We are not prepared to extrapolate the results under
such circumstances.

Also, what Sunga wants us to do is to disregard the express mandate of Sec. 44, RA No. 7160,18 which provides in
part —

Sec. 44. Permanent vacancies in the office of the Governor, Vice-Governor, Mayor, Vice-Mayor. — (a) If
a permanent vacancy occurs in the office of the Governor or Mayor, the Vice-Governor or Vice-Mayor
concerned shall become the Governor or Mayor . . .

For purposes of this chapter, a permanent vacancy arises when an elective local official fills a higher
vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns
or is otherwise permanently incapacitated to discharge the functions of his office . . . .

This provision is echoed in Art. 83 of the Implementing Rules and Regulations of the Local Government Code of
1991.
The language of the law is clear, explicit and unequivocal, thus admits no room for interpretation but merely
application. This is the basic legal precept. Accordingly, in the event that Trinidad is adjudged to be disqualified,
a permanent vacancy will be created for failure of the elected mayor to qualify for the said office. In such
eventuality, the duly elected vice-mayor shall succeed as provided by law.19

WHEREFORE, the petition is PARTIALLY GRANTED. The 17 May 1996 and 30 July 1996 Resolutions of the
COMELEC are ANNULLED and SET ASIDE. COMELEC is ordered to REINSTATE SPA No. 95-213, "Manuel C. Sunga v.
Ferdinand B. Trinidad," for disqualification, and ACT on the case taking its bearings from the opinion herein
expressed. No costs.

SO ORDERED.

[G.R. Nos. 122250 & 122258. July 21, 1997.]

EDGARDO C. NOLASCO, Petitioner, v. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS,

MEYCAUAYAN, BULACAN, and EDUARDO A. ALARILLA, Respondents.

FLORENTINO P. BLANCO, Petitioner, v. COMMISSION ON ELECTIONS, and EDUARDO A. ALARILLA, Respondents.

Pete Quirino-Cuadra for petitioner in G.R. No. 122250.

Benitez, Parlade, Africa, Herrera, Parlade & Panga Law Offices for petitioner G.R. No. 122258.

Romulo B. Macalintal, and George S. Briones for Private Respondent.

SYNOPSIS

In the 1995 election for Mayor of Meycauayan, Bulacan, Florentino Blanco won over Eduardo Alarilla while
Edgardo Nolasco was elected vice-mayor. Alarilla however, filed with the COMELEC a petition to disqualify Blanco.
The COMELEC (First Division), on the ground of vote-buying, disqualified Blanco who moved for reconsideration in
the COMELEC en banc. Nolasco, as vice-mayor, intervened in the proceedings, moved for reconsideration, urging
that as vice-mayor he should be declared Mayor in the event Blanco was finally disqualified, citing Section 44 of RA
7160 (Local Government Code of 1991) and the Courts’ decision in Labo v. COMELEC. The COMELEC en banc
denied both motions for reconsideration. Hence, this two petitions for certiorari by Blanco and Nolasco. The Court
affirmed the resolution of the COMELEC en banc but with modification that Nolasco is adjudged Mayor of
Meycauayan, Bulacan in view of the disqualification of Blanco.

SYLLABUS

1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; PETITION FOR DISQUALIFICATION; COMELEC HAS

JURISDICTION OVER PROCLAMATION AND DISQUALIFICATION CASES. — It cannot be denied that the COMELEC has
jurisdiction over proclamation and disqualification cases. Article IX-C, Section 2 of the Constitution endows the
COMELEC the all encompassing power to "enforce and administer all laws and regulations relative to the conduct
of an election . . ." We have long ruled that this broad power includes the power to cancel proclamations. Section
68 of B.P. Blg. 881 (Omnibus Election Code) and Section 6 of R.A. No. 6646.
 2. ID.; PETITIONS FOR DISQUALIFICATION ARE SUBJECT TO SUMMARY HEARINGS. — Petitions for disqualification
are subject to summary hearings. Blanco also urges that COMELEC erred in using summary proceedings to resolve
his disqualification case. Again, the COMELEC action is safely anchored on Section 4 of its Rules of Procedure which
expressly provides that petitions for disqualification "shall be heard summarily after due notice." Vote-buying has
its criminal and electoral aspects. Its criminal aspect to determine the guilt or innocence of the accused cannot be
the subject of summary hearing. However, its electoral aspect to ascertain whether the offender should be
disqualified from office can be determined in an administrative proceeding that is summary in character.

3. ID.; RESOLUTION NO. 2050; COMELEC CANNOT ALWAYS BE STRAITJACKETED BY THE PROCEDURAL RULE UNDER
RESOLUTION NO. 2050. — We hold that COMELEC cannot always be straitjacketed by this procedural rule. The
COMELEC has explained that the resolution was passed to take care of the proliferation of disqualification cases at
that time. It deemed it wise to delegate its authority to its Law Department as partial solution to the problem. The
May 8, 1995 elections, however, did not result in a surfeit of disqualification cases which the COMELEC cannot
handle. Hence, its decision to resolve the disqualification of Blanco directly and without referring it to its Law
Department is within its authority, a sound exercise of its discretion. The action of the COMELEC is in accord with
Section 28 of R.A. No. 6646.

4. ID.; THE CASE LAW IS THAT IN A MAYORALTY ELECTION, THE CANDIDATE WHO OBTAINED THE SECOND HIGHEST
NUMBER OF VOTES CANNOT BE PROCLAIMED WINNER IN THE CASE THE WINNING CANDIDATE IS DISQUALIFIED.
— Our case law is now settled that in a mayoralty election, the candidate who obtained the second highest
number of votes, in this case Alarilla, cannot be proclaimed winner in case the winning candidate is disqualified.
Thus, we reiterated the rule in the fairly recent case of Reyes v. COMELEC viz: . . . "We likewise find no grave abuse
of discretion on the part of the COMELEC in denying claimed mayor petitioner Julius O. Garcia’s petition to be
proclaimed mayor in view of the disqualification of Renato U. Reyes." That the candidate who obtains the second
highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is not settled.
The doctrinal instability caused by see-sawing rulings has since been removed. In the latest ruling on the question,
this Court said: To simplistically assume that the second placer would have received the other votes would be to
substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the
elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among
qualified candidates because in a field which excludes the disqualified candidate, the conditions would have
substantially changed. We are not prepared to extrapolate the results under the circumstances. "Garcia’s plea that
the votes cast for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast
in the belief that Reyes was qualified and for that reason can not be treated as stray, void, or meaningless. The
subsequent finding that he is disqualified cannot retroact to the date of the elections so as to invalidate the votes
cast for him." Consequently, respondent COMELEC committed grave abuse of discretion insofar as it failed to
follow the above doctrine, a descendant of our ruling in Labo v. COMELEC.

DECISION

PUNO, J.:

First, we rewind the facts. The election for mayor of Meycauayan, Bulacan was held on May 8, 1995. The principal
protagonists were petitioner Florentino P. Blanco and private respondent Eduardo A. Alarilla. Blanco received
29,753 votes, while Alarilla got 23,038 votes. 1 Edgardo Nolasco was elected Vice-Mayor with 37,240 votes.

On May 9, 1995, Alarilla filed with the COMELEC a petition to disqualify Blanco. He alleged:jgc:chanrobles.com.ph

"x x x

"4. Based on intelligence reports that respondent was maintaining his own ‘private army’ at his aforesaid resident,
P/Insp. Ronaldo O. Lee of the Philippine National Police assigned with the Intelligence Command at Camp Crame,
applied for and was granted search warrant no. 95-147 by Branch 37 of the Regional Trial Court of Manila on 5
May 1995. A copy of the said search warrant is attached as Annex "A" hereof.

5. In compliance with said search warrant no. 95-147, an elite composite team of the PNP Intelligence Command,
Criminal Investigation Service (CIS), and Bulacan Provincial Command, backed up by the Philippine National Police
Special Action Force, accompanied by mediamen who witnessed and recorded the search by video and still
cameras, raided the house of respondent Florentino Blanco at his stated address at Bancal, Meycauayan, Bulacan.

6. Enclosed as Annex. "A-1" is a video tape taken of the proceedings during the raid.

7. The composite team was able to enter the said premises of respondent Florentino Blanco where they conducted
a search of the subject firearms and ammunition.

8. The search resulted in the arrest of six (6) men who were found carrying various high powered firearms without
any license or authority to use or possess such long arms. These persons composing respondent’s ‘private army,’
and the unlicensed firearms are as follows:chanrob1es virtual 1aw library

A. Virgilio Luna y Valderama —

1. PYTHOM (sic) Cal. 347 SN 26946 with six (6) Rounds of Ammo.

2. INGRAM M10 Cal. 45 MP with Suppressor SN: 45457 with two (2) Mags and 54 Rounds of Ammo.

B. Raymundo Bahala y Pon —

1. HKMP5 Sn. C334644 with two (2) Mags and 47 Rounds of Ammo.

C. Roberto Santos y Sacris —

1. Smith and Wesson 357 Magnum Sn: 522218 with six (6) Rounds of Ammo.

D. Melchor Cabanero y Oreil —

1. Armscor 12 Gauge with three (3) Rounds of Ammo.

E. Edgardo Orteza y Asuncion —

1. Paltik Cal. 38 Rev with six (6) Rounds of Ammo.

F. Francisco Libari y Calimag —

1. Paltik Cal. 38 SN: 36869

Copies of the inventory receipts are hereto attached as Annexes "B" to "B-5" hereof.

9. During the search, members of the composite team saw through a large clear glass window, respondent’s Galil
assault rifle on a sofa inside a closed room of the subject premises.

10. Not allowed entry thereto by respondent and his wife, the members of the composite police-military team
applied for the issuance of a second search warrant (Annex "B-6") so that they could enter the said room to seize
the said firearm.
11. While waiting for the issuance of the second search warrant, respondent’s wife and respondent’s brother,
Mariano Blanco, claiming to be the campaign manager of respondent in the Nationalist People’s Coalition Party,
asked permission to enter the locked room so they could withdraw money in a vault inside the locked room to pay
their watchers, and the teachers of Meycauayan in the 8 May 1995 elections.

12. For reasons not known to petitioner, Mrs. Florentino Blanco and Mariano Blanco, were allowed to withdraw
ten (10) large plastic bags from the vault.

13. When the said PNP composite team examined the ten (10) black plastic bags, they found out that each bag
contained ten (10) shoe boxes. Each shoe box when examined contained 200 pay envelopes, and each pay
envelope when opened contained the amount of P1,000.00. When questioned, respondent’s brother Mariano
Blanco and respondent’s wife, admitted to the raiding team that the total amount of money in the ten (10) plastic
bags is P10,000,000.00.

14. The labels found in the envelope shows that the money were intended as respondent’s bribe money to the
teachers of Meycauayan. Attached as Annex "C" is the cover of one of the shoe boxes containing the inscription
that it is intended to the teachers of Brgy. Lawa, Meycauayan, Bulacan.

15. On election day 8 May 1995, respondent perpetrated the most massive vote-buying activity ever in the history
of Meycauayan politics. Attached as Annex "D" is the envelope where this P10,000,000.00 was place in 100 peso
denominations totalling one thousand pesos per envelope with the inscription ‘VOTE !!! TINOY.’chanrobles virtual
lawlibrary

This massive vote-buying activity was engineered by the respondent through his organization. called ‘MTB’ or
‘MOVEMENT FOR TINOY BLANCO VOLUNTEERS.’ The chairman of this movement is respondent’s brother, Mariano
P. Blanco, who admitted to the police during the raid that these money were for the teachers and watchers of
Meycauayan. Bulacan.

Attached as Annex "E" hereof is an MTB ID issued to one Armando Bulan of Precinct 77-A, Brgy. Jasmin, Bancal,
Meycauayan, Bulacan. You will note that the ID is perforated in the middle. The purpose is for the voter to tear the
office copy and return it to respondent’s headquarters to receive the balance of the P500.00 of the bribe money
after voting for respondent during the elections. The voter will initially be given a down-payment of P500.00.

16. This massive vote-buying was also perpetrated by respondent thru the familiar use of flying voters. Attached as
Annex "F" hereof is a copy of the Police Blotter dated 8 May 1995 showing that six (6) flying voters were caught in
different precincts of Meycauayan, Bulacan, who admitted after being caught and arrested that they were paid
P200.00 to P300.00 by respondent and his followers, to vote for other voters in the voter’s list.

17. Not satisfied, and with his overflowing supply of money, respondent used another scheme as follows.
Respondent’s paid voter will identify his target from the list of voter and will impersonate said voter in the list and
falsify his signature.

Attached as Annex "G" hereof is the Minutes of Voting and Counting of Votes in Precinct No. 26, Brgy. Calvario,
Meycauayan, Bulacan. Annex "G-1" is the statement of one Ma. Luisa de los Reyes Cruz stating that when she went
to her precinct to vote, her name was already voted upon by another person. This entry was noted by Leticia T.
Villanco, Poll Chairman; Estelita Artajo, — Poll Clerk; and Nelson John Nito — Poll Member.

18. Earlier before the election, respondent used his tremendous money to get in the good graces or the local
Comelec Registrar, who was replaced by this Office upon the petition of the people of Meycauayan. Attached as
Annex "H" hereof is an article in the 3 May 1995 issue of Abante entitled ‘1 M Suhol sa Comelec Registrar.’

19. The second search warrant on respondent’s residence yielded to more firearms and thousands of rounds of
ammunition. These guns were used by respondent to terrorize the population and make the people afraid to
complain against respondent’s massive vote buying and cheating in today’s elections. Respondent’s bribery of the
teachers ensured the implementation of his vote-buying ballot box switching, impersonations, and other cheating
schemes.

Attached as Annexes ‘I-1’ to I-2’ are the pertinent Receipts of the guns and ammunitions seized from Respondent.
Attached as Annex "J" is a Certification to the same effect.

20. The above acts committed by respondent are clear grounds for disqualification under Sec. 68 of the Omnibus
Election Code for giving money to influence, induce or corrupt the voters or public officials performing election
functions; for committing acts of terrorism to enhance his candidacy, and for spending in his election campaign an
amount in excess of that allowed by the Election Code. There are only 97,000 registered voters in Meycauayan
versus respondent’s expenses of at least P10,000,000.00 as admitted above. (Emphasis supplied).

On May 15, 1995, Alarilla filed a Very Urgent Ex Parte Motion to Suspend Proclamation. The COMELEC (First
Division) granted the motion after finding that there was a "probable commission of election offenses which are
grounds for disqualification pursuant to the provisions of section 68 of the Omnibus Election Code (BP 881), and
the evidence in support of disqualification is strong." It directed the Municipal Board of Canvassers "to complete
the canvassing of election returns of the municipality of Meycauayan, but to suspend proclamation of respondent
Florentino P. Blanco should he obtain the winning number of votes for the position of Mayor of Meycauayan,
Bulacan until such time when the petitions for disqualification, against him shall have been resolved."cralaw
virtua1aw library

On May 25, 1995, Blanco filed a Motion to Lift or Set Aside the Order suspending his proclamation. On May 29,
1995, he filed his Answer to the petition to disqualify him.

On May 30, 1995, the COMELEC (First Division) heard the petition to disqualify Blanco. The parties thereafter
submitted their positions papers. 2 Blanco even replied to the position paper of Alarilla on June 9, 1995.

On August 15, 1995, the COMELEC (First Division) disqualified Blanco on the ground of vote-buying, viz.: 3

"x x x

"WHEREFORE, premises considered, the Commission (First Division) RESOLVES to DISQUALIFY Respondent
Florentino P. Blanco as a candidate for the Office of Mayor of Meycauayan, Bulacan in the May 8, 1995 elections
for having violated Section 261 (a) of the Omnibus Election Code. The Order suspending the proclamation of herein
Respondent is now made PERMANENT. The Municipal Board of Canvassers of Meycauayan, Bulacan shall
immediately reconvene and, on the basis of the completed canvass of the election returns, determine the winner
out of the remaining qualified candidates who shall be immediately proclaimed.

SO ORDERED."cralaw virtua1aw library

Blanco moved for reconsideration on August 19, 1995 in the COMELEC en banc. Nolasco, as vice mayor, intervened
in the proceedings. 4 He moved for reconsideration of that part of the resolution directing the Municipal Board of
Canvassers to "immediately reconvene and, on the basis of the completed canvass of the election returns,
determine the winner out of the remaining qualified candidates who shall be immediately proclaimed." He urged
that as vice-mayor he should be declared mayor in the event Blanco was finally disqualified. The motions were
heard on September 7, 1995. The parties were allowed to file their memoranda with right of reply. On October 23,
1995, the COMELEC en banc denied the motions for reconsideration.

In this petition for certiorari, 5 Blanco contends:jgc:chanrobles.com.ph

"x x x
18. Respondent COMELEC En Banc committed grave abuse or discretion amounting to lack or excess of jurisdiction
and acted arbitrarily in affirming en toto and adopting as its own the majority decision of the First Division in
that:chanrob1es virtual 1aw library

18.1 It upheld the validity of the May 17, 1995 order suspending proclamation of Petitioner Blanco herein as the
winning candidate for Mayor of Meycauayan without the benefit of any notice or hearing in gross and palpable
violation of Blanco’s constitutional right to due process of law.

18.2 It violated the provisions of COMELEC Res. No. 2050 as amended, prescribing the procedure for disposing of
disqualification cases arising out of the prohibited acts mentioned in Sec. 68 of the Omnibus Election Code, which
Resolution this Honorable Tribunal explicitly sanctioned in the case of Lozano v. Yorac. Moreover, it (COMELEC)
violated Blanco’s right to equal protection of the laws by setting him apart from other respondents facing similar
disqualification suits whose case were referred by COMELEC to the Law Department pursuant to Com. Res. No.
2050 and ordering their proclamation — an, act which evidently discriminated against Petitioner Blanco herein.

18.3 It decided Petitioner Blanco’s disqualification case in a SUMMARY PROCEEDING in violation of law and the
precedents which consistently hold that questions of VOTE-BUYING, terrorism similar such acts should be resolve
in a formal election protest where the issue of vote buying is subjected to a full-dress hearing instead of disposing
of the issue in a summary proceeding;

18.4 It declared Petitioner Blanco as having been involved in a conspiracy to engage in VOTE-BUYING without that
minimum quantum of proof required to establish a disputable presumption of vote-buying in gross and palpable
violation of the provisions of Section 28, Rep. Act. 6646;

18.5 It ordered the proclamation of a SECOND PLACER as the duly elected Mayor of Meycauayan, Bulacan, in gross
violation and utter disregard of the doctrine laid down by this Honorable Supreme Court in the case of LABO v.
COMELEC which was reiterated only recently in the case of Aquino v. Syjuco.

On the other hand. Nolasco contends in his petition for certiorari 6 that he should be declared as Mayor in view of
the disqualification of Blanco. He cites section 44 of R.A. No. 7160 otherwise known as the Local Government Code
of 1991 and our decision in Labo v. COMELEC. 7

We shall first resolve the Blanco petition.

Blanco was not denied due process when the COMELEC (First Division) suspended his proclamation as Mayor
pending determination of the petition for disqualification against him. Section 6 of R.A. 6646 and sections 4 and 5
of the Rule 25 of the Comelec Rules of Procedure merely require that evidence of guilt should be strong to justify
the COMELEC in suspending a winning candidate’s proclamation. It ought to be emphasized that the suspension
order is provisional in nature and can be lifted when the evidence so warrants. It is akin to a temporary restraining
order which a court can issue ex-parte under exigent circumstances.

In any event, Blanco was given all the opportunity to prove that the evidence on his disqualification was not
strong. On May 25, 1995, he filed a Motion to Lift or Set Aside the Order suspending his proclamation. On May 29,
1995, he filed his Answer to the petition to disqualify him. The COMELEC heard the petition. Blanco thereafter
submitted his position paper and reply to Alarilla’s position paper. The COMELEC considered the evidence of the
parties and their arguments and thereafter affirmed his disqualification. The hoary rule is that due process does
not mean prior hearing but only an opportunity to be heard. The COMELEC gave Blanco all the opportunity to be
heard. Petitions for disqualification are subject to summary hearings. 8

Blanco also faults the COMELEC for departing from the procedure laid down in COMELEC Resolution 2050 as
amended, in disqualification cases. The resolution pertinently provides:jgc:chanrobles.com.ph

"x x x
Where a similar complaint is filed after election but before proclamation of the respondent candidate the
complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for
preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima
facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the
complainant may file a petition for suspension of the proclamation the respondent with the court before which the
criminal case is pending and the said court may order the suspension of the proclamation if the evidence of guilt is
strong."cralaw virtua1aw library

It is alleged that the violation is fatal as it deprived Blanco of equal protection of our laws.

We do not agree. It cannot be denied that the COMELEC has jurisdiction over proclamation and disqualification
cases. Article IX-C, section 2 of the Constitution endows the COMELEC the all encompassing power to "enforce and
administer all laws and regulations relative to the conduct of an election . . ." We have long ruled that this broad
power includes the power to cancel proclamations. 9 Our laws are no less explicit on the matter. Section 68 of B.P.
Blg. 881 (Omnibus Election Code) provides:jgc:chanrobles.com.ph

"Sec. 68. Disqualification. — Any candidate who, in an action or protest in which he is a party is declared by final
decision of a competent court guilty of, or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of
that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97
and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall
be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who
is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for an elective office
under this Code, unless said person has waive his status as permanent resident or immigrant of a foreign country
in accordance with the residence requirement provided for in the elections laws."cralaw virtua1aw library

Section 6 of R.A. No. 6646 likewise provides:jgc:chanrobles.com.ph

"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."cralaw
virtua1aw library

Despite these laws and existing jurisprudence, Blanco contends that COMELEC must follow the procedure in
Resolution No. 2050 as amended. We hold that COMELEC cannot always be straitjacketed by this procedural rule.
The COMELEC has explained that the resolution was passed to take care of the proliferation of disqualification
cases at that time. It deemed it wise to delegate its authority to its Law Department as partial solution to the
problem. The May 8, 1995 elections, however, did not result in a surfeit of disqualification cases which the
COMELEC cannot handle. Hence, its decision to resolve the disqualification case of Blanco directly and without
referring it to its Law Department is within its authority, a sound exercise of its discretion. The action of the
COMELEC is in accord with Section 28 of R.A. No. 6646, viz:jgc:chanrobles.com.ph

"x x x

SEC. 28. Prosecution of Vote-Buying and Vote-Selling. — The presentation of a complaint for violations of
paragraph (a) or (b) of Section 261 of Batas Pambansa Blg. 881 supported by affidavits of complaining witness
attesting to the offer or promise by or of the voter’s acceptance of money or other consideration from the
relatives, leaders or sympathizers of a candidate, shall be sufficient basis for an investigation to be immediately
conducted by the Commission, directly or though its duly authorized legal officers under Section 68 or Section 265
of said Batas Pambansa Blg. 881. (Emphasis supplied)

"x x x"

Indeed, even Commissioner Maambong who dissented from the majority ruling, clings to the view that "Resolution
No. 2050 cannot divest the Commission of its duty to resolve disqualification cases under the clear provision of
section 6 of R.A. 6646." 10 Clearly too, Blanco’s contention that he was denied equal protection of the law is off-
line. He was not the object of any invidious discrimination. COMELEC assumed direct jurisdiction over his
disqualification case not to favor anybody but to discharge its constitutional duty of disposing the case in a fair and
as fast a manner as possible.

Blanco also urges that COMELEC erred in using summary proceedings to resolve his disqualification case. Again,
the COMELEC action is safely anchored on section 4 of its Rules of Procedure which expressly provides that
petitions for disqualification "shall be heard summarily after due notice." Vote-buying has its criminal and electoral
aspects. Its criminal aspect to determine the guilt or innocence of the accused cannot be the subject of summary
hearing. However, its electoral aspect to ascertain whether the offender should be disqualified from office can be
determined in an administrative proceeding that is summary in character.

The next issue is whether there is substantial evidence to prove the vote buying activities of Blanco. The factual
findings of the COMELEC (First Division) are as follows: 11

"x x x

"Respondent argues that the claim of vote-buying has no factual basis because the affidavits and sworn statements
admitted as evidence against him are products of hearsay; inadmissible because of the illegal searches; they
violate the Rule of Res Inter Alios Acta and the Offense of vote-buying requires consummation.

We are not impressed.

A studied reading of the affidavits [Respondent’s affidavit is unsigned] attached to the Reply of the Respondent to
the Position Paper of the Petitioner [Annexes 1, 2 and 3] would reveal that they are in the nature of general denials
emanating from individuals closely associated or related to respondent Blanco.

The same holds true with the affidavits attached to Respondent’s Position Paper [Annexes 1, 2, 3 and 4]. Said
affidavits were executed by Blanco’s political leaders and private secretary.

On the other hand, the affidavit of Romeo Burgos [Exhibit "E-1" ] is rich in detail as to how the alleged vote-buying
was conducted.

Moreover, the same is corroborated by object evidence in the nature of MTB [Movement for Tinoy Blanco] cards
which were in the possession of the affiants and allegedly used as a means to facilitate the vote-buying scheme.

There are also admissions of certain individuals who received money to vote for Respondent [Annexes "E-2", "E-3",
"E-4", "E-5", "E-6", "E-7", "E-8", "E-9" and "E-10].

On the day of the elections, two individuals were apprehended for attempting to vote for Respondent when they
allegedly are not registered voters of Meycauayan. A criminal complaint for violation of section 261 [2] of BP 881
was filed by P/Sr. Inspector Alfred S. Corpus on May 9, 1995 with the Municipal Trial Court of Bulacan. The same
was docketed as Criminal Case 95-16996 [Exhibit F-2].

Again similar pay envelopes with money inside them were found in the possession of the suspected flying voters.
The incident was corroborated by Adriano Llorente in his affidavit narrating the same [Exhibit "F-1" ]. Llorente, a
poll watcher of Petitioner, was the one who accosted the two suspected flying voters when the latter attempted to
vote despite failing to locate their names in the voter’s list.

From rich backdrop of detail, We are disappointed by the general denial offered by Respondent. In People of the
Philippines v. Navarro, G.R. No. 96251, May 11, 1993, 222 SCRA 684, the Supreme Court noted that "Denial is the
weakest defense’ [page 692].

In People of the Philippines v. Rolando Precioso, Et Al., G.R. No. 95890, May 12, 1993, 221 SCRA 1993, the Supreme
Court observed that,

‘We have consistently ruled that denials if unsubstantiated by clear and convincing evidence are negative and self-
serving evidence which deserves no weight in law and cannot be given greater evidentiary weight over the
testimony of credible witnesses. Ergo, as between the positive declarations of the prosecution witness and the
negative statements of the accused, the former deserve more credence." [page 754].’

However, Respondent conveniently resorts to section 33, Rule 130 of the Revised Rules of Court which states that
a declaration of an accused acknowledging his guilty of the offense charged, or of any offense necessarily included
herein, may be given in evidence against him [affiants who executed Exhibits E-1 to E-10] but not against
Respondent.

There is no merit in this contention.

The affiants are not the accused. Their participation in the herein case is in the nature of witnesses who have
assumed the risk of being subsequently charged with violating Section 261 [1] of BP 881. In fact, their affidavits
were sought by the Petitioner and not by any law enforcement agency. Even Respondent admits this finding when
he filed his Reply to Petitioner’s Position Paper and Motion to Refer for Preliminary Investigation and Filing of
Information in Court against the Persons Who Executed Exhibits E-1 to E-10 for Having Admitted Commission of
Election Offense. If they were the accused, why file the motion? Would not this be redundant if not irrelevant?

x x x

Another telling blow is the unexplained money destined for the teachers. Why such a huge amount? Why should
the Respondent, a mayoralty candidate, and according to his own admission, be giving money to teachers a day
before the elections? What were the peso bills doing in pay envelopes with the inscription "VOTE !!! TINOY", and
kept in shoe boxes with the word "Teachers" write on the covers thereof?

There is also something wrong with the issuance of the aforementioned MTB cards when one considers the
testimony of Burgos that more or less 50,000 of these cards, which is equivalent to more or less 52% of the 97,000
registered voters of Meycauayan, Bulacan, were printed by respondent; that there are only 443 precincts in
Meycauayan; that under the law, a candidate is allowed only one watcher per polling place and canvassing area;
and, finally, that there is no explanation at all by the respondents as to what these "watchers" did in order to get
paid P300.00 each.

x x x

Respondent also avers that for an allegation of vote-buying to prosper, the act of giving must be consummated.

Section 281 [a] of BP 881 states "any person who gives, offers, or promises money . . ." Section 28 of RA 6646 also
states that "the giver, offeror, the promisor as well as the solicitor, recipient and conspirator referred to in
paragraphs [a] and [b] of section 261 of Batas Pambansa Blg. 881 shall be liable as principals: . . .
While the giving must be consummated, the mere act of offering or promising something in consideration for
someone’s vote constitutes the offense of vote-buying.

In the case at bar, the acts of offering and promising in consideration for the votes of said affiants is sufficient for a
finding of the commission of the offense of vote-buying."cralaw virtua1aw library

These factual findings were affirmed by the COMELEC en banc against the lone dissent of Commissioner
Maambong.

There is an attempt to discredit these findings. Immediately obvious in the effort is the resort to our technical rules
of evidence. Again, our ingrained jurisprudence is that technical rules of evidence should not be rigorously applied
in administrative proceedings especially where the law calls for the proceeding to be summary in character. More
importantly, we cannot depart from the settled norm of reviewing decisions of the COMELEC, i.e., that "this Court
cannot review the factual findings of the COMELEC absent a grave abuse of discretion and a showing of
arbitrariness in its decision, order or resolution." 12

We now come to the petition of Nolasco that he should be declared as mayor in the event Blanco is finally
disqualified. 13 We sustain the plea. Section 44, Chapter 2 of the Local Government Code of 1991 (R.A. No. 7160) is
unequivocal, thus:jgc:chanrobles.com.ph

"x x x

"SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. — (a) If a
permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall
become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor,
mayor, or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second
highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor, as the case
may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members
according to their ranking as defined herein.

(b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay
member or, in case of his permanent inability, the second highest ranking sanggunian member shall, become the
punong barangay.

(c) A tie between or among the highest ranking sangguniang members shall be resolved by the drawing of lots.

(d) The successors as defined herein shall serve only the unexpired terms of their predecessors.

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office,
refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office.chanroblesvirtuallawlibrary

For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis
of the proportion of votes obtained by each winning candidate to the total number of registered voters in each
distribution the immediately preceding election."cralaw virtua1aw library

In the same vein, Article 83 of the Rules and Regulations Implementing, the Local Government Code of 1991
provides"

"x x x

"ART. 83. Vacancies and Succession of Elective Local Officials. — (a) What constitutes permanent vacancy — A
permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails
to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge
the functions of his office.

(b) Permanently vacancies in the offices of the governor, vice governor, mayor and vice mayor —

(1) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor
concerned shall ipso facto become the governor or mayor. If a permanent vacancy occurs in the offices of the
governor, mayor, or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the
second highest ranking sanggunian member, shall ipso facto become the governor, vice governor, mayor or vice
mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other
sanggunian members according to their ranking as defined in this Article."cralaw virtua1aw library

Our case law is now settled that in a mayoralty election, the candidate who obtained the second highest number
of votes, in this case Alarilla, cannot be proclaimed winner in case the winning candidate is disqualified. Thus, we
reiterated the rule in the fairly recent case of Reyes v. COMELEC, 14 viz:jgc:chanrobles.com.ph

"x x x

"We likewise find no grave abuse of discretion on the part of the COMELEC in denying petitioner Julius O. Garcia’s
petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes.

"That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the
winning candidate is disqualified is now settled. The doctrinal instability by see-sawing rulings has since been
removed. In the latest ruling on the question, this Court said:jgc:chanrobles.com.ph

"To simplistically assume that the second placer would have received the other votes would be to substitute our
judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was
repudiated by either a majority or plurality of voters. He could not be considered the first among qualified
candidates because in a field which excludes the disqualified candidate, the conditions would have substantially
changed. We are not prepared to extrapolate the results under the circumstances.

"Garcia’s plea that the votes cast for Reyes be invalidated is without merit. The votes cast for Reyes are presumed
to have been cast in the belief that Reyes was qualified and for that reason can not be treated as stray, void, or
meaningless. The subsequent finding that he is disqualified cannot retroact to the date of the elections so as to
invalidate the votes cast for him."cralaw virtua1aw library

Consequently, respondent COMELEC committed grave abuse of discretion insofar as it failed to follow the above
doctrine, a descendant of our ruling in Labo v. COMELEC. 15

A final word. The dispute at bar involves more than the mayoralty of the municipality of Meycauayan, Bulacan. It
concerns the right of suffrage which is the bedrock of republicanism. Suffrage is the means by which our people
express their sovereign judgment. Its free exercise must be protected especially against the purchasing power of
the peso. As we succinctly held in People v. San Juan, 16 "each time the enfranchised citizen goes to the polls to
assert this sovereign will, that abiding credo of republicanism is translated into living reality. If that will must
remain undefiled at the starting level of its expression and application, every assumption must be indulged in and
every guarantee adopted to assure the unmolested exercise of the citizen’s free choice. For to impede, without
authority valid in law, the free and orderly exercise o the right of suffrage, is to inflict the ultimate indignity on the
democratic process."cralaw virtua1aw library

IN VIEW WHEREOF, the resolution of the respondent COMELEC en banc dated October 23, 1995 is affirmed with
the modification that petitioner Edgardo C. Nolasco is adjudged as Mayor of Meycauayan, Bulacan in view of the
disqualification of Florentino P. Blanco. No costs.
SO ORDERED.

G.R. No. 181613 November 25, 2009

ROSALINDA A. PENERA, Petitioner,

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

RESOLUTION

CARPIO, J.:

We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this Court’s Decision of 11 September 2009
(Decision).

The assailed Decision dismissed Penera’s petition and affirmed the Resolution dated 30 July 2008 of the COMELEC
En Banc as well as the Resolution dated 24 July 2007 of the COMELEC Second Division. The Decision disqualified
Penera from running for the office of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor
should succeed Penera.

In support of her motion for reconsideration, Penera submits the following arguments:

1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as amended by
Section 13 of RA 9369.

2. The petition for disqualification failed to submit convincing and substantial evidence against Penera for
violation of Section 80 of the Omnibus Election Code.

3. Penera never admitted the allegations of the petition for disqualification and has consistently disputed
the charge of premature campaigning.

4. The admission that Penera participated in a motorcade is not the same as admitting she engaged in
premature election campaigning.

Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or seeking an elective
public office, who has filed a certificate of candidacy x x x." The second sentence, third paragraph, Section 15 of RA
8436, as amended by Section 13 of RA 9369, provides that "[a]ny person who files his certificate of candidacy
within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which
he filed his certificate of candidacy." The immediately succeeding proviso in the same third paragraph states that
"unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid
campaign period." These two provisions determine the resolution of this case.

The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate of candidacy]
proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after
the filing of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate,
hence, constituting premature campaigning, for which he/she may be disqualified." 1

Under the Decision, a candidate may already be liable for premature campaigning after the filing of the certificate
of candidacy but even before the start of the campaign period. From the filing of the certificate of candidacy, even
long before the start of the campaign period, the Decision considers the partisan political acts of a person so filing
a certificate of candidacy "as the promotion of his/her election as a candidate." Thus, such person can be
disqualified for premature campaigning for acts done before the start of the campaign period. In short, the
Decision considers a person who files a certificate of candidacy already a "candidate" even before the start of the
campaign period. lawphil

The assailed Decision is contrary to the clear intent and letter of the law.

The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of candidacy is not a
candidate until the start of the campaign period. In Lanot, this Court explained:

Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in
an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a
particular candidate or candidates; (3) the act is done outside the campaign period.

The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who "has filed
a certificate of candidacy" to an elective public office. Unless one has filed his certificate of candidacy, he is not a
"candidate." The third element requires that the campaign period has not started when the election campaign or
partisan political activity is committed.

Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under
Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then no one can be
prosecuted for violation of Section 80 for acts done prior to such last day. Before such last day, there is no
"particular candidate or candidates" to campaign for or against. On the day immediately after the last day of filing,
the campaign period starts and Section 80 ceases to apply since Section 80 covers only acts done "outside" the
campaign period.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on
such last day, which is before the start of the campaign period and after at least one candidate has filed his
certificate of candidacy. This is perhaps the reason why those running for elective public office usually file their
certificates of candidacy on the last day or close to the last day.

There is no dispute that Eusebio’s acts of election campaigning or partisan political activities were committed
outside of the campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29
December 2003, was a "candidate" when he committed those acts before the start of the campaign period on 24
March 2004.

Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to
120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81
days earlier. The crucial question is: did this change in the deadline for filing the certificate of candidacy make one
who filed his certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80 if he
engaged in election campaign or partisan political activities prior to the start of the campaign period on 24 March
2004?

Section 11 of RA 8436 provides:

SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official ballot which shall
contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum
or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and
uniformly printed using the same type size. A fixed space where the chairman of the Board of Election Inspectors
shall affix his/her signature to authenticate the official ballot shall be provided.

Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/ manifestation to
participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided,
That, any elective official, whether national or local, running for any office other than the one which he/she is
holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the
start of the campaign period corresponding to the position for which he/she is running: Provided, further, That,
unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign
period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate
of candidacy for the positions of President, Vice-President, Senators and candidates under the party-list system as
well as petitions for registration and/or manifestation to participate in the party-list system shall be on February 9,
1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998.

The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the
price comparable with that of private printers under proper security measures which the Commission shall adopt.
The Commission may contract the services of private printers upon certification by the National Printing
Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and
deputized citizens’ arms of the Commission may assign watchers in the printing, storage and distribution of official
ballots.

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on
the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be
impossible to reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and
other technical and security markings, are provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every
registered voter with a provision of additional four (4) ballots per precinct.

Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time
for the printing of official ballots. This is clear from the following deliberations of the Bicameral Conference
Committee:

SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and
national officials?

THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods.

SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a candidate, and there are
many prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic).
THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will not bring about one’s
being a candidate.

SENATOR GONZALES. If that’s a fact, the law cannot change a fact.

THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not
result in that official vacating his position, we can also provide that insofar he is concerned, election period or his
being a candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford
enough time to prepare this machine readable ballots.

So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its
proposal and will agree to the 120-day period provided in the Senate version.

THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.

xxxx

SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately
upon being a candidate?

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec
enough time to print the ballots, this provision does not intend to change the campaign periods as presently, or
rather election periods as presently fixed by existing law.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.

THE CHAIRMAN (REP. TANJUATCO). That’s right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are
talking about the 120-day period before election as the last day of filing a certificate of candidacy, election period
starts 120 days also. So that is election period already. But he will still not be considered as a candidate.

Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his
certificate of candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of
candidacy before 2 January 2004 to make the person filing to become immediately a "candidate" for purposes
other than the printing of ballots. This legislative intent prevents the immediate application of Section 80 of the
Omnibus Election Code to those filing to meet the early deadline. The clear intention of Congress was to preserve
the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet the early
deadline "will still not be considered as a candidate."3 (Emphasis in the original)

Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of
the campaign period. This ground was based on the deliberations of the legislators who explained the intent of the
provisions of RA 8436, which laid the legal framework for an automated election system. There was no express
provision in the original RA 8436 stating that one who files a certificate of candidacy is not a candidate until the
start of the campaign period.

When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law,
realizing that Lanot merely relied on the deliberations of Congress in holding that —
The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA
8436 and that one who files to meet the early deadline "will still not be considered as a candidate." 4 (Emphasis
supplied)

Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the
automated election system would be disqualified or penalized for any partisan political act done before the start of
the campaign period. Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the second
sentence, third paragraph of the amended Section 15 of RA 8436, thus:

xxx

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election. Any person who files his certificate of candidacy within
this period shall only be considered as a candidate at the start of the campaign period for which he filed his
certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only
upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive
office or position, including active members of the armed forces, and officers and employees in government-
owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the
same at the start of the day of the filing of his/her certificate of candidacy. (Boldfacing and underlining supplied)

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third
paragraph of the amended Section 15 of RA 8436, which cannot be annulled by this Court except on the sole
ground of its unconstitutionality. The Decision cannot reverse Lanot without repealing this second sentence,
because to reverse Lanot would mean repealing this second sentence.

The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion of
Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision considers the entire
Section 15 good law. Thus, the Decision is self-contradictory — reversing Lanot but maintaining the
constitutionality of the second sentence, which embodies the Lanot doctrine. In so doing, the Decision is
irreconcilably in conflict with the clear intent and letter of the second sentence, third paragraph, Section 15 of RA
8436, as amended by RA 9369.

In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15 of RA
8436. The original provision in RA 8436 states —

x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of
the aforesaid campaign period, x x x.

In RA 9369, Congress inserted the word "only" so that the first proviso now reads —

x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of
the aforesaid campaign period x x x. (Emphasis supplied)

Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be
committed by a candidate "only" upon the start of the campaign period. This clearly means that before the start of
the campaign period, such election offenses cannot be so committed.

When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do
not consider Penera a candidate for purposes other than the printing of ballots, until the start of the campaign
period. There is absolutely no room for any other interpretation.
We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:

x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read together with
the amended Section 15 of RA 8436. A "‘candidate’ refers to any person aspiring for or seeking an elective public
office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or
coalition of parties." However, it is no longer enough to merely file a certificate of candidacy for a person to be
considered a candidate because "any person who files his certificate of candidacy within [the filing] period shall
only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy."
Any person may thus file a certificate of candidacy on any day within the prescribed period for filing a certificate of
candidacy yet that person shall be considered a candidate, for purposes of determining one’s possible violations of
election laws, only during the campaign period. Indeed, there is no "election campaign" or "partisan political
activity" designed to promote the election or defeat of a particular candidate or candidates to public office simply
because there is no "candidate" to speak of prior to the start of the campaign period. Therefore, despite the filing
of her certificate of candidacy, the law does not consider Penera a candidate at the time of the questioned
motorcade which was conducted a day before the start of the campaign period. x x x

The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her
certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of
printing the ballots. On 29 March 2007, the law still did not consider Penera a candidate for purposes other than
the printing of ballots. Acts committed by Penera prior to 30 March 2007, the date when she became a
"candidate," even if constituting election campaigning or partisan political activities, are not punishable under
Section 80 of the Omnibus Election Code. Such acts are within the realm of a citizen’s protected freedom of
expression. Acts committed by Penera within the campaign period are not covered by Section 80 as Section 80
punishes only acts outside the campaign period.5

The assailed Decision gives a specious reason in explaining away the first proviso in the third paragraph, the
amended Section 15 of RA 8436 that election offenses applicable to candidates take effect only upon the start of
the campaign period. The Decision states that:

x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any unlawful act or
omission applicable to a candidate shall take effect only upon the start of the campaign period," does not mean
that the acts constituting premature campaigning can only be committed, for which the offender may be
disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in said proviso
was it stated that campaigning before the start of the campaign period is lawful, such that the offender may freely
carry out the same with impunity.

As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior
to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus
Election Code as election campaign or partisan political activity, However, only after said person officially becomes
a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning
under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start
of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning.
Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the
undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her
benefit. Compared to the other candidates who are only about to begin their election campaign, a candidate who
had previously engaged in premature campaigning already enjoys an unfair headstart in promoting his/her
candidacy.6(Emphasis supplied)

It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to
expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and
imminent danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that
the act is lawful. Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369,
that political partisan activities before the start of the campaign period are lawful. It is sufficient for Congress to
state that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period." The only inescapable and logical result is that the same acts, if done before the start of the
campaign period, are lawful.

In layman’s language, this means that a candidate is liable for an election offense only for acts done during the
campaign period, not before. The law is clear as daylight — any election offense that may be committed by a
candidate under any election law cannot be committed before the start of the campaign period. In ruling that
Penera is liable for premature campaigning for partisan political acts before the start of the campaigning, the
assailed Decision ignores the clear and express provision of the law.

The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted
only after the start of the campaign period. This is not what the law says. What the law says is "any unlawful act or
omission applicable to a candidate shall take effect only upon the start of the campaign period." The plain meaning
of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when
the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the
campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does
the law state that partisan political acts done by a candidate before the campaign period are temporarily lawful,
but becomes unlawful upon the start of the campaign period. This is clearly not the language of the law. Besides,
such a law as envisioned in the Decision, which defines a criminal act and curtails freedom of expression and
speech, would be void for vagueness.

Congress has laid down the law — a candidate is liable for election offenses only upon the start of the campaign
period. This Court has no power to ignore the clear and express mandate of the law that "any person who files his
certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign
period for which he filed his certificate of candidacy." Neither can this Court turn a blind eye to the express and
clear language of the law that "any unlawful act or omission applicable to a candidate shall take effect only upon
the start of the campaign period."

The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the
Legislature. This Court has no recourse but to apply a law that is as clear, concise and express as the second
sentence, and its immediately succeeding proviso, as written in the third paragraph of Section 15 of RA 8436, as
amended by RA 9369.

WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for Reconsideration. We SET ASIDE the Decision
of this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007
and 30 January 2008 of the COMELEC Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224.
Rosalinda A. Penera shall continue as Mayor of Sta. Monica, Surigao del Norte.

SO ORDERED.

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 Materials2 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. Singson 92 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 Cebu 326 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. 205357 September 2, 2014

GMA NETWORK, INC., Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

SENATOR ALAN PETER "COMPAÑERO" S. CAYETANO,Petitioner-Intervenor.

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

G.R. No. 205374

ABC DEVELOPMENT CORPORATION, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 205592

MANILA BROADCASTING COMPANY, INC. and NEWSOUNDS BROADCASTING NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 205852

KAPISANAN NG MGA BRODKASTER NG PILIPINAS (KBP) and ABS-CBN CORPORATION, Petitioners,

vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x

G.R. No. 206360

RADIO MINDANAO NETWORK, INC., Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION

PERALTA, J.:

"The clash of rights demands a delicate balancing of interests approach which is a 'fundamental postulate of
constitutional law.'"1

Once again the Court is asked to draw a carefully drawn balance in the incessant conflicts between rights and
regulations, liberties and limitations, and competing demands of the different segments of society. Here, we are
confronted with the need to strike a workable and viable equilibrium between a constitutional mandate to
maintain free, orderly, honest, peaceful and credible elections, together with the aim of ensuring equal
opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates,2 on one hand, and the imperatives of a republican and
democratic state,3 together with its guaranteed rights of suffrage,4 freedom of speech and of the press, 5 and the
people's right to information,6 on the other.

In a nutshell, the present petitions may be seen as in search of the answer to the question - how does the Charter
of a republican and democratic State achieve a viable and acceptable balance between liberty, without which,
government becomes an unbearable tyrant, and authority, without which, society becomes an intolerable and
dangerous arrangement?

Assailed in these petitions are certain regulations promulgated by the Commission on Elections (COMELEC) relative
to the conduct of the 2013 national and local elections dealing with political advertisements. Specifically, the
petitions question the constitutionality of the limitations placed on aggregate airtime allowed to candidates and
political parties, as well as the requirements incident thereto, such as the need to report the same, and the
sanctions imposed for violations.

The five (5) petitions before the Court put in issue the alleged unconstitutionality of Section 9 (a) of COMELEC
Resolution No. 9615 (Resolution) limiting the broadcast and radio advertisements of candidates and political
parties for national election positions to an aggregate total of one hundred twenty (120) minutes and one hundred
eighty (180) minutes, respectively. They contend that such restrictive regulation on allowable broadcast time
violates freedom of the press, impairs the people's right to suffrage as well as their right to information relative to
the exercise of their right to choose who to elect during the forth coming elections.

The heart of the controversy revolves upon the proper interpretation of the limitation on the number of minutes
that candidates may use for television and radio advertisements, as provided in Section 6 of Republic Act No. 9006
(R.A. No. 9006), otherwise known as the Fair Election Act. Pertinent portions of said provision state, thus:

Sec. 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:

xxxx
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.

During the previous elections of May 14, 2007 and May 10, 2010, COMELEC issued Resolutions implementing and
interpreting Section 6 of R.A. No. 9006, regarding airtime limitations, to mean that a candidate is entitled to the
aforestated number of minutes "per station."7 For the May 2013 elections, however, respondent COMELEC
promulgated Resolution No. 9615 dated January 15, 2013, changing the interpretation of said candidates' and
political parties' airtime limitation for political campaigns or advertisements from a "per station" basis, to a "total
aggregate" basis.

Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation (ABC), GMA Network, Incorporated (
GMA), Manila Broadcasting Company, Inc. (MBC), Newsounds Broadcasting Network, Inc. (NBN), and Radio
Mindanao Network, Inc. (RMN) are owners/operators of radio and television networks in the Philippines, while
petitioner Kapisanan ng mga Brodkaster ng Pilipinas (KBP) is the national organization of broadcasting companies
in the Philippines representing operators of radio and television stations and said stations themselves. They sent
their respective letters to the COMELEC questioning the provisions of the aforementioned Resolution, thus, the
COMELEC held public hearings. Thereafter, on February 1, 2013, respondent issued Resolution No. 9631 amending
provisions of Resolution No. 9615. Nevertheless, petitioners still found the provisions objectionable and
oppressive, hence, the present petitions.

All of the petitioners assail the following provisions of the Resolution:

a) Section 7 (d),8 which provides for a penalty of suspension or revocation of an offender's franchise or
permit, imposes criminal liability against broadcasting entities and their officers in the event they sell
airtime in excess of the size, duration, or frequency authorized in the new rules;

b) Section 9 (a),9 which provides for an "aggregate total" airtime instead of the previous "per station"
airtime for political campaigns or dvertisements, and also required prior COMELEC approval for
candidates' television and radio guestings and appearances; and

c) Section 14,10 which provides for a candidate's "right to reply."

In addition, petitioner ABC also questions Section 1 (4) 11 thereof, which defines the term "political advertisement"
or "election propaganda," while petitioner GMA further assails Section 35, 12 which states that any violation of said
Rules shall constitute an election offense.

On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor) filed a Motion for Leave to Intervene
and to File and Admit the Petition-in-Intervention, which was granted by the Court per its Resolution dated March
19, 2013. Petitioner-Intervenor also assails Section 9 (a) of the Resolution changing the interpretation of
candidates' and political parties' airtime limitation for political campaigns or advertisements from a "per station"
basis, to a "total aggregate" basis. Petitioners allege that Resolutions No. 9615 and 9631, amending the earlier
Resolution, are unconstitutional and issued without jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction, for the reasons set forth hereunder.

Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very restrictive aggregate airtime limit
and a vague meaning for a proper computation of "aggregate total" airtime, and violates the equal protection
guarantee, thereby defeating the intent and purpose of R.A. No. 9006.

Petitioners contend that Section 9 (a), which imposes a notice requirement, is vague and infringes on the
constitutionally protected freedom of speech, of the press and of expression, and on the right of people to be
informed on matters of public concern

Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an unreasonable and almost impossible burden
on broadcast mass media of monitoring a candidate's or political party's aggregate airtime, otherwise, it may incur
administrative and criminal liability.

Further, petitioners claim that Section 7 (d) is null and void for unlawfully criminalizing acts not prohibited and
penalized as criminal offenses by R.A. No. 9006.

Section 14 of Resolution No. 9615, providing for a candidate's or political party's "right to reply," is likewise
assailed to be unconstitutional for being an improper exercise of the COMELEC's regulatory powers; for
constituting prior restraint and infringing petitioners' freedom of expression, speech and the press; and for being
violative of the equal protection guarantee. In addition to the foregoing, petitioner GMA further argues that the
Resolution was promulgated without public consultations, in violation of petitioners' right to due process.
Petitioner ABC also avers that the Resolution's definition of the terms "political advertisement" and "election
propaganda" suffers from overbreadth, thereby producing a "chilling effect," constituting prior restraint.

On the other hand, respondent posits in its Comment and Opposition 13 dated March 8, 2013, that the petition
should be denied based on the following reasons:

Respondent contends that the remedies of certiorari and prohibition are not available to petitioners, because the
writ of certiorari is only available against the COMELEC's adjudicatory or quasi-judicial powers, while the writ of
prohibition only lies against the exercise of judicial, quasijudicial or ministerial functions. Said writs do not lie
against the COMELEC's administrative or rule-making powers.

Respondent likewise alleges that petitioners do not have locus standi, as the constitutional rights and freedoms
they enumerate are not personal to them, rather, they belong to candidates, political parties and the Filipino
electorate in general, as the limitations are imposed on candidates, not on media outlets. It argues that
petitioners' alleged risk of exposure to criminal liability is insufficient to give them legal standing as said "fear of
injury" is highly speculative and contingent on a future act.

Respondent then parries petitioners' attack on the alleged infirmities of the Resolution's provisions.

Respondent maintains that the per candidate rule or total aggregate airtime limit is in accordance with R.A. No.
9006 as this would truly give life to the constitutional objective to equalize access to media during elections. It sees
this as a more effective way of levelling the playing field between candidates/political parties with enormous
resources and those without much. Moreover, the COMELEC's issuance of the assailed Resolution is pursuant to
Section 4, Article IX (C) of the Constitution which vests on the COMELEC the power to supervise and regulate,
during election periods, transportation and other public utilities, as well as mass media, to wit:

Sec. 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, and 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.

This being the case, then the Resolutions cannot be said to have been issued with grave abuse of discretion
amounting to lack of jurisdiction.

Next, respondent claims that the provisions are not vague because the assailed Resolutions have given clear and
adequate mechanisms to protect broadcast stations from potential liability arising from a candidate's or party's
violation of airtime limits by putting in the proviso that the station "may require buyer to warrant under oath that
such purchase [of airtime] is not in excess of size, duration or frequency authorized by law or these rules."
Furthermore, words should be understood in the sense that they have in common usage, and should be given their
ordinary meaning. Thus, in the provision for the right to reply, "charges" against candidates or parties must be
understood in the ordinary sense, referring to accusations or criticisms.

Respondent also sees no prior restraint in the provisions requiring notice to the COMELEC for appearances or
guestings of candidates in bona fide news broadcasts. It points out that the fact that notice may be given 24 hours
after first broadcast only proves that the mechanism is for monitoring purposes only, not for censorship. Further,
respondent argues, that for there to be prior restraint, official governmental restrictions on the press or other
forms of expression must be done in advance of actual publication or dissemination. Moreover, petitioners are
only required to inform the COMELEC of candidates'/parties' guestings, but there is no regulation as to the content
of the news or the expressions in news interviews or news documentaries. Respondent then emphasized that the
Supreme Court has held that freedom of speech and the press may be limited in light of the duty of the COMELEC
to ensure equal access to opportunities for public service.

With regard to the right to reply provision, respondent also does not consider it as restrictive of the airing of bona
fide news broadcasts. More importantly, it stressed, the right to reply is enshrined in the Constitution, and the
assailed Resolutions provide that said right can only be had after going through administrative due process. The
provision was also merely lifted from Section 10 of R.A. No. 9006, hence, petitioner ABC is actually attacking the
constitutionality of R.A. No. 9006, which cannot be done through a collateral attack.

Next, respondent counters that there is no merit to ABC's claim that the Resolutions' definition of "political
advertisement" or "election propaganda" suffers from overbreadth, as the extent or scope of what falls under said
terms is clearly stated in Section 1 (4) of Resolution No. 9615.

It is also respondent's view that the nationwide aggregate total airtime does not violate the equal protection
clause, because it does not make any substantial distinctions between national and regional and/or local broadcast
stations, and even without the aggregate total airtime rule, candidates and parties are likely to be more inclined to
advertise in national broadcast stations. Respondent likewise sees no merit in petitioners' claim that the
Resolutions amount to taking of private property without just compensation. Respondent emphasizes that radio
and television broadcasting companies do not own the airwaves and frequencies through which they transmit
broadcast signals; they are merely given the temporary privilege to use the same. Since they are merely enjoying a
privilege, the same may be reasonably burdened with some form of public service, in this case, to provide
candidates with the opportunity to reply to charges aired against them.

Lastly, respondent contends that the public consultation requirement does not apply to constitutional
commissions such as the COMELEC, pursuant to Section 1, Chapter I, Book VII of the Administrative Code of 1987.
Indeed, Section 9, Chapter II, Book VII of said Code provides, thus:
 Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far as practicable,
publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their
views prior to the adoption of any rule.

However, Section 1, Chapter 1, Book VII of said Code clearly provides:

Section 1. Scope. -This Book shall be applicable to all agencies as defined in the next succeeding section,
except the Congress, the Judiciary, the Constitutional Commissions, military establishments in all matters
relating exclusively to Armed Forces personnel, the Board of Pardons and Parole, and state universities
and colleges.

Nevertheless, even if public participation is not required, respondent still conducted a meeting with
representatives of the KBP and various media outfits on December 26, 2012, almost a month before the issuance
of Resolution No. 9615.

On April 2, 2013, petitioner GMA filed its Reply,14 where it advanced the following counter-arguments:

According to GMA, a petition for certiorari is the proper remedy to question the herein assailed Resolutions, which
should be considered as a "decision, order or ruling of the Commission" as mentioned in Section 1, Rule 37 of the
COMELEC Rules of Procedure which provides:

Section 1. Petition for Certiorari,· and Time to File. - Unless otherwise provided by law, or by any specific provisions
in these Rules, any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari
by the aggrieved party within thirty (30) days from its promulgation.

GMA further stressed that this case involves national interest, and the urgency of the matter justifies its resort to
the remedy of a petition for certiorari.

Therefore, GMA disagrees with the COMELEC's position that the proper remedy is a petition for declaratory relief
because such action only asks the court to make a proper interpretation of the rights of parties under a statute or
regulation. Such a petition does not nullify the assailed statute or regulation, or grant injunctive relief, which
petitioners are praying for in their petition. Thus, GMA maintains that a petition for certiorari is the proper
remedy.

GMA further denies that it is making a collateral attack on the Fair Election Act, as it is not attacking said law. GMA
points out that it has stated in its petition that the law in fact allows the sale or donation of airtime for political
advertisements and does not impose criminal liability against radio and television stations. What it is assailing is
the COMELEC's erroneous interpretation of the law's provisions by declaring such sale and/or donation of airtime
unlawful, which is contrary to the purpose of the Fair Election Act.

GMA then claims that it has legal standing to bring the present suit because:

x x x First, it has personally suffered a threatened injury in the form of risk of criminal liability because of the
alleged unconstitutional and unlawful conduct of respondent COMELEC in expanding what was provided for in R.A.
No. 9006. Second, the injury is traceable to the challenged action of respondent COMELEC, that is, the issuance of
the assailed Resolutions. Third, the injury is likely to be redressed by the remedy sought in petitioner GMA's
Petition, among others, for the Honorable Court to nullify the challenged pertinent provisions of the assailed
Resolutions.15

On substantive issues, GMA first argues that the questioned Resolutions are contrary to the objective and purpose
of the Fair Election Act. It points out that the Fair Election Act even repealed the political ad ban found in the
earlier law, R.A. No. 6646. The Fair Election Act also speaks of "equal opportunity" and "equal access,'' but said law
never mentioned equalizing the economic station of the rich and the poor, as a declared policy. Furthermore, in its
opinion, the supposed correlation between candidates' expenditures for TV ads and actually winning the elections,
is a mere illusion, as there are other various factors responsible for a candidate's winning the election. GMA then
cites portions of the deliberations of the Bicameral Conference Committee on the bills that led to the enactment of
the Fair Election Act, and alleges that this shows the legislative intent that airtime allocation should be on a "per
station" basis. Thus, GMA claims it was arbitrary and a grave abuse of discretion for the COMELEC to issue the
present Resolutions imposing airtime limitations on an "aggregate total" basis.

It is likewise insisted by GMA that the assailed Resolutions impose an unconstitutional burden on them, because
their failure to strictly monitor the duration of total airtime that each candidate has purchased even from other
stations would expose their officials to criminal liability and risk losing the station's good reputation and goodwill,
as well as its franchise. It argues that the wordings of the Resolutions belie the COMELEC's claim that petitioners
would only incur liability if they "knowingly" sell airtime beyond the limits imposed by the Resolutions, because the
element of knowledge is clearly absent from the provisions thereof. This makes the provisions have the nature of
malum prohibitum.

Next, GMA also says that the application of the aggregate airtime limit constitutes prior restraint and is
unconstitutional, opining that "[t]he reviewing power of respondent COMELEC and its sole judgment of a news
event as a political advertisement are so pervasive under the assailed Resolutions, and provoke the distastes or
chilling effect of prior restraint"16 as even a legitimate exercise of a constitutional right might expose it to legal
sanction. Thus, the governmental interest of leveling the playing field between rich and poor candidates cannot
justify the restriction on the freedoms of expression, speech and of the press.

On the issue of lack of prior public participation, GMA cites Section 82 of the Omnibus Election Code, pertinent
portions of which provide, thus:

Section 82. Lawful election propaganda. - Lawful election propaganda shall include:

xxxx

All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due
notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be
heard: Provided, That the Commission's authorization shall be published in two newspapers of general circulation
throughout the nation for at least twice within one week after the authorization has been granted.

There having been no prior public consultation held, GMA contends that the COMELEC is guilty of depriving
petitioners of its right to due process of law.

GMA then concludes that it is also entitled to a temporary restraining order, because the implementation of the
Resolutions in question will cause grave and irreparable damage to it by disrupting and emasculating its mandate
to provide television and radio services to the public, and by exposing it to the risk of incurring criminal and
administrative liability by requiring it to perform the impossible task of surveillance and monitoring, or the
broadcasts of other radio and television stations.

Thereafter, on April 4, 2013, the COMELEC, through the Office of the Solicitor General (OSG), filed a Supplemental
Comment and Opposition17 where it further expounded on the legislative intent behind the Fair Election Act, also
quoting portions of the deliberations of the Bicameral Conference Committee, allegedly adopting the Senate Bill
version setting the computation of airtime limits on a per candidate, not per station, basis. Thus, as enacted into
law, the wordings of Section 6 of the Fair Election Act shows that the airtime limit is imposed on a per candidate
basis, rather than on a per station basis. Furthermore, the COMELEC states that petitioner intervenor Senator
Cayetano is wrong in arguing that there should be empirical data to support the need to change the computation
of airtime limits from a per station basis to a per candidate basis, because nothing in law obligates the COMELEC to
support its Resolutions with empirical data, as said airtime limit was a policy decision dictated by the legislature
itself, which had the necessary empirical and other data upon which to base said policy decision.

The COMELEC then points out that Section 2 (7),18 Article IX (C) of the Constitution empowers it to recommend to
Congress effective measures to minimize election spending and in furtherance of such constitutional power, the
COMELEC issued the questioned Resolutions, in faithful implementation of the legislative intent and objectives of
the Fair Election Act.

The COMELEC also dismisses Senator Cayetano's fears that unauthorized or inadvertent inclusion of his name,
initial, image, brand, logo, insignia and/or symbol in tandem advertisements will be charged against his airtime
limits by pointing out that what will be counted against a candidate's airtime and expenditures are those
advertisements that have been paid for or donated to them to which the candidate has given consent.

With regard to the attack that the total aggregate airtime limit constitutes prior restraint or undue abridgement of
the freedom of speech and expression, the COMELEC counters that "the Resolutions enjoy constitutional and
congressional imprimatur. It is the Constitution itself that imposes the restriction on the freedoms of speech and
expression, during election period, to promote an important and significant governmental interest, which is to
equalize, as far as practicable, the situation of rich and poor candidates by preventing the former from enjoying
the undue advantage offered by huge campaign 'war chests."'19

Lastly, the COMELEC also emphasizes that there is no impairment of the people's right to information on matters
of public concern, because in this case, the COMELEC is not withholding access to any public record.

On April 16, 2013, this Court issued a Temporary Restraining Order20 (TRO) in view of the urgency involved and to
prevent irreparable injury that may be caused to the petitioners if respondent COMELEC is not enjoined from
implementing Resolution No. 9615.

On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary Restraining Order and Motion for Early
Resolution of the Consolidated Petitions.21

On May 8, 2013, petitioners ABS-CBN and the KBP filed its Opposition/Comment22 to the said Motion. Not long
after, ABC followed suit and filed its own Opposition to the Motion 23 filed by the respondent.

In the interim, respondent filed a Second Supplemental Comment and Opposition24 dated April 8, 2013.

In the Second Supplemental Comment and Opposition, respondent delved on points which were not previously
discussed in its earlier Comment and Supplemental Comment, particularly those raised in the petition filed by
petitioner ABS-CBN and KBP.

Respondent maintains that certiorari in not the proper remedy to question the Constitutionality of the assailed
Resolutions and that petitioners ABS-CBN and KBP have no locus standi to file the present petition.

Respondent posits that contrary to the contention of petitioners, the legislative history of R.A. No. 9006
conclusively shows that congress intended the airtime limits to be computed on a "per candidate" and not on a
"per station" basis. In addition, the legal duty of monitoring lies with the COMELEC. Broadcast stations are merely
required to submit certain documents to aid the COMELEC in ensuring that candidates are not sold airtime in
excess of the allowed limits.
Also, as discussed in the earlier Comment, the prior notice requirement is a mechanism designed to inform the
COMELEC of the appearances or guesting of candidates in bona fide news broadcasts. It is for monitoring purposes
only, not censorship. It does not control the subject matter of news broadcasts in anyway. Neither does it prevent
media outlets from covering candidates in news interviews, news events, and news documentaries, nor prevent
the candidates from appearing thereon.

As for the right to reply, respondent insists that the right to reply provision cannot be considered a prior restraint
on the freedoms of expression, speech and the press, as it does not in any way restrict the airing of bona fide new
broadcasts. Media entities are free to report any news event, even if it should turn out to be unfavourable to a
candidate or party. The assailed Resolutions merely give the candidate or party the right to reply to such charges
published or aired against them in news broadcasts.

Moreover, respondent contends that the imposition of the penalty of suspension and revocation of franchise or
permit for the sale or donation of airtime beyond the allowable limits is sanctioned by the Omnibus Election Code.

Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013, the Court issued a Resolution 25 consolidating
the case with the rest of the petitions and requiring respondent to comment thereon.

On October 10, 2013, respondent filed its Third Supplemental Comment and Opposition. 26 Therein, respondent
stated that the petition filed by RMN repeats the issues that were raised in the previous petitions. Respondent,
likewise, reiterated its arguments that certiorari in not the proper remedy to question the assailed resolutions and
that RMN has no locus standi to file the present petition. Respondent maintains that the arguments raised by
RMN, like those raised by the other petitioners are without merit and that RMN is not entitled to the injunctive
relief sought.

The petition is partly meritorious.

At the outset, although the subject of the present petit10ns are Resolutions promulgated by the COMELEC relative
to the conduct of the 2013 national and local elections, nevertheless the issues raised by the petitioners have not
been rendered moot and academic by the conclusion of the 2013 elections. Considering that the matters elevated
to the Court for resolution are susceptible to repetition in the conduct of future electoral exercises, these issues
will be resolved in the present action.

PROCEDURAL ASPECTS

Matters of procedure and technicalities normally take a backseat when issues of substantial and transcendental
importance are presented before the Court. So the Court does again in this particular case.

Proper Remedy

Respondent claims that certiorari and prohibition are not the proper remedies that petitioners have taken to
question the assailed Resolutions of the COMELEC. Technically, respondent may have a point. However,
considering the very important and pivotal issues raised, and the limited time, such technicality should not deter
the Court from having to make the final and definitive pronouncement that everyone else depends for
enlightenment and guidance. "[T]his Court has in the past seen fit to step in and resolve petitions despite their
being the subject of an improper remedy, in view of the public importance of the tile issues raised therein. 27

It has been in the past, we do so again.

Locus Standi
Every time a constitutional issue is brought before the Court, the issue of locus standi is raised to question the
personality of the parties invoking the Court's jurisdiction. The Court has routinely made reference to a liberalized
stance when it comes to petitions raising issues of transcendental importance to the country. Invariably, after
some discussions, the Court would eventually grant standing.28

In this particular case, respondent also questions the standing of the petitioners. We rule for the petitioners. For
petitioner-intervenor Senator Cayetano, he undoubtedly has standing since he is a candidate whose ability to
reach out to the electorate is impacted by the assailed Resolutions.

For the broadcast companies, they similarly have the standing in view of the direct injury they may suffer relative
to their ability to carry out their tasks of disseminating information because of the burdens imposed on them.
Nevertheless, even in regard to the broadcast companies invoking the injury that may be caused to their
customers or the public - those who buy advertisements and the people who rely on their broadcasts - what the
Court said in White Light Corporation v. City of Manila29 may dispose of the question. In that case, there was an
issue as to whether owners of establishments offering "wash-up" rates may have the requisite standing on behalf
of their patrons' equal protection claims relative to an ordinance of the City of Manila which prohibited "short-
time" or "wash-up" accommodation in motels and similar establishments. The Court essentially condensed the
issue in this manner: "[T]he crux of the matter is whether or not these establishments have the requisite standing
to plead for protection of their patrons' equal protection rights."30 The Court then went on to hold:

Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from
the law or action challenged to support that party's participation in the case. More importantly, the doctrine of
standing is built on the principle of separation of powers, sparing as it does unnecessary interference or
invalidation by the judicial branch of the actions rendered by its co-equal branches of government.

The requirement of standing is a core component of the judicial system derived directly from the Constitution. The
constitutional component of standing doctrine incorporates concepts which concededly are not susceptible of
precise definition. In this jurisdiction, the extancy of "a direct and personal interest" presents the most obvious
cause, as well as the standard test for a petitioner's standing. In a similar vein, the United States Supreme Court
reviewed and elaborated on the meaning of the three constitutional standing requirements of injury, causation,
and redressability in Allen v. Wright.

Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer
suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance.

For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine
are appropriate. x x x

xxxx

American jurisprudence is replete with examples where parties-ininterest were allowed standing to advocate or
invoke the fundamental due process or equal protection claims of other persons or classes of persons injured by
state action. x x x

xxxx

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the
rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government
action are in effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the
freedom of speech, the overbreadth doctrine applies when a statute needlessly restrains even constitutionally
guaranteed rights. In this case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right
to liberty of their clients. We can see that based on the allegations in the petition, the Ordinance suffers from
overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize
their establishments for a "wash-rate" time frame.31

If in regard to commercial undertakings, the owners may have the right to assert a constitutional right of their
clients, with more reason should establishments which publish and broadcast have the standing to assert the
constitutional freedom of speech of candidates and of the right to information of the public, not to speak of their
own freedom of the press. So, we uphold the standing of petitioners on that basis.

SUBSTANTIVE ASPECTS

Aggregate Time Limits

COMELEC Resolution No. 9615 introduced a radical departure from the previous COMELEC resolutions relative to
the airtime limitations on political advertisements. This essentially consists in computing the airtime on an
aggregate basis involving all the media of broadcast communications compared to the past where it was done on a
per station basis. Thus, it becomes immediately obvious that there was effected a drastic reduction of the
allowable minutes within which candidates and political parties would be able to campaign through the air. The
question is accordingly whether this is within the power of the COMELEC to do or not. The Court holds that it is not
within the power of the COMELEC to do so.

a. Past elections and airtime limits

The authority of the COMELEC to impose airtime limits directly flows from the Fair Election Act (R.A. No. 9006
[2001])32 - one hundred (120) minutes of television advertisement and one-hundred· eighty (180) minutes for radio
advertisement. For the 2004 elections, the respondent COMELEC promulgated Resolution No.
652033 implementing the airtime limits by applying said limitation on a per station basis.34 Such manner of
determining airtime limits was likewise adopted for the 2007 elections, through Resolution No. 7767.35 In the 2010
elections, under Resolution No. 8758,36 the same was again adopted. But for the 2013 elections, the COMELEC,
through Resolution No. 9615, as amended by Resolution No. 9631, chose to aggregate the total broadcast time
among the different broadcast media, thus: Section 9. Requirements and/or Limitations on the Use of Election
Propaganda through Mass Media. - All parties and bona fide candidates shall have equal access to media time and
space for their election propaganda during the campaign period subject to the following requirements and/or
limitations:

a. Broadcast Election Propaganda

The duration of an air time that a candidate, or party may use for their broadcast advertisements or election
propaganda shall be, as follows:

For Candidates/Registered
Political parties for a National
Elective Position
Not more than an aggregate total of one hundred (120)
minutes of television advertising, whether appearing on
national, regional, or local, free or cable television, and
one hundred eighty (180) minutes of radio advertising,
whether airing on national, regional, or local radio,
whether by purchase or donation

For Candidates/Registered Not more than an aggregate total of sixty (60) minutes
of television advertising, whether appearing on national,
 Political parties for a Local regional, or local, free or cable television, and ninety
Elective Position (90) minutes of radio advertising, whether airing on
national, regional, or local radio, whether by purchase or
donation.

In cases where two or more candidates or parties whose names, initials, images, brands, logos, insignias, color
motifs, symbols, or forms of graphical representations are displayed, exhibited, used, or mentioned together in the
broadcast election propaganda or advertisements, the length of time during which they appear or are being
mentioned or promoted will be counted against the airtime limits allotted for the said candidates or parties and
the cost of the said advertisement will likewise be considered as their expenditures, regardless of whoever paid for
the advertisements or to whom the said advertisements were donated.

x x x x37

Corollarily, petitioner-intervenor, Senator Cayetano, alleges:

6.15. The change in the implementation of Section 6 of R.A. 9006 was undertaken by respondent Comelec without
consultation with the candidates for the 2013 elections, affected parties such as media organizations, as well as
the general public. Worse, said change was put into effect without explaining the basis therefor and without
showing any data in support of such change. Respondent Comelec merely maintained that such action "is meant to
level the playing field between the moneyed candidates and those who don i have enough resources," without
particularizing the empirical data upon which such a sweeping statement was based. This was evident in the public
hearing held on 31 January 2013 where petitioner GMA, thru counsel, explained that no empirical data on he
excesses or abuses of broadcast media were brought to the attention of the public by respondent Comelec, or
even stated in the Comelec

Resolution No. 9615. Thus –

xxxx

Chairman Brillantes

So if we can regulate and amplify, we may amplify meaning we can expand if we want to. But the authority of the
Commission is if we do not want to amplify and we think that the 120 or 180 is okay we cannot be compelled to
amplify. We think that 120 or 180 is okay, is enough.

Atty. Lucila

But with due respect Your Honor, I think the basis of the resolution is found in the law and the law has been
enterpreted (sic) before in 2010 to be 120 per station, so why the change, your Honor?

Chairman Brillantes

No, the change is not there, the right to amplify is with the Commission on Elections. Nobody can encroach in our
right to amplify. Now, if in 2010 the Commission felt that per station or per network is the rule then that is the
prerogative of the Commission then they could amplify it to expand it. If the current Commission feels that 120 is
enough for the particular medium like TV and 180 for radio, that is our prerogative. How can you encroach and
what is unconstitutional about it?

Atty. Lucila
We are not questioning the authority of the Honorable Commission to regulate Your Honor, we are just raising our
concern on the manner of regulation because as it is right now, there is a changing mode or sentiments of the
Commission and the public has the right to know, was there rampant overspending on political ads in 2010, we
were not informed Your Honor. Was there abuse of the media in 2010, we were not informed Your Honor. So we
would like to know what is the basis of the sudden change in this limitation, Your Honor .. And law must have a
consistent interpretation that [is]our position, Your Honor.

Chairman Brillantes

But my initial interpretation, this is personal to this representation counsel, is that if the Constitution allows us to
regulate and then it gives us the prerogative to amplify then the prerogative to amplify you should leave this to the
discretion of the Commission. Which means if previous Commissions felt that expanding it should be part of our
authority that was a valid exercise if we reduce it to what is provided for by law which is 120-180 per medium, TV,
radio, that is also within the law and that is still within our prerogative as provided for by the Constitution. If you
say we have to expose the candidates to the public then I think the reaction should come, the negative reaction
should come from the candidates not from the media, unless you have some interest to protect directly. Is there
any interest on the part of the media to expand it?

Atty. Lucila

Well, our interest Your Honor is to participate in this election Your Honor and we have been constantly (sic) as the
resolution says and even in the part involved because you will be getting some affirmative action time coming
from the media itself and Comelec time coming from the media itself. So we could like to be both involved in the
whole process of the exercise of the freedom of suffrage Your Honor.

Chairman Brillantes

Yes, but the very essence of the Constitutional provision as well as the provision of 9006 is actually to level the
playing field. That should be the paramount consideration. If we allow everybody to make use of all their time and
all radio time and TV time then there will be practically unlimited use of the mass media ....

Atty. Lucila

Was there in 2010 Your Honor, was there any data to support that there was an unlimited and abuse of a (sic)
political ads in the mass media that became the basis of this change in interpretation Your Honor? We would like
to know about it Your Honor.

Chairman Brillantes

What do you think there was no abuse in 201 O?

Atty. Lucila

As far as the network is concern, there was none Your Honor.

Chairman Brillantes

There was none ..... .

Atty. Lucila
I'm sorry, Your Honor ...

Chairman Brillantes

Yes, there was no abuse, okay, but there was some advantage given to those who took ... who had the more
moneyed candidates took advantage of it.

Atty. Lucila

But that is the fact in life, Your Honor there are poor candidates, there are rich candidates. No amount of law or
regulation can even level the playing filed (sic) as far as the economic station in life of the candidates are concern
(sic) our Honor.38

Given the foregoing observations about what happened during the hearing, Petitioner-Intervenor went on to
allege that:

6.16. Without any empirical data upon which to base the regulatory measures in Section 9 (a), respondent
Comelec arbitrarily changed the rule from per station basis to aggregate airtime basis. Indeed, no credence should
be given to the cliched explanation of respondent Comelec (i.e. leveling the playing field) in its published
statements which in itself is a mere reiteration of the rationale for the enactment of the political ad ban of
Republic Act No. 6646, and which has likewise been foisted when said political ad ban was lifted by R.A. 9006. 39

From the foregoing, it does appear that the COMELEC did not have any other basis for coming up with a new
manner of determining allowable time limits except its own idea as to what should be the maximum number of
minutes based on its exercise of discretion as to how to level the playing field. The same could be encapsulized in
the remark of the COMELEC Chairman that "if the Constitution allows us to regulate and then it gives us the
prerogative to amplify then the prerogative to amplify you should leave this to the discretion of the
Commission."40

The Court could not agree with what appears as a nonchalant exercise of discretion, as expounded anon.

b. COMELEC is duty bound to come up with reasonable basis for changing the interpretation and implementation
of the airtime limits

There is no question that the COMELEC is the office constitutionally and statutorily authorized to enforce election
laws but it cannot exercise its powers without limitations - or reasonable basis. It could not simply adopt measures
or regulations just because it feels that it is the right thing to do, in so far as it might be concerned. It does have
discretion, but such discretion is something that must be exercised within the bounds and intent of the law. The
COMELEC is not free to simply change the rules especially if it has consistently interpreted a legal provision in a
particular manner in the past. If ever it has to change the rules, the same must be properly explained with
sufficient basis.

Based on the transcripts of the hearing conducted by the COMELEC after it had already promulgated the
Resolution, the respondent did not fully explain or justify the change in computing the airtime allowed candidates
and political parties, except to make reference to the need to "level the playing field." If the "per station" basis was
deemed enough to comply with that objective in the past, why should it now be suddenly inadequate? And, the
short answer to that from the respondent, in a manner which smacks of overbearing exercise of discretion, is that
it is within the discretion of the COMELEC. As quoted in the transcript, "the right to amplify is with the COMELEC.
Nobody can encroach in our right to amplify. Now, if in 2010 the Commission felt that per station or per network is
the rule then that is the prerogative of the Commission then they could amplify it to expand it. If the current
Commission feels that 120 is enough for the particular medium like TV and 180 for radio, that is our prerogative.
How can you encroach and what is unconstitutional about it?"41

There is something basically wrong with that manner of explaining changes in administrative rules. For one, it does
not really provide a good basis for change. For another, those affected by such rules must be given a better
explanation why the previous rules are no longer good enough. As the Court has said in one case:

While stability in the law, particularly in the business field, is desirable, there is no demand that the NTC slavishly
follow precedent. However, we think it essential, for the sake of clarity and intellectual honesty, that if an
administrative agency decides inconsistently with previous action, that it explain thoroughly why a different result
is warranted, or ?f need be, why the previous standards should no longer apply or should be overturned. Such
explanation is warranted in order to sufficiently establish a decision as having rational basis. Any inconsistent
decision lacking thorough, ratiocination in support may be struck down as being arbitrary. And any decision with
absolutely nothing to support it is a nullity.42

What the COMELEC came up with does not measure up to that level of requirement and accountability which
elevates administrative rules to the level of respectability and acceptability. Those governed by administrative
regulations are entitled to a reasonable and rational basis for any changes in those rules by which they are
supposed to live by, especially if there is a radical departure from the previous ones.

c. The COMELEC went beyond the authority granted it by the law in adopting "aggregate" basis in the
determination of allowable airtime

The law, which is the basis of the regulation subject of these petitions, pertinently provides:

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; x x x

The law, on its face, does not justify a conclusion that the maximum allowable airtime should be based on the
totality of possible broadcast in all television or radio stations. Senator Cayetano has called our attention to the
legislative intent relative to the airtime allowed - that it should be on a "per station" basis.43

This is further buttressed by the fact that the Fair Election Act (R.A. No. 9006) actually repealed the previous
provision, Section ll(b) of Republic Act No. 6646,44 which prohibited direct political advertisements -the so-called
"political ad ban." If under the previous law, no candidate was allowed to directly buy or procure on his own his
broadcast or print campaign advertisements, and that he must get it through the COMELEC Time or COMELEC
Space, R.A. No. 9006 relieved him or her from that restriction and allowed him or her to broadcast time or print
space subject to the limitations set out in the law. Congress, in enacting R.A. No. 9006, felt that the previous law
was not an effective and efficient way of giving voice to the people. Noting the debilitating effects of the previous
law on the right of suffrage and Philippine democracy, Congress decided to repeal such rule by enacting the Fair
Election Act.

In regard to the enactment of the new law, taken in the context of the restrictive nature of the previous law, the
sponsorship speech of Senator Raul Roco is enlightening:
The bill seeks to repeal Section 85 of the Omnibus Election Code and Sections 10 and 11 of RA 6646. In view of the
importance of their appeal in connection with the thrusts of the bill, I hereby quote these sections in full:

"SEC. 85. Prohibited forms of election propaganda. - It shall be unlawful:

"(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill, or printed matter urging
voters to vote for or against any candidate unless they hear the names and addresses of the printed and
payor as required in Section 84 hereof;

"(b) To erect, put up, make use of, attach, float or display any billboard, tinplate-poster, balloons and the
like, of whatever size, shape, form or kind, advertising for or against any candidate or political party;

"(c) To purchase, manufacture, request, distribute or accept electoral propaganda gadgets, such as pens,
lighters, fans of whatever nature, flashlights, athletic goods or materials, wallets, shirts, hats, bandannas,
matches, cigarettes and the like, except that campaign supporters accompanying a candidate shall be
allowed to wear hats and/or shirts or T-shirts advertising a candidate;

"(d) To show or display publicly any advertisement or propaganda for or against any candidate by means
of cinematography, audio-visual units or other screen projections except telecasts which may be allowed
as hereinafter provided; and

"(e) For any radio broadcasting or television station to sell or give free of charge airtime for campaign and
other political purposes except as authorized in this Code under the rules and regulations promulgated by
the Commission pursuant thereto;

"Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or tom down by the
representative of the Commission upon specific authority of the Commission." "SEC. 10. Common Poster Areas. -
The Commission shall designate common poster areas in strategic public places such as markets, barangay centers
and the like wherein candidates can post, display or exhibit election propaganda to announce or further their
candidacy.

"Whenever feasible, common billboards may be installed by the Commission and/or non-partisan private or civic
organizations which the Commission may authorize whenever available, after due notice and hearing, in strategic
areas where it may readily be seen or read, with the heaviest pedestrian and/or vehicular traffic in the city or
municipality.

The space in such common poster areas or billboards shall be allocated free of charge, if feasible, equitably and
impartially among the candidates in the province, city or municipality. "SEC. 11. Prohibite,d Forms of Election
Propaganda. - In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg.
881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or puolicly exhibit any election propaganda
in any place, whether private or public, except in common poster areas and/or billboards provided in the
immediately preceding section, at the candidate's own residence, or at the campaign headquarters of the
candidate or political party: Provided, That such posters or election propaganda shall in no case exceed two (2)
feet by three (3) feet in area; Provided, further, That at the site of and on the occasion of a public meeting or rally,
streamers, not more than two (2) feet and not exceeding three (3) feet by eight (8) each may be displayed five (5)
days before the date of the meeting or rally, and shall be removed within twenty-four (24) hours after said
meeting or rally; and

"(b) For any newspapers, radio broadcasting or television station, or other mass media, or any person making use
of the mass media to sell or give for free of charge print space or air time for campaign or other political purposes
except to the Commission as provided under Section 90 and 92 of Batas Pambansa Big. 881. Any mass media
columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a
leave of absence from his work as such during the campaign."

The repeal of the provision on the Common Poster Area implements the strong recommendations of the
Commission on Elections during the hearings. It also seeks to apply the doctrine enunciated by the Supreme Court
in the case of Blo Umpar Adiong vs. Commission on Elections, 207 SCRA 712, 31 March 1992. Here a unanimous
Supreme Court ruled: The COMELEC's prohibition on the posting of decals and stickers on "mobile" places whether
public or private except [in] designated areas provided for by the COMELEC itself is null and void on constitutional
grounds.

For the foregoing reasons, we commend to our colleagues the early passage of Senate Bill No. 1742. In so doing,
we move one step towards further ensuring "free, orderly, honest, peaceful and credible elections" as mandated
by the Constitution.45

Given the foregoing background, it is therefore ineluctable to conclude that Congress intended to provide a more
expansive and liberal means by which the candidates, political parties, citizens and other stake holders in the
periodic electoral exercise may be given a chance to fully explain and expound on their candidacies and platforms
of governance, and for the electorate to be given a chance to know better the personalities behind the candidates.
In this regard, the media is also given a very important part in that undertaking of providing the means by which
the political exercise becomes an interactive process. All of these would be undermined and frustrated with the
kind of regulation that the respondent came up with.

The respondent gave its own understanding of the import of the legislative deliberations on the adoption of R.A.
No. 9006 as follows:

The legislative history of R.A. 9006 clearly shows that Congress intended to impose the per candidate or political
party aggregate total airtime limits on political advertisements and election propaganda. This is evidenced by the
dropping of the "per day per station" language embodied in both versions of the House of Representatives and
Senate bills in favour of the "each candidate" and "not more than" limitations now found in Section 6 of R.A. 9006.

The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742 read as follows:

House Bill No. 9000:

SEC. 4. Section 86 of the same Batas is hereby amended to read as follows:

Sec. 86. Regulation of Election Propaganda Through Mass Media.

xxx xxx xxx

A) The total airtime available to the candidate and political party, whether by purchase or by donation, shall be
limited to five (5) minutes per day in each television, cable television and radio stations during the applicable
campaign period.

Senate Bill No. 1742:

SEC. 5. Equal Access to Media Space and Time. -All registered parties and bona fide candidates shall have equal
access to media space and time. The following guidelines may be amplified by the COMELEC.

xxx xxx xxx

2. The total airtime available for each registered party and bona fide candidate whether by purchase or donation
shall not exceed a total of one (1) minute per day per television or radio station. (Emphasis supplied.)

As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the legislature intended the aggregate
airtime limits to be computed on per candidate or party basis. Otherwise, if the legislature intended the
computation to be on per station basis, it could have left the original "per day per station" formulation. 46

The Court does not agree. It cannot bring itself to read the changes in the bill as disclosing an intent that the
COMELEC wants this Court to put on the final language of the law. If anything, the change in language meant that
the computation must not be based on a "per day" basis for each television or radio station. The same could not
therefore lend itself to an understanding that the total allowable time is to be done on an aggregate basis for all
television or radio stations. Clearly, the respondent in this instance went beyond its legal mandate when it
provided for rules beyond what was contemplated by the law it is supposed to implement. As we held in Lakin, Jr.
v. Commission on Elections:47

The COMELEC, despite its role as the implementing arm of the Government in the enforcement and administration
of all laws and regulations relative to the conduct of an election, has neither the authority nor the license to
expand, extend, or add anything to the law it seeks to implement thereby. The IRRs the COMELEC issued for that
purpose should always be in accord with the law to be implemented, and should not override, supplant, or modify
the law. It is basic that the IRRs should remain consistent with the law they intend to carry out.

Indeed, administrative IRRs adopted by a particular department of the Government under legislative authority
must be in harmony with the provisions of the law, and should be for the sole purpose of carrying the law's general
provisions into effect. The law itself cannot be expanded by such IRRs, because an administrative agency cannot
amend an act of Congress.48

In the case of Lakin, Jr., the COMELEC's explanation that the Resolution then in question did not add anything but
merely reworded and rephrased the statutory provision did not persuade the Court. With more reason here since
the COMELEC not only reworded or rephrased the statutory provision - it practically replaced it with its own idea
of what the law should be, a matter that certainly is not within its authority. As the Court said in Villegas v.
Subido:49

One last word. Nothing is better settled in the law than that a public official exercises power, not rights. The
government itself is merely an agency through which the will of the state is expressed and enforced. Its officers
therefore are likewise agents entrusted with the responsibility of discharging its functions. As such there is no
presumption that they are empowered to act. There must be a delegation of such authority, either express or
implied. In the absence of a valid grant, they are devoid of power. What they do suffers from a fatal infirmity. That
principle cannot be sufficiently stressed. In the appropriate language of Chief Justice Hughes: "It must be conceded
that departmental zeal may not be permitted to outrun the authority conferred by statute." Neither the high
dignity of the office nor the righteousness of the motive then is an acceptable substitute. Otherwise the rule of law
becomes a myth. Such an eventuality, we must take all pains to avoid. 50

So it was then. So does the rule still remains the same.

d. Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits also goes against the constitutional guaranty of
freedom of expression, of speech and of the press

The guaranty of freedom to speak is useless without the ability to communicate and disseminate what is said. And
where there is a need to reach a large audience, the need to access the means and media for such dissemination
becomes critical. This is where the press and broadcast media come along. At the same time, the right to speak
and to reach out would not be meaningful if it is just a token ability to be heard by a few. It must be coupled with
substantially reasonable means by which the communicator and the audience could effectively interact. Section 9
(a) of COMELEC Resolution No. 9615, with its adoption of the "aggregate-based" airtime limits unreasonably
restricts the guaranteed freedom of speech and of the press.

Political speech is one of the most important expressions protected by the Fundamental Law. "[F]reedom of
speech, of expression, and of the press are at the core of civil liberties and have to be protected at all costs for the
sake of democracy."51 Accordingly, the same must remain unfettered unless otherwise justified by a compelling
state interest.

In regard to limitations on political speech relative to other state interests, an American case observed:

A restriction on the amount of money a person or group can spend on political communication during a campaign
necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in
today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails
printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the
event. The electorate's increasing dependence on television, radio, and other mass media for news and
information has made these expensive modes of communication indispensable instruments of effective political
speech.

The expenditure limitations contained in the Act represent substantial, rather than merely theoretical restraints on
the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to a clearly identified
candidate," 18 U.S.C. § 608(e)(l) (1970 ed., Supp. IV), would appear to exclude all citizens and groups except
candidates, political parties, and the institutional press from any significant use of the most effective modes of
communication. Although the Act's limitations on expenditures by campaign organizations and political parties
provide substantially greater room for discussion and debate, they would have required restrictions in the scope of
a number of past congressional and Presidential campaigns and would operate to constrain campaigning by
candidates who raise sums in excess of the spending ceiling. 52

Section 9 (a) ofCOMELEC Resolution No. 9615 comes up with what is challenged as being an unreasonable basis for
determining the allowable air time that candidates and political parties may avail of. Petitioner GMA came up with
its analysis of the practical effects of such a regulation:

5.8. Given the reduction of a candidate's airtime minutes in the New Rules, petitioner GMA estimates that
a national candidate will only have 120 minutes to utilize for his political advertisements in television
during the whole campaign period of 88 days, or will only have 81.81 seconds per day TV exposure
allotment. If he chooses to place his political advertisements in the 3 major TV networks in equal
allocation, he will only have 27.27 seconds of airtime per network per day. This barely translates to 1
advertisement spot on a 30-second spot basis in television.

5.9. With a 20-hour programming per day and considering the limits of a station's coverage, it will be
difficult for 1 advertising spot to make a sensible and feasible communication to the public, or in political
propaganda, to "make known [a candidate's] qualifications and stand on public issues".

5.10 If a candidate loads all of his 81.81 seconds per day in one network, this will translate to barely three
30-second advertising spots in television on a daily basis using the same assumptions above.

5.11 Based on the data from the 2012 Nielsen TV audience measurement in Mega Manila, the commercial
advertisements in television are viewed by only 39.2% of the average total day household audience if such
advertisements are placed with petitioner GMA, the leading television network nationwide and in Mega
Manila. In effect, under the restrictive aggregate airtime limits in the New Rules, the three 30-second
 political advertisements of a candidate in petitioner GMA will only be communicated to barely 40% of the
viewing audience, not even the voting population, but only in Mega Manila, which is defined by AGB
Nielsen Philippines to cover Metro Manila and certain urban areas in the provinces of Bulacan, Cavite,
Laguna, Rizal, Batangas and Pampanga. Consequently, given the voting population distribution and the
drastically reduced supply of airtime as a result of the New Rules' aggregate airtime limits, a national
candidate will be forced to use all of his airtime for political advertisements in television only in urban
areas such as Mega Manila as a political campaign tool to achieve maximum exposure.

5.12 To be sure, the people outside of Mega Manila or other urban areas deserve to be informed of the
candidates in the national elections, and the said candidates also enjoy the right to be voted upon by
these informed populace.53

The Court agrees. The assailed rule on "aggregate-based" airtime limits is unreasonable and arbitrary as it unduly
restricts and constrains the ability of candidates and political parties to reach out and communicate with the
people. Here, the adverted reason for imposing the "aggregate-based" airtime limits - leveling the playing field -
does not constitute a compelling state interest which would justify such a substantial restriction on the freedom of
candidates and political parties to communicate their ideas, philosophies, platforms and programs of government.
And, this is specially so in the absence of a clear-cut basis for the imposition of such a prohibitive measure. In this
particular instance, what the COMELEC has done is analogous to letting a bird fly after one has clipped its wings.

It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast time
when we consider that the Philippines is not only composed of so many islands. There are also a lot of languages
and dialects spoken among the citizens across the country. Accordingly, for a national candidate to really reach out
to as many of the electorates as possible, then it might also be necessary that he conveys his message through his
advertisements in languages and dialects that the people may more readily understand and relate to. To add all of
these airtimes in different dialects would greatly hamper the ability of such candidate to express himself - a form
of suppression of his political speech.

Respondent itself states that "[t]elevision is arguably the most costeffective medium of dissemination. Even a
slight increase in television exposure can significantly boost a candidate's popularity, name recall and
electability."54 If that be so, then drastically curtailing the ability of a candidate to effectively reach out to the
electorate would unjustifiably curtail his freedom to speak as a means of connecting with the people.

Finally on this matter, it is pertinent to quote what Justice Black wrote in his concurring opinion in the landmark
Pentagon Papers case: "In the First Amendment, the Founding Fathers gave the free press the protection it must
have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The
Government's power to censor the press was abolished so that the press would remain forever free to censure the
Government. The press was protected so that it could bare the secrets of government and inform the people. Only
a free and unrestrained press can effectively expose deception in government."55

In the ultimate analysis, when the press is silenced, or otherwise muffled in its undertaking of acting as a sounding
board, the people ultimately would be the victims.

e. Section 9 (a) of Resolution 9615 is violative of the people's right to suffrage

Fundamental to the idea of a democratic and republican state is the right of the people to determine their own
destiny through the choice of leaders they may have in government. Thus, the primordial importance of suffrage
and the concomitant right of the people to be adequately informed for the intelligent exercise of such birthright. It
was said that:
x x x As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the
modality and form devised, must continue to be the means by which the great reservoir of power must be emptied
into the receptacular agencies wrought by the people through their Constitution in the interest of good
government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of
government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate
source of the established authority. He has a voice in his Government and whenever possible it is the solemn duty
of the judiciary, when called upon to act in justifiable cases, to give it efficacy and not to stifle or frustrate it. This,
fundamentally, is the reason for the rule that ballots should be read and appreciated, if not with utmost, with
reasonable, liberality. x x x56 It has also been said that "[ c ]ompetition in ideas and governmental policies is at the
core of our electoral process and of the First Amendment freedoms." 57 Candidates and political parties need
adequate breathing space - including the means to disseminate their ideas. This could not be reasonably addressed
by the very restrictive manner by which the respondent implemented the time limits in regard to political
advertisements in the broadcast media.

f. Resolution No. 9615 needs prior hearing before adoption

The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then came up with a public hearing on
January 31, 2013 to explain what it had done, particularly on the aggregate-based air time limits. This circumstance
also renders the new regulation, particularly on the adoption of the aggregate-based airtime limit, questionable. It
must not be overlooked that the new Resolution introduced a radical change in the manner in which the rules on
airtime for political advertisements are to be reckoned. As such there is a need for adequate and effective means
by which they may be adopted, disseminated and implemented. In this regard, it is not enough that they be
published - or explained - after they have been adopted.

While it is true that the COMELEC is an independent office and not a mere administrative agency under the
Executive Department, rules which apply to the latter must also be deemed to similarly apply to the former, not as
a matter of administrative convenience but as a dictate of due process. And this assumes greater significance
considering the important and pivotal role that the COMELEC plays in the life of the nation. Thus, whatever might
have been said in Commissioner of Internal Revenue v. Court of Appeals, 58 should also apply mutatis mutandis to
the COMELEC when it comes to promulgating rules and regulations which adversely affect, or impose a heavy and
substantial burden on, the citizenry in a matter that implicates the very nature of government we have adopted:

It should be understandable that when an administrative rule is merely interpretative in nature, its applicability
needs nothing further than its bare issuance for it gives no real consequence more than what the law itself has
already prescribed. When, upon the other hand, the administrative rule goes beyond merely providing for the
means that can facilitate or render least cumbersome the implementation of the law but substantially adds to or
increases the burden of those governed, it behooves the agency to accord at least to those directly affected a
chance to be heard, and thereafter to be duly informed, before that new issuance is given the force and effect of
law.

A reading of RMC 37-93, particularly considering the circumstances under which it has been issued, convinces us
that the circular cannot be viewed simply as a corrective measure (revoking in the process the previous holdings of
past Commissioners) or merely as construing Section 142(c)(l) of the NIRC, as amended, but has, in fact and most
importantly, been made in order to place "Hope Luxury," "Premium More" and "Champion" within the
classification of locally manufactured cigarettes bearing foreign brands and to thereby have them covered by RA
7654. Specifically, the new law would have its amendatory provisions applied to locally manufactured cigarettes
which at the time of its effectivity were not so classified as bearing foreign brands. x x x In so doing, the BIR not
simply interpreted the law; verily, it legislated under its quasi-legislative authority. The due observance of the
requirements of notice, of hearing, and of publication should not have been then ignored. 59

For failing to conduct prior hearing before coming up with Resolution No. 9615, said Resolution, specifically in
regard to the new rule on aggregate airtime is declared defective and ineffectual.
g. Resolution No. 9615 does not impose an unreasonable burden on the broadcast industry

It is a basic postulate of due process, specifically in relation to its substantive component, that any governmental
rule or regulation must be reasonable in its operations and its impositions. Any restrictions, as well as sanctions,
must be reasonably related to the purpose or objective of the government in a manner that would not work
unnecessary and unjustifiable burdens on the citizenry. Petitioner GMA assails certain requirements imposed on
broadcast stations as unreasonable. It explained:

5.40 Petitioner GMA currently operates and monitors 21 FM and AM radio stations nationwide and 8
originating television stations (including its main transmitter in Quezon City) which are authorized to
dechain national programs for airing and insertion of local content and advertisements.

5.41 In light of the New Rules wherein a candidate's airtime minutes are applied on an aggregate basis
and considering that said Rules declare it unlawful in Section 7( d) thereof for a radio, television station or
other mass media to sell or give for free airtime to a candidate in excess of that allowed by law or by said
New Rules:

"Section 7. Prohibited Forms of Election Propaganda -During the campaign period, it is unlawful: x x x x x x
xxx

(d) for any newspaper or publication, radio, television or cable television station, or other mass media, or
any person making use of the mass media to sell or to give free of charge print space or air time for
campaign or election propaganda purposes to any candidate or party in excess of the size, duration or
frequency authorized by law or these rules;

xxx xxx xxx

(Emphasis supplied)

petitioner GMA submits that compliance with the New Rules in order to avoid administrative or criminal
liability would be unfair, cruel and oppressive.

x x x x.

5.43 In the present situation wherein airtime minutes shall be shared by all television and radio stations,
broadcast mass media organizations would surely encounter insurmountable difficulties in monitoring the
airtime minutes spent by the numerous candidates for various elective positions, in real time.

5.44 An inquiry with the National Telecommunications Commission (NTC) bears out that there are 372
television stations and 398 AM and 800 FM radio stations nationwide as of June 2012. In addition, there
are 1, 113 cable TV providers authorized by the NTC to operate within the country as of the said date.

5.45 Given such numbers of broadcast entities and the necessity to monitor political advertisements
pursuant to the New Rules, petitioner OMA estimates that monitoring television broadcasts of all
authorized television station would involve 7,440 manhours per day. To aggravate matters, since a
candidate may also spend his/her broadcasting minutes on cable TV, additional 281,040 manhours per
day would have to be spent in monitoring the various channels carried by cable TV throughout the
Philippines. As far as radio broadcasts (both AM and FM stations) are concerned, around 23,960
manhours per day would have to be devoted by petitioner OMA to obtain an accurate and timely
determination of a political candidate's remaining airtime minutes. During the campaign period,
 petitioner OMA would have to spend an estimated 27,494,720 manhours in monitoring the election
campaign commercials of the different candidates in the country.1âwphi1

5.46 In order to carry-out the obligations imposed by the New Rules, petitioner OMA further estimates
that it would need to engage and train 39,055 additional persons on an eight-hour shift, and assign them
all over the country to perform the required monitoring of radio, television and cable TV broadcasts. In
addition, it would likewise need to allot radio, television, recording equipment and computers, as well as
telecommunications equipment, for this surveillance and monitoring exercise, thus imputing additional
costs to the company. Attached herewith are the computations explaining how the afore-said figures
were derived and the conservative assumptions made by petitioner OMA in reaching said figures, as
Annex "H".

5.47 Needless to say, such time, manpower requirements, expense and effort would have to be replicated
by each and every radio station to ensure that they have properly monitored around 33 national and
more than 40,000 local candidates' airtime minutes and thus, prevent any risk of administrative and
criminal liability.60

The Court cannot agree with the contentions of GMA. The apprehensions of the petitioner appear more to be the
result of a misappreciation of the real import of the regulation rather than a real and present threat to its
broadcast activities. The Court is more in agreement with the respondent when it explained that:

The legal duty of monitoring lies with the Comelec. Broadcast stations are merely required to submit certain
documents to aid the Comelec in ensuring that candidates are not sold airtime in excess of the allowed limits.
These documents include: (1) certified true copies of broadcast logs, certificates of performance, and certificates
of acceptance, or other analogous record on specified dates (Section 9[d][3], Resolution No. 9615, in relation to
Section 6.2, R.A. 9006; and (2) copies of all contract for advertising, promoting or opposing any political party or
the candidacy of any person for public office within five (5) days after its signing (Section 6.3, R.A. 9006).

*****

[T]here is absolutely no duty on the broadcast stations to do monitoring, much less monitoring in real time. GMA
grossly exaggerates when it claims that the non-existent duty would require them to hire and train an astounding
additional 39,055 personnel working on eight-hour shifts all over the country.61

The Court holds, accordingly, that, contrary to petitioners' contention, the Reporting Requirement for the
COMELEC's monitoring is reasonable.

Further, it is apropos to note that, pursuant to Resolution No. 9631,62 the respondent revised the third paragraph
of Section 9 (a). As revised, the provision now reads:

Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news
documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects
covered by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited to
events sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be
deemed to be broadcast election propaganda within the meaning of this provision. For purposes of monitoring by
the COMELEC and ensuring that parties and candidates were afforded equal opportunities to promote their
candidacy, the media entity shall give prior notice to the COMELEC, through the appropriate Regional Election
Director (RED), or in the case of the National Capital Region (NCR), the Education and Information Department
(EID). If such prior notice is not feasible or practicable, the notice shall be sent within twenty-four (24) hours from
the first broadcast or publication.1awp++i1 Nothing in the foregoing sentence shall be construed as relieving
broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-
the-spot coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of these
Rules."63

Further, the petitioner in G.R. No. 205374 assails the constitutionality of such monitoring requirement, contending,
among others, that it constitutes prior restraint. The Court finds otherwise. Such a requirement is a reasonable
means adopted by the COMELEC to ensure that parties and candidates are afforded equal opportunities to
promote their respective candidacies. Unlike the restrictive aggregate-based airtime limits, the directive to give
prior notice is not unduly burdensome and unreasonable, much less could it be characterized as prior restraint
since there is no restriction on dissemination of information before broadcast. Additionally, it is relevant to point
out that in the original Resolution No. 9615, the paragraph in issue was worded in this wise:

Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news
documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects
covered by the news documentary, or on-the-spot coverage of bona fide news events, including but not limited to
events sanctioned by the Commission on Elections, political conventions, and similar activities, shall not be
deemed to be broadcast election propaganda within the meaning of this provision. To determine whether the
appearance or guesting in a program is bona fide, the broadcast stations or entities must show that (1) prior
approval of the Commission was secured; and (2) candidates and parties were afforded equal opportunities to
promote their candidacy. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in
connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage
of news events, from the obligation imposed upon them under Sections 10 and 14 of these Rules. 64

Comparing the original with the revised paragraph, one could readily appreciate what the COMELEC had done - to
modify the requirement from "prior approval" to "prior notice." While the former may be suggestive of a censorial
tone, thus inviting a charge of prior restraint, the latter is more in the nature of a content-neutral regulation
designed to assist the poll body to undertake its job of ensuring fair elections without having to undertake any
chore of approving or disapproving certain expressions.

Also, the right to reply provision is reasonable

In the same way that the Court finds the "prior notice" requirement as not constitutionally infirm, it similarly
concludes that the "right to reply" provision is reasonable and consistent with the constitutional mandate.

Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides:

SECTION 14. Right to Reply. - All registered political parties, party-list groups or coalitions and bona fide candidates
shall have the right to reply to charges published or aired against them. The reply shall be given publicity by the
newspaper, television, and/or radio station which first printed or aired the charges with the same prominence or
in the same page or section or in the same time slot as the first statement.

Registered political parties, party-list groups or coalitions and bona fide candidates may invoke the right to reply by
submitting within a nonextendible period of forty-eight hours from first broadcast or publication, a formal verified
claim against the media outlet to the COMELEC, through the appropriate RED. The claim shall include a detailed
enumeration of the circumstances and occurrences which warrant the invocation of the right to reply and must be
accompanied by supporting evidence, such a copy of the publication or recording of the television or radio
broadcast, as the case may be. If the supporting evidence is not yet available due to circumstances beyond the
power of the claimant, the latter shall supplement his claim as soon as the supporting evidence becomes available,
without delay on the part of the claimant. The claimant must likewise furnish a copy of the verified claim and its
attachments to the media outlet concerned prior to the filing of the claim with the COMELEC.
The COMELEC, through the RED, shall view the verified claim within forty-eight ( 48) hours from receipt thereof,
including supporting evidence, and if circumstances warrant, give notice to the media outlet involved for
appropriate action, which shall, within forty-eight ( 48) hours, submit its comment, answer or response to the RED,
explaining the action it has taken to address the claim. The media outlet must likewise furnish a copy of the said
comment, answer or response to the claimant invoking the right to reply.

Should the claimant insist that his/her right to reply was not addressed, he/she may file the appropriate petition
and/or complaint before the Commission on Elections or its field offices, which shall be endorsed to the Clerk of
Court.

The attack on the validity of the "right to reply" provision is primarily anchored on the alleged ground of prior
restraint, specifically in so far as such a requirement may have a chilling effect on speech or of the freedom of the
press.

Petitioner ABC states, inter alia:

5 .14 5. A "conscious and detailed consideration" of the interplay of the relevant interests - the
constitutional mandate granting candidates the right to reply and the inviolability of the constitutional
freedom of expression, speech, and the press - will show that the Right to Reply, as provided for in the
Assailed Resolution, is an impermissible restraint on these fundamental freedoms.

5.146. An evaluation of the factors set forth in Soriano (for the balancing of interests test) with respect to
the present controversy will show that the Constitution does not tilt the balance in favor of the Right to
Reply provision in the Assailed Resolution and the supposed governmental interest it attempts to
further.65

The Constitution itself provides as part of the means to ensure free, orderly, honest, fair and credible elections, a
task addressed to the COMELEC to provide for a right to reply. 66 Given that express constitutional mandate, it
could be seen that the Fundamental Law itself has weighed in on the balance to be struck between the freedom of
the press and the right to reply. Accordingly, one is not merely to see the equation as purely between the press
and the right to reply. Instead, the constitutionallymandated desiderata of free, orderly, honest, peaceful, and
credible elections would necessarily have to be factored in trying to see where the balance lies between press and
the demands of a right-to-reply.

Moreover, as already discussed by the Court in Telecommunications and Broadcast Attorneys of the Philippines,
Inc. v. Commission on Elections.67

In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves and
frequencies through which they transmit broadcast signals and images. They are merely given the temporary
privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be
burdened with the performance by the grantee of some form of public service. x x x 68

Relevant to this aspect are these passages from an American Supreme Court decision with regard to broadcasting,
right to reply requirements, and the limitations on speech:

We have long recognized that each medium of expression presents special First Amendment problems. Joseph
Burstyn, Inc. v. Wilson, 343 US 495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of all forms of communication, it is
broadcasting that has received the most limited First Amendment protection. Thus, although other speakers
cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be
deprived of his license and his forum if the Commission decides that such an action would serve "the public
interest, convenience, and necessity." Similarly, although the First Amendment protects newspaper publishers
from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418
US 241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no such protection to broadcasters; on the contrary, they must give
free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 US. 367, 23 L Ed 2d 371, 89 S Ct
1794.

The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast
media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent
material presented over the airwaves confronts the citizen not only in public, but also in the privacy of the home,
where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v.
Post Office Dept., 397 US 728, 25 L Ed 2d 736, 90 S Ct 1484. Because the broadcast audience is constantly tuning in
and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To
say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that
the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that
option does not give the caller a constitutional immunity or avoid a harm that has already taken place.

Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written
message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's
vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting
the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making
indecent material available to children. We held in Ginsberg v. New York, 390 US 629, that the government's
interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household"
justified the regulation of otherwise protected expression. The ease with which children may obtain access to
broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent
broadcasting.69

Given the foregoing considerations, the traditional notions of preferring speech and the press over so many other
values of society do not readily lend itself to this particular matter. Instead, additional weight should be accorded
on the constitutional directive to afford a right to reply. If there was no such mandate, then the submissions of
petitioners may more easily commend themselves for this Court's acceptance. But as noted above, this is not the
case. Their arguments simplistically provide minimal importance to that constitutional command to the point of
marginalizing its importance in the equation.

In fine, when it comes to election and the exercise of freedom of speech, of expression and of the press, the latter
must be properly viewed in context as being necessarily made to accommodate the imperatives of fairness by
giving teeth and substance to the right to reply requirement.

WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED, Section 9 (a) of Resolution No. 9615, as
amended by Resolution No. 9631, is declared UNCONSTITUTIONAL and, therefore, NULL and VOID. The
constitutionality of the remaining provisions of Resolution No. 9615, as amended by Resolution No. 9631, is upheld
and remain in full force and effect.

In view of this Decision, the Temporary Restraining Order issued by the Court on April 16, 2013 is hereby made
PERMANENT.

SO ORDERED.

G.R. No. 170256 January 25, 2010

ALVIN B. GARCIA, Petitioner,

vs.
COMMISSION ON ELECTIONS and TOMAS R. OSMEÑA, Respondents.
 DECISION

PERALTA, J.:

This is a petition for certiorari1 alleging that the Commission on Elections (COMELEC) en banc committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolutions dated April 28, 2005 and
October 5, 2005 in Election Offense Case No. 04-120. In the Resolution dated April 28, 2005, the COMELEC en banc
found probable cause that petitioner Alvin B. Garcia committed an election offense and directed the Law
Department of COMELEC to file the appropriate Information against him for violation of Section 6 of Republic Act
(R.A.) No. 9006, otherwise known as the "Fair Elections Act,"2 and Section 13 of COMELEC Resolution No. 6520, the
Implementing Rules and Regulations (IRR) of R.A. No. 9006. The Resolution dated October 5, 2005 denied
petitioner’s motion for reconsideration.

The facts are as follows:

On May 6, 2004, private respondent Tomas R. Osmeña, then mayoral candidate in the 2004 national and local
elections in Cebu City, filed an election offense case against his rival, petitioner Alvin B. Garcia, for the publication
of political advertisements that allegedly violated the thrice-a-week publication requirement and failed to indicate
the name and address of the party or candidate for whose benefit the advertisements were published. He averred
that the publication of the political advertisements was in violation of Sections 4 and 6 of R.A. No. 90063 and
Sections 11 and 13 of COMELEC Resolution No. 6520. 4

In his Complaint5 dated May 6, 2004, private respondent alleged, thus:

For the period April 26, 2004 up to May 2, 2004, or for a period of one week, respondent through his family-owned
publishing company put up political advertisements, which we can group into four basic categories, namely,
"MAYOR SA KATAWHAN," "IT'S A NO-CONTEST," "NO TO TOM TAX OSMENA," and "Mayor Alvin Garcia"
advertisements.6

Private respondent averred that "MAYOR SA KATAWHAN" was published four times, that is, on April 27 and 29,
2004 and May 1 and 2, 2004, all one-half page in size, in the Sun Star tabloid. Moreover, the "IT’S A NO-CONTEST"
political advertisement was printed daily, or seven times in Sun Star, all one-half page in size, from April 26 to May
2, 2004. The "NO TO TOM TAX OSMEÑA" advertisement appeared thrice, or on April 28 and 29, 2004 and May 1,
2004, also one-half page in size, in the same tabloid. The "Mayor Alvin Garcia" advertisement was published once.
Private respondent alleged that all the political advertisements did not indicate the true and correct name and
address of the party or candidate for whose benefit the advertisements were published.

In his Answer,7 petitioner denied private respondent’s allegations. He contended that the political advertisements
had been made not for a single candidate, but for the entire slate of his party, Kusug-KNP Party, consisting of 20
local candidates, plus presidential and vice-presidential candidates Fernando Poe, Jr. and Loren Legarda,
respectively. Petitioner asserted that "22 candidates x 3 a week results to 66 times a week publication for all the
candidates" of the Kusug-KNP Party. Thus, the publication of the political advertisements, may it be seven or 15
times, was way below the allowable limit of 66 times for the 22 political candidates of the Kusug-KNP Party.
Consequently, the political advertisements in question had not exceeded the legal limit provided by R.A. No. 9006,
as implemented by COMELEC Resolution No. 6520.

Further, petitioner stated that the political advertisements in question reflected that they were really campaigns
for the benefit of the candidates of the Kusug-KNP Party, as in fact, they contained the pictures and names of the
party’s political candidates. Hence, he contended that the political advertisements substantially complied with the
requirement provided by the Fair Elections Act that the advertisement shall contain the true and correct name and
address of the party or candidate for whose benefit the election propaganda was printed.
In a Resolution dated November 8, 2004, the Office of the Regional Investigation and Prosecution Committee
(Office of the Regional Director, Region VII, Cebu City) recommended the dismissal of the Complaint based on this
finding:

The respondent did not violate the thrice-a-week rule laid down by Sec. 6 of RA 9006 as implemented by Sec. 13 of
Comelec Resolution 6520. As correctly pointed out by respondent, the said political advertisement is not for the
benefit or published for the respondent alone, but for the whole Kusug-KNP Party as can be gleaned from said
advertisements, thus, the whole party with twenty local candidates and the Kusog Party and its alliance with
Koalisyong Nagkakaisang Pilipino (KNP) is entitled to as much as 66 times a week for each publication. The very
purpose of the law is to provide candidates wide latitude in informing the electorate regarding their platforms and
qualifications during the campaign period.

The same can be said on the alleged violation of Sec. 4 of RA 9006 as implemented by Sec. 11 of Comelec
Resolution 6520. Although respondent's political advertisement did not literally contain the requirement of
indicating the true and correct name and address for whose benefit the election propaganda was published, this
requirement is substantially met by the respondent because it can be glean[ed] [from the] said ads for whose
benefit the same was made as shown by the pictures and names of the candidates and who paid for it. A literal
implementation of the law should not be required if the same can be met substantially and the purpose of the law
is achieve[d] and that is equal access to media is given to candidates to make known their qualifications and stand
on public issues.8

In a Resolution dated April 28, 2005, the COMELEC en banc disagreed with the recommendation of the
investigating officer, thus:

We disagree. RA 9006 provides to wit:

Sec. 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.

This is amplified by Comelec Resolution 6520, thus:

SECTION 13. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. - All
registered political parties, party-list groups, organizations, and/or coalitions thereof, and bona fide candidates
shall have equal access to media time and space for their election propaganda during the campaign period subject
to the following requirements and/or limitations:

xxxx

2. Printed or Published Election Propaganda

The maximum size of print advertisements for each candidate, whether for a national or local elective position, or
registered political party, party-list group, organization, and/or coalition thereof, shall be, as follows:

a. One fourth (1/4) page - in broadsheets; and

b. One half (1/2) page - in tabloids

Said print advertisements, whether procured by purchase, or given free of charge, shall be published thrice a
weekper newspaper, magazine or other publications during the campaign period. (emphasis supplied)

Insofar as the political propaganda, "it’s a no-contest," is concerned, respondent does not deny that the same was
published in Sun Star for seven (7) consecutive times – from 26 April 2004 to 02 May 2004 – or for a period of one
week, straight. An inspection of the said advertisement reveals that it refers only to respondent; there is no
mention of his political party or party-mates, making it clear that it was his advertisement alone. The computation
thus made by respondent and so adopted by the investigating officer, assuming this to be true and valid, would not
and cannot apply in this instance. The provisions of law violated need no further interpretation as they are very
plain and unambiguous.

That other candidates are claimed to have committed the same violation does not excuse herein respondent nor
does it remove from this Commission the authority and power to prosecute the same. In fact, it compels Us to be
even more vigorous and relentless in pursuing Our duties. In this regard, there shall be no sacred cows. 9

The dispositive portion of the Resolution reads:

CONSIDERING that there exists PROBABLE CAUSE, the Law Department is hereby DIRECTED to file the appropriate
information against respondent Alvin B. Garcia for violation of Section 6 of RA 9006, and Section 13 of COMELEC
Resolution No. 6520, in relation to Section 264 of the Omnibus Election Code, as amended. 10

Petitioner filed a Motion for Reconsideration 11 and, thereafter, a Supplemental Motion for Reconsideration 12 of
the Resolution, contending that there was lack of probable cause to hold him liable for an election offense in
violation of R.A. No. 9006 and its IRR, because he was neither the author of the questioned advertisement nor the
one who caused its publication. He stated that Orlando P. Carvajal, the General Manager of Sun Star Publishing,
Inc., attested in an Affidavit dated May 23, 2005 that an organization named Friends of Alvin Garcia caused the
publication of the said advertisement.

Petitioner contended that since he did not cause the publication of the advertisement in question, and absent any
competent proof against him, there was no probable cause warranting the filing of an Information against him for
violation of R.A. No. 9006, as implemented by COMELEC Resolution No. 6520.

In a Resolution13 dated October 5, 2005, the COMELEC en banc denied the motion for reconsideration for lack of
merit.

On October 13, 2006, the COMELEC Law Department directed Atty. Manuel T. Advincula, Acting Regional Election
Director of Region VII, to file the Information entitled People of the Philippines v. Alvin B. Garcia with the proper
Regional Trial Court (RTC) of Cebu.

Petitioner filed an Urgent Motion to Withhold Issuance of Warrant of Arrest and for Judicial Determination of
Probable Cause with the RTC of Cebu City, Branch 12, on the following grounds:

1. The filing of the information by the COMELEC is premature considering that there is a pending petition
for certiorari before the Supreme Court questioning the resolution of the COMELEC over the subject
matter; and

2. There is lack of probable cause to subject the accused to a criminal prosecution. 14

On December 21, 2006, the RTC OF Cebu City, Branch 12, issued an Order the dispositive portion of which reads:
IN VIEW OF ALL THE FOREGOING, the determination of probable cause is hereby deferred until after resolution of
the petition for certiorari pending with the Supreme Court. Accordingly, the issuance of a warrant of arrest is held
in abeyance.15

Meantime, on November 18, 2005, petitioner filed this petition, raising the following issues:

THE RESPONDENT COMELEC COMMITTED ERROR AMOUNTING TO GRAVE ABUSE OF DISCRETION IN RULING THAT
THERE EXISTS A PROBABLE CAUSE TO SUBJECT THE PETITIONER TO A CRIMINAL PROSECUTION AS THE POLITICAL
ADVERTISEMENT IN QUESTION DID NOT EXCEED THE ALLOWED FREQUENCY OF PUBLICATION.

II

THE RESPONDENT COMELEC COMMITTED ERROR AMOUNTING TO GRAVE ABUSE OF DISCRETION IN RULING THAT
THERE EXISTS A PROBABLE CAUSE TO SUBJECT THE PETITIONER TO A CRIMINAL PROSECUTION DESPITE THE
PRESENCE OF EVIDENCE THAT THE PETITIONER DID NOT CAUSE THE PUBLICATION OF THE POLITICAL
ADVERTISEMENT IN QUESTION.16

Before this Court, petitioner reiterates that the "IT’S NO CONTEST" political advertisement was attributable not
only to him but to the complete line-up of candidates of Kusug-KNP Party for local elective positions, numbering 20
candidates. The party’s alliance with the KNP, a national party that carried the late Fernando Poe, Jr. for President
and former Senator Loren Legarda for Vice-president, brought the total number of candidates advertised in the
political advertisement to 22, excluding the senatorial line-up.

Petitioner contends that 22 candidates multiplied by three publications per week equals an allowable publication
of 66 times a week for all candidates of the Kusug-KNP Party. Petitioner asserts that the Special Regional
Investigation and Prosecution Committee, therefore, did not err in recommending the dismissal of the Complaint,
as the pertinent advertisement did not violate the thrice-a-week rule laid down by Section 6 of R.A. No. 9006, as
implemented by Section 13 of COMELEC Resolution No. 6520.

Further, petitioner argues that there is no probable cause that he violated Section 11 of COMELEC Resolution No.
6520, because he did not author or cause the publication of the advertisement in question. The affidavit executed
by the General Manager of Sun Star Publishing, Inc. stated that the organization named Friends of Alvin Garcia paid
for the "IT’S A NO-CONTEST" political advertisement for the period April 26, 2004 to May 2, 2004.

Petitioner admits that he and his family own stocks in Sun Star Publishing, Inc. He claims, however, that Sun Star is
independently operated by its News, Editorial and Marketing Departments, and Sun Star Daily prides itself with
catering to no other interest but to that of the general public, and is not beholden to the corporation’s
stockholders and their relatives.

Petitioner asserts that probable cause presupposes the introduction of competent proof that the party against
whom it is sought has performed particular acts or committed specific omissions, violating a given provision of our
criminal laws.

According to petitioner, private respondent did not offer any competent proof that he (petitioner) was the author
of the said political advertisement or caused the publication of the same, but offered merely the publication of the
advertisement in question.

Petitioner submits that having established that he was neither the author of the political advertisement in question
nor the one who caused its publication, there is no probable cause warranting the filing of the Information against
him for violation of R.A. No. 2006, as implemented by COMELEC Resolution No. 6520. Thus, the COMELEC en banc
committed grave abuse of discretion amounting to lack of jurisdiction in issuing the Resolutions dated April 28,
2005 and October 5, 2005.

The Court is not persuaded.

Paragraph 6, Section 2, Article IX of the Constitution empowers the COMELEC to "investigate and, where
appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds,
offenses and malpractices." This prosecutorial power of the COMELEC is reflected in Section 265 of Batas
Pambansa Bilang 881,17 otherwise known as the Omnibus Election Code.

It is well settled that the finding of probable cause in the prosecution of election offenses rests in the COMELEC's
sound discretion.18

Baytan v. Commission on Elections19 defines probable cause, thus:

x x x By definition, probable cause is –

x x x a reasonable ground of presumption that a matter is, or may be, well founded x x x such a state of facts in the
mind of the prosecutor as would lead a person of ordinary caution and prudence to believe or entertain an honest
or strong suspicion that a thing is so. The term does not mean ‘actual or positive cause’ nor does it import absolute
certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require
an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the
act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge.

Generally, the Court will not interfere with the finding of probable cause by the COMELEC absent a clear showing
of grave abuse of discretion.20 This principle emanates from the COMELEC's exclusive power to conduct
preliminary investigation of all election offenses punishable under the election laws and to prosecute the same,
except as may otherwise be provided by law. 21

Section 4 of R.A. No. 9006 provides for the requirements for published or printed election propaganda, thus:

Sec. 4. Requirements for Published or Printed and Broadcast Election Propaganda − 4.1. Any newspaper x x x or
any published or printed political matter and any broadcast of election propaganda by television or radio for or
against a candidate or group of candidates to any public office shall bear and be identified by the reasonably
legible or audible words "political advertisement paid for," followed by the true and correct name and address of
the candidate or party for whose benefit the election propaganda was printed or aired.

xxxx

4.3. Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be printed,
published, broadcast or exhibited without the written acceptance by the said candidate or political party. Such
written acceptance shall be attached to the advertising contract and shall be submitted to the COMELEC as
provided in Subsection 6.3 hereof. (Emphasis supplied.)

Paragraphs 4.1 and 4.3, Section 4 of R.A. No. 9006 are reflected in Section 13 (3) and Section 14 of COMELEC
Resolution No. 6520.22
To emphasize, Section 4 of R.A. No. 9006 requires that print advertisements donated to a candidate shall not be
published without the written acceptance of the said candidate, which written acceptance shall be attached to the
advertising contract and submitted to the COMELEC.

The requirement for a written acceptance by a candidate of donated advertisements is a safeguard provided by
law against the danger of publishing or broadcasting election propaganda beyond the required frequency, size and
other limitations imposed by law without the candidate’s express agreement, since the violation of such
requirements results in the prosecution of the candidate for an election offense punishable under the first and
second paragraphs of Section 264 of the Omnibus Election Code.23 Under Section 264 of the Omnibus Election
Code, a person found guilty of an election offense "shall be punished with imprisonment of not less than one year
but not more than six years and shall not be subject to probation." In addition, "the guilty party shall be sentenced
to suffer disqualification to hold public office and deprivation of the right of suffrage."

In this case, the COMELEC did not question petitioner’s averment that the advertisement in question was paid for
by the organization named Friends of Alvin Garcia. The advertisement may be considered as a donation to
petitioner under Section 4 of R.A. No. 9006 and its IRR. Paragraph 4.3, Section 4 of R.A. No. 9006 explicitly requires
that "print x x x advertisements donated to the candidate or political party shall not be printed, published x x x
without the written acceptance by the said candidate."24 Since the advertisement in question was published by
the Sun Star, there arises a presumption that there was written acceptance by petitioner of the advertisement paid
for or donated by his friends in the absence of evidence to the contrary. Under the Rules on Evidence, it is
presumed that the law has been obeyed, and that private transactions have been fair and regular. 25

Following the general rule, the Court will not interfere with the finding of probable cause by the COMELEC, absent
a clear showing of grave abuse of discretion that must be so patent and gross as to amount to an evasion or refusal
to perform a duty enjoined by law or to act in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion or hostility. 26

The records show that the COMELEC has filed an Information charging petitioner with violation of Section 6 of R.A.
No. 9006 and its IRR with the RTC of Cebu City, Branch 12, which has thereby acquired jurisdiction over the case.
Consequently, all the subsequent dispositions of the said case must be subject to the approval of the court. Hence,
the case must be allowed to take its due course.27

WHEREFORE, the petition for certiorari is hereby DISMISSED. The Resolutions of the COMELEC en banc dated April
28, 2005 and October 5, 2005 are AFFIRMED.

No costs.

SO ORDERED.

G.R. No. 212398, November 25, 2014

EMILIO RAMON “E.R.” P. EJERCITO, Petitioner, v. HON. COMMISSION ON ELECTIONS AND EDGAR “EGAY” S. SAN
LUIS, Respondents.

DECISION

PERALTA, J.:

Contested in this petition for certiorari under Rule 64, in relation to Rule 65 of the Rules of Court (Rules), is the
May 21, 2014 Resolution1 of the Commission on Elections (COMELEC) En Banc in SPA No. 13-306 (DC), which
affirmed the September 26, 2013 Resolution2 of the COMELEC First Division granting the petition for
disqualification filed by private respondent Edgar “Egay” S. San Luis (San Luis) against petitioner Emilio Ramon
“E.R.” P. Ejercito (Ejercito).

Three days prior to the May 13, 2013 National and Local Elections, a petition for disqualification was filed by San
Luis before the Office of the COMELEC Clerk in Manila against Ejercito, who was a fellow gubernatorial candidate
and, at the time, the incumbent Governor of the Province of Laguna.3 Alleged in his Petition are as follows:
FIRST CAUSE OF ACTION

5. [Ejercito], during the campaign period for 2013 local election, distributed to the electorates of the province of
Laguna the so-called “Orange Card” with an intent to influence, induce or corrupt the voters in voting for his favor.
Copy thereof is hereto attached and marked as Annex “C” and made as an integral part hereof;

6. In furtherance of his candidacy for the position of Provincial Governor of Laguna, [Ejercito] and his cohorts
claimed that the said “Orange Card” could be used in any public hospital within the Province of Laguna for their
medical needs as declared by the statements of witnesses which are hereto attached and marked as Annex “D” as
integral part hereof;

7. The so-called “Orange Card” is considered a material consideration in convincing the voters to cast their votes
for [Ejercito’s] favor in clear violation of the provision of the Omnibus Election Code which provides and I quote:
“Sec. 68. Disqualifications. – Any candidate who, in an action or protest in which he is a party is declared by final
decision by a competent court guilty of, or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of
that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97
and 104; or (e) violated any of Sections 80, 83, 85, 86, and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall
be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who
is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country
in accordance with the residence requirement provided for in the election laws.” (emphasis ours)
8. Thus, pursuant to the mandate of the aforesaid law, [Ejercito] should be disqualified;

SECOND CAUSE OF ACTION

9. Based on the records of the Provincial COMELEC, the Province of Laguna has a total of 1,525,522 registered
electorate. A certification issued by the Provincial Election Supervisor is hereto attached and marked as Annex “E”
as an integral part hereof;

10. In this regard, par. (a), Section 5 of COMELEC Resolution No. 9615, otherwise known as the Rules and
Regulations Implementing FAIR ELECTION ACT provides and I quote:
“Authorized Expenses of Candidates and Parties. – The aggregate amount that a candidate or party may spent for
election campaign shall be as follows:

a. For candidates – Three pesos (P3.00) for every voter currently registered in the constituency where the
candidate filed his certificate of candidacy.

b. For other candidates without any political party and without any support from any political party – Five
pesos (P5.00) for every voter currently registered in the constituency where the candidate filed his
certificate of candidacy.

c. For Political Parties and party-list groups – Five pesos (P5.00) for every voter currently registered in the
constituency or constituencies where it has official candidates. (underscoring mine for emphasis)
11. Accordingly, a candidate for the position of Provincial Governor of Laguna is only authorized to incur an
election expense amounting to FOUR MILLION FIVE HUNDRED SEVENTY-SIX THOUSAND FIVE HUNDRED SIXTY-SIX
(P4,576,566.00) PESOS.

12. However, in total disregard and violation of the afore-quoted provision of law, [Ejercito] exceeded his
expenditures in relation to his campaign for the 2013 election. For television campaign commercials alone,
[Ejercito] already spent the sum of PhP23,730.784 based on our party’s official monitoring on the following
dates[:] April 28, May 4 & May 5, 2013.
Network Date Program Time Duration Amount*
4 minutes
ABS-CBN April 28, 2013 TV Patrol 5:58 p.m. P3,297,496
(approximately)
Sundays Best 4 minutes
ABS-CBN April 28, 2013 10:40 p.m. P3,297,496
(local specials) (approximately)
Sunday Night 3 minutes
GMA April 28, 2013 10:46 p.m. P2,635,200
Box Office (approximately)
Sunday Night 4 minutes
GMA April 28, 2013 11:06 p.m. P2,635,200
Box Office (approximately)
Sunday Night 4 minutes
GMA April 28, 2013 11:18 p.m. P2,635,200
Box Office (approximately)
Sunday Night 4 minutes
GMA April 28, 2013 11:47 p.m. P2,635,200
Box Office (approximately)
4 minutes
ABS-CBN May 4, 2013 TODA MAX 11:26 p.m. P3,297,496
(approximately)
4 minutes
ABS-CBN May 5, 2013 Rated K 8:06 p.m. P3,297,496
(approximately)
Total P23,730.784
* Total cost based on published rate card;

13. Even assuming that [Ejercito] was given 30% discount as prescribed under the Fair Election Act, he still
exceeded in the total allowable expenditures for which he paid the sum of P16,611,549;

14. In view of the foregoing disquisitions, it is evident that [Ejercito] committed an election offense as provided for
under Section 35 of COMELEC Resolution No. 9615, which provides and I quote:
“Election Offense. – Any violation of R.A. No. 9006 and these Rules shall constitute an election offense punishable
under the first and second paragraph of Section 264 of the Omnibus Election Code in addition to administrative
liability, whenever applicable. x x x”
15. Moreover, it is crystal clear that [Ejercito] violated Sec. 68 of the Omnibus Election Code which provides and I
quote:
“Sec. 68. Disqualifications. – Any candidate who, in an action or protest in which he is a party is declared by final
decision by a competent court guilty of, or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of
that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97
and 104; or (e) violated any of Sections 80, 83, 85, 86, and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall
be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who
is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country
in accordance with the residence requirement provided for in the election laws.” (emphasis ours)
16. On the other hand, the effect of disqualification is provided under Sec. 6 of Republic Act No. 6646, which states
and I quote:
“Effect of Disqualification Case. – Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he is voted for and receives the winning number of votes
in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest
and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of
the proclamation of such candidate whenever the evidence of [his] guilt is strong.” (emphasis mine)
PRAYER

WHEREFORE, premises considered, it is respectfully prayed that:chanroblesvirtuallawlibrary

1. Upon filing of this petition, a declaration by the Honorable Commission of the existence of probable cause be
made against [Ejercito] for violating the afore-quoted provisions of laws;

2. In the event that [Ejercito] will be able to get a majority vote of the electorate of the Province of Laguna on May
13, 2013, his proclamation be suspended until further order of the Honorable Commission pursuant to Sec. 6 of
Republic Act No. 6646;

3. Lastly, a criminal case for VIOLATION OF ELECTION LAWS be filed against [Ejercito] before the proper court[;]
[and]

4. Other relief, just and equitable under the premises, are also prayed for. 4
Subsequently, on May 16, 2013, San Luis filed a Very Urgent Ex-Parte Motion to Issue Suspension of Possible
Proclamation of Respondent and Supplemental to the Very Urgent Ex-Parte Motion to Issue Suspension of Possible
Proclamation of Respondent.5 However, these were not acted upon by the COMELEC. The next day, Ejercito and
Ramil L. Hernandez were proclaimed by the Provincial Board of Canvassers as the duly-elected Governor and Vice-
Governor, respectively, of Laguna.6 Based on the Provincial/District Certificate of Canvass, Ejercito obtained
549,310 votes compared with San Luis’ 471,209 votes.7chanrobleslaw

The COMELEC First Division issued a Summons with Notice of Conference on June 4, 2013.8 Ejercito then filed
his Verified Answer on June 13, 2013 that prayed for the dismissal of the petition due to procedural and
substantive irregularities and taking into account his proclamation as Provincial Governor.9 He countered that the
petition was improperly filed because, based on the averments and relief prayed for, it is in reality a complaint for
election offenses; thus, the case should have been filed before the COMELEC Law Department, or the election
registrar, provincial election supervisor or regional election director, or the state, provincial or city prosecutor in
accordance with Laurel v. Presiding Judge, RTC, Manila, Br. 10.10 Assuming that the petition could be given due
course, Ejercito argued that San Luis failed to show, conformably with Codilla, Sr. v. Hon. De Venecia,11 that he
(Ejercito) was previously convicted or declared by final judgment of a competent court for being guilty of, or found
by the COMELEC of having committed, the punishable acts under Section 68 of Batas Pambansa (B.P.) Bilang 881,
or the Omnibus Election Code of the Philippines, as amended (OEC).12chanrobleslaw

As to the acts he allegedly committed, Ejercito claimed that the same are baseless, unfounded, and totally
speculative. He stated that the Health Access Program or the E.R. “Orange Card” was a priority project of his
administration as incumbent Governor of Laguna and was never intended to influence the electorate during the
May 2013 elections. He added that the “Orange Card,” which addressed the increasing need for and the high cost
of quality health services, provides the Laguneños not only access to medical services but also the privilege to avail
free livelihood seminars to help them find alternative sources of income. With respect to the charge of having
exceeded the total allowable election expenditures, Ejercito submitted that the accusation deserves no
consideration for being speculative, self-serving, and uncorroborated by any other substantial evidence.

Citing Sinaca v. Mula,13 Ejercito asserted that the petition questioning his qualification was rendered moot and
academic by his proclamation as the duly-elected Provincial Governor of Laguna for the term 2013-2016. He
perceived that his successful electoral bid substantiates the fact that he was an eligible candidate and that his
victory is a testament that he is more than qualified and competent to hold public office.
Lastly, Ejercito considered San Luis’ petition for disqualification as purely frivolous and with no plain and clear
purpose but to harass and cause undue hardship. According to him, the fact that it was filed only a few days before
the May 13, 2013 elections evidently shows that it was lodged as a last-ditch effort to baselessly derail and
obstruct his assumption of office and function as the duly-elected Laguna Governor.

The scheduled case conference between the parties on June 13, 2013 was reset to June 27, 2013. 14 In the latter
date, all the documentary exhibits were marked in evidence and the parties agreed to file their respective
memorandum within ten (10) days.15chanrobleslaw

San Luis substantially reiterated the content of the Petition in his Memorandum.16 Additionally, he alleged that:
15. After the election, [San Luis] was able to secure documents from the Information and Education Department of
the Commission on Elections showing that [Ejercito] have incurred advertising expenses with ABS-CBN in the
amount of [P20,197,170.25] not to mention his advertisement with GMA 7. Copies of the summary report, media
purchase order, advertising contract[,] and official receipt are marked as EXHS. “B-1”, “B-2”, “B-3”, and “B-
4” (Annexes “A”, “B”, “C”, and “D”, supplemental to the very urgent ex-parte motion)[.]17
It was stressed that the case is a “Special Action for Disqualification” seeking to disqualify Ejercito as gubernatorial
candidate for violation of Section 68 (a) (c) of the OEC. He prayed that “[t]he Petition BE GRANTED [and] x x x
[Ejercito] BE DISQUALIFIED, and PREVENTED from further holding office as Governor of Laguna.” 18 In refutation of
Ejercito’s defenses, San Luis argued that it is precisely because of the commission of the election offenses under
Section 68 of the OEC that he (Ejercito) should be disqualified. Also, citing Section 6 of Republic Act (R.A.) No.
6646,19 San Luis contended that Ejercito’s proclamation and assumption of office do not affect the COMELEC’s
jurisdiction to continue with the trial and hearing of the action until it is finally resolved.

For his part, Ejercito filed a Manifestation (In Lieu of Memorandum)20 restating all the arguments set forth in
his Verified Answer.

On September 26, 2013, the COMELEC First Division promulgated a Resolution, the dispositive portion of which
reads:
WHEREFORE, premises considered, the Commission (First Division) RESOLVED, as it hereby RESOLVES,
to:chanroblesvirtuallawlibrary

(1) GRANT the Petition for Disqualification filed against respondent Emilio Ramon “E.R.” P. Ejercito;
(2) DISQUALIFY respondent Ejercito from holding the Office of the Provincial Governor of Laguna, pursuant to
Section 68 of the Omnibus Election Code;
(3) ORDER respondent Ejercito to CEASE and DESIST from performing the functions of the Office of the
Provincial Governor of Laguna;
(4) DECLARE a permanent VACANCY in the Office of the Provincial Governor of Laguna;
(5) DIRECT the duly elected Vice Governor of Laguna to assume the Office of the Provincial Governor by virtue of
succession as provided in Section 44 of the Local Government Code; and
(6) DIRECT the Campaign Finance Unit to coordinate with the Law Department of this Commission for the
conduct of a preliminary investigation into the alleged violations of campaign finance laws, rules and
regulations committed by respondent Ejercito.

SO ORDERED.21
On procedural matters, the COMELEC First Division held that the title of San Luis’ petition and its reliance on
Section 68 (a) (c) of the OEC as grounds for his causes of action clearly show that the case was brought under Rule
25 of the COMELEC Rules of Procedure,22 as amended by COMELEC Resolution No. 9523,23 which allows petitions
for disqualification to be filed “any day after the last day for filing of certificates of candidacy, but not later than
the date of proclamation.” No credence was given to Ejercito’s contention that the petition was mooted by his
proclamation as Governor of Laguna. The COMELEC First Division opined that the case of Sinaca is inapplicable,
because it was not about Sinaca’s eligibility or whether he committed any of the acts enumerated in Section 68 of
the OEC. Consistent with Maquiling v. Commission on Elections,24 it was declared that Ejercito’s garnering of more
votes than San Luis in the May 2013 elections is not tantamount to condonation of any act or acts that he
committed which may be found to be a ground for disqualification or election offense.

The COMELEC First Division settled the substantive issues put forth in the petition for disqualification in this wise:
Anent [San Luis’] first cause of action, [San Luis] presented the Sworn Statement dated [May 7, 2013] of a certain
Mrs. Daisy A. Cornelio, together with the “Orange Card” issued to Mrs. Cornelio, marked respectively as Exhibits
“A-4” and “A-3” as per [San Luis’] Summary of Exhibits – to prove that [Ejercito] committed the act described in
Section 68 (a) of the OEC. After reviewing Mrs. Cornelio’s Sworn Statement, we do not find any averment to the
effect that the Orange Card was given to the affiant to influence or induce her to vote for [Ejercito]. Affiant only
stated that she was given the Orange Card “last April of this year” and that she was “not able to use it during those
times when [she] or one of [her] family members got sick and needed hospital assistance.” Aside from Mrs.
Cornelio’s Sworn Statement, there is no other evidence to support [San Luis’] claim, leading us to reject [San Luis’]
first cause of action.

With respect to the second cause of action, [San Luis] presented Exhibits “B-1” to “B-4”, which are submissions
made by the ABS-CBN Corporation as mandated by Section 6 of Republic Act No. 9006 (“RA 9006” or the “Fair
Election Act”), implemented through Section 9 (a) of Resolution No. 9615. Exhibit “B-3” is an Advertising
Contract between ABS-CBN Corporation and Scenema Concept International, Inc. (“SCI”). The details of the
Contract are as follows:chanroblesvirtuallawlibrary

Payor/Advertiser Scenema Concept International, Inc.

Beneficiary Jeorge “ER” Ejercito Estregan
Broadcast Schedule April 27, 28, May 3, 4, 10 & 11, 2013
Number of Spots 6 spots of 3.5 minutes each
Unit Cost per Spot PhP 3,366,195.04
Total Cost of Contract PhP 20,197,170.25 plus VAT

The Contract contains the signature of [Ejercito] signifying his acceptance of the donation by SCI, the latter
represented by its Executive Vice President, Ms. Maylyn Enriquez. In addition to the advertising contract, Exhibit
“B-4” was submitted, which is a photocopy of an Official Receipt issued by ABS-CBN for the contract, with the
following details:chanroblesvirtuallawlibrary

Date of the Receipt [April 26, 2013]

Received From Scenema Concept International, Inc.
Amount Received PhP 6,409,235.28
Official Receipt No. 278499

Upon verification of the submitted Exhibits “B-1” to “B-4” with this Commission’s Education and Information
Department (EID), the latter having custody of all advertising contracts submitted by broadcast stations and
entities in relation to the [May 13, 2013] National and Local Elections, we find the said Exhibits to be faithful
reproductions of our file copy of the same. A comparison of [Ejercito’s] signature on the Advertising Contract and
that on his Certificate of Candidacy show them to be identical to each other, leading us to the conclusion that
[Ejercito] had indeed accepted the PhP 20,197,170.25 donation in the form of television advertisements to be
aired on ABS-CBN’s Channel 2. Even if we were to assume that only PhP 6,409,235.28 was actually paid out of PhP
20,197,170.25 advertising contract, this amount is still more than PhP 4,576,566.00, which is [Ejercito’s] total
authorized aggregate amount allowed for his election campaign, computed as follows:chanroblesvirtuallawlibrary

Number of registered voters for Authorized expense per voter Total amount of spending allowed
x =
the whole Province of Laguna registered in the constituency for election campaign

1,525,522 registered x PhP 3.00 per voter = PhP 4,576,566.00

While not presented as evidence in this case, we cannot deny the existence of another Advertising Contract dated
[May 8, 2013] for one (1) spot of a 3.5-minute advertisement scheduled for broadcast on [May 9, 2013],
amounting to PhP 3,366,195.05. This Contract also contains the signature of [Ejercito] accepting the donation from
SCI and is accompanied by an ABS-CBN-issued Official Receipt No. 279513 dated [May 7, 2013] in SCI’s name for
PhP 6,409,235.28. If we add the amounts from both contracts, we arrive at a total cost of PhP 23,563,365.29,
which, coincidentally, is the product of:chanroblesvirtuallawlibrary

Number of spots x Unit cost per spot = Total contract cost

Seven (7) spots x PhP 3,366,195.04 = PhP 23,563,365.28

This matches the data gathered by the Commission’s EID from the reports and logs submitted by broadcast
stations as required by the Fair Election Act. According to the 99-page Daily Operations Log for Channel 2
submitted by ABS-CBN covering the period of [April 27, 2013] to [May 11, 2013], [Ejercito’s] 3.5-minute or 210-
second advertisement was aired seven (7) times. The specific details on the dates of airing, program or time slot
when the advertisements were aired, and the time when the advertisements as culled from the 99-page Daily
Operations Log are summarized as thus:chanroblesvirtuallawlibrary

Date aired Program/Time Slot Airtime

28 Apr 2013 TV Patrol Linggo/5:20-5:30 pm 05:54:40 PM
28 Apr 2013 Harapan: Senatorial Debate/9:30-11:30 pm 10:40:13 PM
04 May 2013 TODA MAX/10:30-11:15 pm 11:26:43 PM
05 May 2013 Rated K-Handa Na Ba Kayo/7:15-8:15 pm 08:06:42 PM
09 May 2013 TV Patrol/6:30-7:45 pm 07:35:56 PM
10 May 2013 TV Patrol/6:30-7:45 pm 07:44:50 PM
11 May 2013 TV Patrol Sabado/5:30-6:00 pm 06:12:30 PM

Source: Pages 6, 8, 43, 47, 75, 84, and 93 of ABS-CBN Channel 2 Daily Operations Log for [April 27, 2013] to [May
11, 2013].

Assuming arguendo, that the actual cost of both contracts only amounted to PhP 12,818,470.56 as substantiated
by the two (2) Official Receipts issued by the ABS-CBN on [April 26] and [May 7, 2013], or even if we were only to
consider Exhibit [“B-4”] or the Php 6,409,235.28 payment to ABS-CBN on [April 26, 2013], it nevertheless supports
our finding that [Ejercito] exceeded his authorized expenditure limit of PhP 4,576,566.00 which is a ground for
disqualification under Section 68 (c) and concurrently an election offense pursuant to Section 100 in relation to
Section 262 of the Omnibus Election Code.25
Only Ejercito filed a Verified Motion for Reconsideration before the COMELEC En Banc.26 After the parties’
exchange of pleadings,27 the Resolution of the COMELEC First Division was unanimously affirmed on May 21, 2014.

The COMELEC En Banc agreed with the findings of its First Division that San Luis’ petition is an action to disqualify
Ejercito, reasoning that:
x x x First, the title of the petition indicating that it is a petition for disqualification clearly expresses the objective
of the action. Second, it is manifest from the language of the petition that the causes of action have relied
primarily on Section 68 (a) and (c) of the OEC[,] which are grounds for disqualification x x x. Third, notwithstanding
that the relief portion of the petition sounded vague in its prayer for the disqualification of Ejercito, the allegations
and arguments set forth therein are obviously geared towards seeking his disqualification for having committed
acts listed as grounds for disqualification in Section 68 of OEC. Lastly, as correctly observed by the COMELEC First
Division, San Luis’ Memorandum addresses and clarifies the intention of the petition when it prayed for Ejercito to
“be disqualified and prevented from holding office as Governor of Laguna.” While there is a prayer seeking that
Ejercito be held accountable for having committed election offenses, there can be no doubt that the petition was
primarily for his disqualification.
Section 68 of the OEC expressly grants COMELEC the power to take cognizance of an action or protest seeking the
disqualification of a candidate who has committed any of the acts listed therein from continuing as one, or if he or
she has been elected, from holding office. One ground for disqualification listed in Section 68 is spending in an
election campaign an amount in excess of that allowed by law. It is exactly on said ground that San Luis is seeking
the disqualification of Ejercito. The jurisdiction of COMELEC over the petition, therefore, is clear. 28
The alleged violation of Ejercito’s constitutional right to due process was also not sustained:
Ejercito insists that he was deprived of his right to notice and hearing and was not informed of the true nature of
the case filed against him when San Luis was allegedly allowed in his memorandum to make as substantial
amendment in the reliefs prayed for in his petition. San Luis was allegedly allowed to seek for Ejercito’s
disqualification instead of the filing of an election offense against him.

As discussed above, the allegations in the petition, particularly the causes of action, clearly show that it is not
merely a complaint for an election offense but a disqualification case against Ejercito as well. San Luis’
memorandum merely amplified and clarified the allegations and arguments in his petition. There was no change in
the cause or causes of action. Ejercito[,] therefore, cannot claim that he was not aware of the true nature of the
petition filed against him.

Likewise, Ejercito cannot complain that he was deprived of his right to notice and hearing. He cannot feign
ignorance that the COMELEC First Division, throughout the trial, was hearing the petition as a disqualification case
and not as an election offense case. He was served with Summons with Notice of Conference on [June 4, 2013] and
was given a copy of the petition. He likewise submitted to the jurisdiction of the Commission when he filed
his Verified Answer. He also participated in the Preliminary Conference on [June 27, 2013] wherein he examined
evidence on record and presented his own documentary exhibits. Lastly, he filed a Manifestation (in lieu of
Memorandum) incorporating all his allegations and defenses.

Ejercito contends that amending the reliefs prayed for is prohibited under Section 2, Rule 9 of the 1993 COMELEC
Rules of Procedure. He asserts that the relief prayed for in the memorandum is not the same as that in the
petition. However, a scrutiny of said amendment shows that no new issues were introduced. Moreover, there was
no departure from the causes of action and no material alterations on the grounds of relief. The amendment[,]
therefore[,] is not substantial as it merely rectifies or corrects the true nature of reliefs being prayed for as set
forth in the petition.

The records of the case will show that Ejercito has been afforded the opportunity to contest and rebut all the
allegations against him. He was never deprived of his right to have access to the evidence against him. He was
adequately aware of the nature and implication of the disqualification case against him. Thus, Ejercito cannot say
that he was denied of his constitutional right to due process.

It is important to note at this point that Ejercito, in his motion for reconsideration, deliberately did not tackle the
merit and substance of the charges against him. He limited himself to raising procedural issues. This is despite all
the opportunity that he was given to confront the evidence lodged against him. Therefore, there is no reason for
the COMELEC En Banc to disturb the findings of the COMELEC First Division on whether Ejercito indeed over-spent
in his campaign for governorship of Laguna in the [May 13, 2013] National and Local Elections.29
Anchoring on the case of Lanot v. Commission on Elections,30 the COMELEC En Banc likewise debunked Ejercito’s
assertion that the petition was prematurely and improperly filed on the ground that the filing of an election
offense and the factual determination on the existence of probable cause are required before a disqualification
case based on Section 68 of the OEC may proceed. It held:
As discussed in the case of Lanot vs. Comelec, each of the acts listed as ground for disqualification under Section 68
of the OEC has two aspects – electoral and criminal which may proceed independently from each other, to wit:
x x x The electoral aspect of a disqualification case determines whether the offender should be disqualified from
being a candidate or from holding office. Proceedings are summary in character and require only clear
preponderance of evidence. An erring candidate may be disqualified even without prior determination of
probable cause in a preliminary investigation. The electoral aspect may proceed independently of the criminal
aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate for
an election offense. The prosecutor is the COMELEC, through its Law Department, which determines whether
probable cause exists. If there is probable cause, the COMELEC, through its Law Department, files the criminal
information before the proper court. Proceedings before the proper court demand a full-blown hearing and
require proof beyond reasonable doubt to convict. A criminal conviction shall result in the disqualification of the
offender, which may even include disqualification from holding a future public office.” (Emphasis supplied)31
The petition for disqualification against Ejercito for campaign over-spending before the Commission is heard and
resolved pursuant to the electoral aspect of Section 68 of the OEC. It is an administrative proceeding separate and
distinct from the criminal proceeding through which Ejercito may be made to undergo in order to determine
whether he can be held criminally liable for the same act of over-spending. It is through this administrative
proceeding that this Commission, initially through its divisions, makes a factual determination on the veracity of
the parties’ respective allegations in a disqualification case. There is no need for a preliminary investigation finding
on the criminal aspect of the offenses in Section 68 before the Commission can act on the administrative or
electoral aspect of the offense. All that is needed is a complaint or a petition. As enunciated in Lanot, “(a)n erring
candidate may be disqualified even without prior determination of probable cause in a preliminary investigation.
The electoral aspect may proceed independently of the criminal aspect, and vice-versa.”
Moreover, Ejercito’s reliance on Codilla is misplaced. The COMELEC En Banc opined that the portion of
the Codilla decision that referred to the necessity of the conduct of preliminary investigation pertains to cases
where the offenders are charged with acts not covered by Section 68 of the OEC, and are, therefore, beyond the
ambit of the COMELEC’s jurisdiction. It said that the decision refers to this type of cases as criminal (not
administrative) in nature, and, thus, should be handled through the criminal process.

Further rejected was Ejercito’s argument that the COMELEC lost its jurisdiction over the petition for
disqualification the moment he was proclaimed as the duly-elected Governor of Laguna. For the COMELEC En
Banc, its First Division thoroughly and sufficiently addressed the matter when it relied on Maquiling instead
of Sinaca. It maintained that Section 5 of COMELEC Resolution No. 9523, not COMELEC Resolution No. 2050, 32 is
relevant to the instant case as it states that the COMELEC shall continue the trial and hearing of a pending
disqualification case despite the proclamation of a winner. It was noted that the proper application of COMELEC
Resolution No. 2050 was already clarified in Sunga v. COMELEC.33chanrobleslaw

Finally, the COMELEC En Banc ruled on one of San Luis’ contentions in his Comment/Opposition to Ejercito’s
motion for reconsideration. He argued that he becomes the winner in the gubernatorial election upon the
disqualification of Ejercito. Relying on Maquiling, San Luis declared that he was not the second placer as he
obtained the highest number of valid votes cast from among the qualified candidates. In denying that Maquiling is
on all fours with this case, the COMELEC En Banc said:
In the instant case, Ejercito cannot be considered as a non-candidate by reason of his disqualification under
Section 68 of the OEC. He was a candidate who filed a valid certificate of candidacy which was never cancelled.

Ejercito was a bona fide candidate who was disqualified, not because of any ineligibility existing at the time of the
filing of the certificate of candidacy, but because he violated the rules of candidacy. His disqualifying circumstance,
that is, his having over-spent in his campaign, did not exist at the time of the filing of his certificate of candidacy. It
did not affect the validity of the votes cast in his favor. Notwithstanding his disqualification, he remains the
candidate who garnered the highest number of votes.

Ejercito cannot be on the same footing with Arnado in the Maquiling case. Arnado was disqualified from running
for Mayor of Kauswagan, Lanao Del Sur because he was a dual citizen not qualified to run for election. His
disqualification existed at the time of the filing of the certificate of candidacy. The effect, pursuant to
the Maquiling case, is that the votes he garnered are void, which in turn resulted in having considered the “second
placer” – Maquiling – as the candidate who obtained the highest number of valid votes cast.

San Luis is in a different circumstance. The votes for the disqualified winning candidate remained valid. Ergo, San
Luis, being the second placer in the vote count, remains the second placer. He cannot[,] thus[,] be named the
winner.

Section 6, Rule 25 of the COMELEC Resolution No. 9523, which governs Section 68 petitions for disqualification,
enunciates the rule succinctly, to wit:
Section 6. Effect of Granting of Petition. – In the event a Petition to disqualify a candidate is granted by final
judgment as defined under Section 8 of Rule 23 and the disqualified candidate obtains the highest number of
votes, the candidate with the second highest number of votes cannot be proclaimed and the rule of succession, if
allowed by law, shall be observed. In the event the rule of succession is not allowed, a vacancy shall exist for such
position.34
On May 23, 2014, Ejercito filed before this Court a Petition for certiorari with application for the issuance of
a status quo ante order or temporary restraining order (TRO)/writ of preliminary injunction (WPI).35Without issuing
a TRO/WPI, the Honorable Chief Justice, Maria Lourdes P. A. Sereno, issued on May 28, 2014 an order to
respondents to comment on the petition within a non-extendible period of ten (10) days from notice.36 Such order
was confirmed nunc pro tunc by the Court En Banc on June 3, 2014.37chanrobleslaw

Meantime, on May 26, 2014, Ejercito filed before the COMELEC En Banc an Omnibus Motion to suspend
proceedings and to defer the implementation of the May 21, 2014 Resolution.38 On the same day, San Luis also
filed an Extremely Urgent Motion to Declare COMELEC En Banc Resolution of May 21, 2014 and First Division
Resolution of September 26, 2013 Final and Executory and to Issue Forthwith Writ of Execution or Implementing
Order39 invoking Paragraph 2, Section 8 of COMELEC Resolution No. 9523, in relation to Section 13 (b), Rule 18 of
the COMELEC Rules of Procedure.40 On May 27, 2014, the COMELEC En Banc issued an Order denying Ejercito’s
omnibus motion, granted San Luis’ extremely urgent motion, and directed the Clerk of the Commission to issue the
corresponding writ of execution.41On even date, Vice-Governor Hernandez was sworn in as the Governor of
Laguna at the COMELEC Main Office in Manila. The service of the writ was deemed completed and validly served
upon Ejercito on May 28, 2014.42chanrobleslaw

In his petition before Us, Ejercito raised the following issues for resolution:
THE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION IN THAT:chanroblesvirtuallawlibrary

(I) IT VIOLATED THE RIGHT OF PETITIONER TO DUE PROCESS WHEN IT RULED FOR THE DISQUALIFICATION OF
PETITIONER EVEN IF IT WAS NEVER PRAYED FOR IN THE PETITION. WORSE, THERE IS YET NO FINDING OF GUILT BY
A COMPETENT COURT OR A FINDING OF FACT STATING THAT PETITIONER ACTUALLY COMMITTED THE ALLEGED
ELECTION OFFENSE OF OVERSPENDING;

(II) IT RELIED ON A DOCUMENTARY EXHIBIT (ADVERTISING CONTRACT) WHICH WAS NOT EVEN FORMALLY
OFFERED AS EVIDENCE; [AND]

(III) IT DISQUALIFIED PETITIONER FOR AN ACT DONE BY A THIRD PARTY WHO SIMPLY EXERCISED ITS RIGHT TO FREE
EXPRESSION WITHOUT THE KNOWLEDGE AND CONSENT OF PETITIONER[.] 43
The petition is unmeritorious.

A special civil action for certiorari under Rule 64, in relation to Rule 65, is an independent action that is available
only if there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. 44 It is a
legal remedy that is limited to the resolution of jurisdictional issues and is not meant to correct simple errors of
judgment.45 More importantly, it will only prosper if grave abuse of discretion is alleged and is actually proved to
exist.46
Grave abuse of discretion arises when a lower court or tribunal violates the Constitution, the law or existing
jurisprudence. It means such capricious and whimsical exercise of judgment as would amount to lack of
jurisdiction; it contemplates a situation where the power is exercised in an arbitrary or despotic manner by reason
of passion or personal hostility, so patent and gross as to amount to an evasion of positive duty or a virtual refusal
to perform the duty enjoined by law. x x x.47
Ejercito failed to prove that the COMELEC rendered its assailed Resolution with grave abuse of discretion.
We now explain.

The petition filed by San Luis against Ejercito is for the latter’s disqualification and prosecution for election
offense

Ejercito insists that his alleged acts of giving material consideration in the form of “Orange Cards” and election
overspending are considered as election offenses under Section 35 of COMELEC Resolution No. 9615,48 in relation
to Section 1349 of R.A. No. 9006, and punishable under Section 26450 of the OEC. Considering that San Luis’ petition
partakes of the nature of a complaint for election offenses, the COMELEC First Division has no jurisdiction over the
same based on COMELEC Resolution No. 938651 and Section 26552 of the OEC.

Still, Ejercito contends that the COMELEC erroneously sanctioned a change in San Luis’ cause of action by the mere
expedient of changing the prayer in the latter’s Memorandum. According to him, San Luis’ additional prayer for
disqualification in the Memorandum is a substantial amendment to the Petition as it constitutes a material
deviation from the original cause of action – from a complaint for election offenses to a petition for
disqualification. Since such substantial amendment was effected after the case was set for hearing, Ejercito
maintains that the same should have been allowed only with prior leave of the COMELEC First Division pursuant to
Section 2, Rule 953 of the COMELEC Rules of Procedure, which San Luis never did.

The arguments are untenable.

The purpose of a disqualification proceeding is to prevent the candidate from running or, if elected, from serving,
or to prosecute him for violation of the election laws.54 A petition to disqualify a candidate may be filed pursuant
to Section 68 of the OEC, which states:
SEC. 68. Disqualifications. -- Any candidate who, in an action or protest in which he is a party is declared by final
decision of a competent court guilty of, or found by the Commission of having: (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of
that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97
and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall
be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who
is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country
in accordance with the residence requirement provided for in the election laws.
The prohibited acts covered by Section 68 (e) refer to election campaign or partisan political activity outside the
campaign period (Section 80); removal, destruction or defacement of lawful election propaganda (Section 83);
certain forms of election propaganda (Section 85); violation of rules and regulations on election propaganda
through mass media; coercion of subordinates (Section 261 [d]); threats, intimidation, terrorism, use of fraudulent
device or other forms of coercion (Section 261 [e]); unlawful electioneering (Section 261 [k]); release,
disbursement or expenditure of public funds (Section 261 [v]); solicitation of votes or undertaking any propaganda
on the day of the election within the restricted areas (Section 261 [cc], sub-par.6). All the offenses mentioned in
Section 68 refer to election offenses under the OEC, not to violations of other penal laws. In other words, offenses
that are punished in laws other than in the OEC cannot be a ground for a Section 68 petition. Thus, We have held:
x x x [T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the
[OEC]. All other election offenses are beyond the ambit of COMELEC jurisdiction. They are criminal and not
administrative in nature. Pursuant to Sections 265 and 268 of the [OEC], the power of the COMELEC is confined to
the conduct of preliminary investigation on the alleged election offenses for the purpose of prosecuting the
alleged offenders before the regular courts of justice, viz:
“Section 265. Prosecution. – The Commission shall, through its duly authorized legal officers, have the exclusive
power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute
the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided,
however, That in the event that the Commission fails to act on any complaint within four months from its filing, the
complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper
investigation and prosecution, if warranted.

xxxxxxxxx
Section 268. Jurisdiction. – The regional trial court shall have the exclusive original jurisdiction to try and decide
any criminal action or proceeding for violation of this Code, except those relating to the offense of failure to
register or failure to vote which shall be under the jurisdictions of metropolitan or municipal trial courts. From the
decision of the courts, appeal will lie as in other criminal cases.” 55
In the case at bar, the COMELEC First Division and COMELEC En Banc correctly ruled that the petition filed by San
Luis against Ejercito is not just for prosecution of election offense but for disqualification as well. Indeed, the
following are clear indications:

1. The title of San Luis’ petition shows that the case was brought under Rule 25 of the COMELEC Rules of
Procedure, as amended by COMELEC Resolution No. 9523. 56 This expresses the objective of the action
since Rule 25 is the specific rule governing the disqualification of candidates.

2. The averments of San Luis’ petition rely on Section 68 (a) and (c) of the OEC as grounds for its causes of
action. Section 68 of the OEC precisely enumerates the grounds for the disqualification of a candidate for
elective position and provides, as penalty, that the candidate shall be disqualified from continuing as such,
or if he or she has been elected, from holding the office.

3. Paragraph 2 of San Luis’ prayer in the petition states that “[in the event that [Ejercito] will be able to get a
majority vote of the electorate of the Province of Laguna on May 13, 2013, his proclamation be
suspended until further order of the Honorable Commission.” San Luis reiterated this plea when he later
filed a Very Urgent Ex-Parte Motion to Issue Suspension of Possible Proclamation of Respondent and
Supplemental to the Very Urgent Ex-Parte Motion to Issue Suspension of Possible Proclamation of
Respondent. The relief sought is actually pursuant to Section 657 of R.A. No. 6646 and Section 5 Rule
2558 of COMELEC Resolution No. 9523, both of which pertain to the effect of a disqualification case when
the petition is unresolved by final judgment come election day.

4. San Luis’ Memorandum emphasized that the case is a “Special Action for Disqualification,” praying that
“[t]he Petition BE GRANTED [and] x x x [Ejercito] BE DISQUALIFIED, and PREVENTED from further holding
office as Governor of Laguna.”

With the foregoing, Ejercito cannot feign ignorance of the true nature and intent of San Luis’ petition. This
considering, it is unnecessary for Us to discuss the applicability of Section 2, Rule 9 of the COMELEC Rules of
Procedure, there being no substantial amendment to San Luis’ petition that constitutes a material deviation from
his original causes of action. Likewise, COMELEC Resolution No. 9386 and Section 265 of the OEC do not apply
since both refer solely to the prosecution of election offenses. Specifically, COMELEC Resolution No. 9386 is an
amendment to Rule 34 of the COMELEC Rules of Procedure on the prosecution of election offenses, while Section
265 of the OEC is found under Article XXII of said law pertaining also to election offenses.

The conduct of preliminary investigation is not required in the resolution of the electoral aspect of a
disqualification case

Assuming, arguendo, that San Luis’ petition was properly instituted as an action for disqualification, Ejercito asserts
that the conduct of preliminary investigation to determine whether the acts enumerated under Section 68 of the
OEC were indeed committed is a requirement prior to actual disqualification. He posits that Section 5, Rule 25 of
COMELEC Resolution No. 9523 is silent on the matter of preliminary investigation; hence, the clear import of this is
that the necessity of preliminary investigation provided for in COMELEC Resolution No. 2050 remains undisturbed
and continues to be in full force and effect.
We are not persuaded.

Section 5, Rule 25 of COMELEC Resolution No. 9523 states:

Section 5. Effect of Petition if Unresolved Before Completion of Canvass. – If a Petition for Disqualification is
unresolved by final judgment on the day of elections, the petitioner may file a motion with the Division or
Commission En Banc where the case is pending, to suspend the proclamation of the candidate concerned,
provided that the evidence for the grounds to disqualify is strong. For this purpose, at least three (3) days prior to
any election, the Clerk of the Commission shall prepare a list of pending cases and furnish all Commissioners copies
of said the list.

In the event that a candidate with an existing and pending Petition to disqualify is proclaimed winner, the
Commission shall continue to resolve the said Petition.
It is expected that COMELEC Resolution No. 9523 is silent on the conduct of preliminary investigation because it
merely amended, among others, Rule 25 of the COMELEC Rules of Procedure, which deals with disqualification of
candidates. In disqualification cases, the COMELEC may designate any of its officials, who are members of the
Philippine Bar, to hear the case and to receive evidence only in cases involving barangay officials. 59 As
aforementioned, the present rules of procedure in the investigation and prosecution of election offenses in the
COMELEC, which requires preliminary investigation, is governed by COMELEC Resolution No. 9386. Under said
Resolution, all lawyers in the COMELEC who are Election Officers in the National Capital Region ("NCR"), Provincial
Election Supervisors, Regional Election Attorneys, Assistant Regional Election Directors, Regional Election Directors
and lawyers of the Law Department are authorized to conduct preliminary investigation of complaints involving
election offenses under the election laws which may be filed directly with them, or which may be indorsed to them
by the COMELEC.60chanrobleslaw

Similarly, Ejercito’s reliance on COMELEC Resolution No. 2050 is misplaced. COMELEC Resolution No. 2050, which
was adopted on November 3, 1988, reads:
WHEREAS, there remain pending before the Commission, a number of cases of disqualification filed by virtue of
the provisions of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. 6646, otherwise known as
the Electoral Reforms Law of 1987;

WHEREAS, opinions of the members of the Commission on matters of procedure in dealing with cases of this
nature and the manner of disposing of the same have not been uniform;

WHEREAS, in order to avoid conflicts of opinion in the disposition [of] disqualification cases contemplated under
Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act 6646, there is a strongly felt need to
lay down a definite policy in the disposition of this specific class of disqualification cases;

NOW, THEREFORE, on motion duly seconded, the Commission en banc:chanroblesvirtuallawlibrary

RESOLVED, as it hereby resolves, to formulate the following rules governing the disposition of cases of
disqualification filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. No. 6646,
otherwise known as the Electoral Reforms Law of 1987:chanroblesvirtuallawlibrary

1. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds specifically
enumerated under Section 68 of the Omnibus Election Code, filed directly with the Commission before an election
in which the respondent is a candidate, shall be inquired into by the Commission for the purpose of determining
whether the acts complained of have in fact been committed. Where the inquiry by the Commission results in a
finding before election, that the respondent candidate did in fact commit the acts complained, the Commission
shall order the disqualification of the respondent candidate from continuing as such candidate.

In case such complaint was not resolved before the election, the Commission may motu proprio, or [on] motion of
any of the parties, refer the complaint to the [Law] Department of the Commission as the instrument of the latter
in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal
infractions of the election laws. Such recourse may be availed of irrespective of whether the respondent has been
elected or has lost in the election.

2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code in relation to Section 6 of
Rep. Act No. 6646 filed after the election against a candidate who has already been proclaimed as winner shall be
dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the
Law Department of the Commission.

Where a similar complaint is filed after election but before proclamation of the respondent candidate, the
complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for
preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima
facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the
complainant may file a petition for suspension of the proclamation of the respondent with the court before which
the criminal case is pending and the said court may order the suspension of the proclamation if the evidence of
guilt is strong.

3. The Law Department shall terminate the preliminary investigation within thirty (30) days from receipt of the
referral and shall submit its study, report and recommendation to the Commission en banc within five (5) days
from the conclusion of the preliminary investigation. If it makes a prima facie finding of guilt, it shall submit with
such study the Information for filing with the appropriate court. 61
In Bagatsing v. COMELEC,62 the Court stated that the above-quoted resolution covers two (2) different scenarios:
First, as contemplated in paragraph 1, a complaint for disqualification filed before the election which must be
inquired into by the COMELEC for the purpose of determining whether the acts complained of have in fact been
committed. Where the inquiry results in a finding before the election, the COMELEC shall order the candidate's
disqualification. In case the complaint was not resolved before the election, the COMELEC may motu propio or on
motion of any of the parties, refer the said complaint to the Law Department of the COMELEC for preliminary
investigation.

Second, as laid down in paragraph 2, a complaint for disqualification filed after the electionagainst a candidate (a)
who has not yet been proclaimed as winner, or (b) who has already been proclaimed as winner. In both cases, the
complaint shall be dismissed as a disqualification case but shall be referred to the Law Department of the
COMELEC for preliminary investigation. However, if before proclamation, the Law Department makes a prima
facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the
complainant may file a petition for suspension of the proclamation of the respondent with the court before which
the criminal case is pending and the said court may order the suspension of the proclamation if the evidence of
guilt is strong.63
However, with respect to Paragraph 1 of COMELEC Resolution No. 2050, which is the situation in this case, We
held in Sunga:
x x x Resolution No. 2050 as interpreted in Silvestre v. Duavit infringes on Sec. 6 of RA No. 6646, which
provides:chanroblesvirtuallawlibrary

SEC. 6. Effects of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared
by final judgment before an election to be disqualified and he is voted for and receives the winning number of
votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his guilt is strong (italics supplied).
Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case
to its conclusion, i.e., until judgment is rendered thereon. The word “shall” signifies that this requirement of the
law is mandatory, operating to impose a positive duty which must be enforced. The implication is that the
COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in
providing for the outright dismissal of the disqualification case which remains unresolved after the
election, Silvestre v. Duavit in effect disallows what RA No. 6646 imperatively requires. This amounts to a quasi-
judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond
the scope of its authority. Interpretative rulings of quasi-judicial bodies or administrative agencies must always be
in perfect harmony with statutes and should be for the sole purpose of carrying their general provisions into effect.
By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited. Indeed, a
quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress. Hence, in case of
a discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails.

Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election
offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case
against him simply because the investigating body was unable, for any reason caused upon it, to determine before
the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring
aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission
of election offenses would not be decided before the election. This scenario is productive of more fraud which
certainly is not the main intent and purpose of the law.64chanrobleslaw

The “exclusive power [of the COMELEC] to conduct a preliminary investigation of all cases involving criminal
infractions of the election laws” stated in Par. 1 of COMELEC Resolution No. 2050 pertains to the criminal aspect of
a disqualification case. It has been repeatedly underscored that an election offense has its criminal and electoral
aspects. While its criminal aspect to determine the guilt or innocence of the accused cannot be the subject of
summary hearing, its electoral aspect to ascertain whether the offender should be disqualified from office can be
determined in an administrative proceeding that is summary in character. This Court said in Sunga:
It is worth to note that an election offense has criminal as well as electoral aspects. Its criminal aspect involves the
ascertainment of the guilt or innocence of the accused candidate. Like in any other criminal case, it usually entails
a full-blown hearing and the quantum of proof required to secure a conviction is beyond reasonable doubt. Its
electoral aspect, on the other hand, is a determination of whether the offender should be disqualified from office.
This is done through an administrative proceeding which is summary in character and requires only a clear
preponderance of evidence. Thus, under Sec. 4 of the COMELEC Rules of Procedure, petitions for disqualification
"shall be heard summarily after due notice." It is the electoral aspect that we are more concerned with, under
which an erring candidate may be disqualified even without prior criminal conviction. 65
and equally in Lanot:
x x x The electoral aspect of a disqualification case determines whether the offender should be disqualified from
being a candidate or from holding office. Proceedings are summary in character and require only clear
preponderance of evidence. An erring candidate may be disqualified even without prior determination of probable
cause in a preliminary investigation. The electoral aspect may proceed independently of the criminal aspect, and
vice-versa.

The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate for
an election offense. The prosecutor is the COMELEC, through its Law Department, which determines whether
probable cause exists. If there is probable cause, the COMELEC, through its Law Department, files the criminal
information before the proper court. Proceedings before the proper court demand a full-blown hearing and
require proof beyond reasonable doubt to convict. A criminal conviction shall result in the disqualification of the
offender, which may even include disqualification from holding a future public office.

The two aspects account for the variance of the rules on disposition and resolution of disqualification cases filed
before or after an election. When the disqualification case is filed before the elections, the question of
disqualification is raised before the voting public. If the candidate is disqualified after the election, those who
voted for him assume the risk that their votes may be declared stray or invalid. There is no such risk if the petition
is filed after the elections. x x x.66
We cannot accept Ejercito’s argument that Lanot did not categorically pronounce that the conduct of a preliminary
investigation exclusively pertains to the criminal aspect of an action for disqualification or that a factual finding by
the authorized legal officers of the COMELEC may be dispensed with in the proceedings for the administrative
aspect of a disqualification case. According to him, a close reading of said case would reveal that upon filing of the
petition for disqualification with the COMELEC Division, the latter referred the matter to the Regional Election
Director for the purpose of preliminary investigation; therefore, Lanot contemplates two referrals for the conduct
of investigation – first, to the Regional Election Director, prior to the issuance of the COMELEC First Division’s
resolution, and second, to the Law Department, following the reversal by the COMELEC En Banc.

For easy reference, the factual antecedents of Lanot are as follows:chanroblesvirtuallawlibrary

On March 19, 2004, a little less than two months before the May 10, 2004 elections, Henry P. Lanot, et al. filed a
Petition for Disqualification under Sections 68 and 80 of the OEC against then incumbent Pasig City Mayor Vicente
P. Eusebio. National Capital Region Director Esmeralda Amora-Ladra conducted hearings on the petition. On May
4, 2004, she recommended Eusebio’s disqualification and the referral of the case to the COMELEC Law Department
for the conduct of a preliminary investigation on the possible violation of Section 261 (a) of the OEC. When the
COMELEC First Division issued a resolution adopting Director Ladra’s recommendations on May 5, 2004, then
COMELEC Chairman Benjamin S. Abalos informed the pertinent election officers through an Advisory dated May 8,
2004. Eusebio filed a Motion for Reconsideration on May 9, 2004. On election day, Chairman Abalos issued a
memorandum to Director Ladra enjoining her from implementing the May 5, 2004 COMELEC First Division
resolution. The petition for disqualification was not yet finally resolved at the time of the elections. Eusebio's votes
were counted and canvassed. After which, Eusebio was proclaimed as the winning candidate for city mayor. On
August 20, 2004, the COMELEC En Banc annulled the COMELEC First Division's order to disqualify Eusebio and
referred the case to the COMELEC Law Department for preliminary investigation.

When the issue was elevated to Us, the Court agreed with Lanot that the COMELEC En Banc committed grave
abuse of discretion when it ordered the dismissal of the disqualification case pending preliminary investigation of
the COMELEC Law Department. Error was made when it ignored the electoral aspect of the disqualification case by
setting aside the COMELEC First Division's resolution and referring the entire case to the COMELEC Law
Department for the criminal aspect. We noted that COMELEC Resolution No. 2050, upon which the COMELEC En
Banc based its ruling, is procedurally inconsistent with COMELEC Resolution No. 6452, which was the governing
rule at the time. The latter resolution delegated to the COMELEC Field Officials the hearing and reception of
evidence of the administrative aspect of disqualification cases in the May 10, 2004 National and Local Elections. In
marked contrast, in the May 2013 elections, it was only in cases involving barangay officials that the
COMELEC may designate any of its officials, who are members of the Philippine Bar, to hear the case and to
receive evidence.67chanrobleslaw

The COMELEC En Banc properly considered as evidence the Advertising Contract dated May 8, 2013

Ejercito likewise asserts that the Advertising Contract dated May 8, 2013 should not have been relied upon by the
COMELEC. First, it was not formally offered in evidence pursuant to Section 34, Rule 132 68of the Rules and he was
not even furnished with a copy thereof, depriving him of the opportunity to examine its authenticity and due
execution and object to its admissibility. Second, even if Section 34, Rule 132 does not apply, administrative bodies
exercising quasi-judicial functions are nonetheless proscribed from rendering judgment based on evidence that
was never presented and could not be controverted. There is a need to balance the relaxation of the rules of
procedure with the demands of administrative due process, the tenets of which are laid down in the seminal case
of Ang Tibay v. Court of Industrial Relations.69 And third, the presentation of the advertising contracts, which are
highly disputable and on which no hearing was held for the purpose of taking judicial notice in accordance with
Section 3, Rule 12970 of the Rules, cannot be dispensed with by COMELEC’s claim that it could take judicial notice.

Contrary to Ejercito’s claim, Section 34, Rule 132 of the Rules is inapplicable. Section 4, Rule 1 71 of the Rules of
Court is clear enough in stating that it shall not apply to election cases except by analogy or in a suppletory
character and whenever practicable and convenient. In fact, nowhere from COMELEC Resolution No. 9523 requires
that documentary evidence should be formally offered in evidence. 72 We remind again that the electoral aspect of
a disqualification case is done through an administrative proceeding which is summary in character.

Granting, for argument’s sake, that Section 4, Rule 1 of the Rules of Court applies, there have been instances when
We suspended the strict application of the rule in the interest of substantial justice, fairness, and equity.73 Since
rules of procedure are mere tools designed to facilitate the attainment of justice, it is well recognized that the
Court is empowered to suspend its rules or to exempt a particular case from the application of a general rule,
when the rigid application thereof tends to frustrate rather than promote the ends of justice. 74 The fact is, even
Sections 3 and 4, Rule 1 of the COMELEC Rules of Procedure fittingly declare that “[the] rules shall be liberally
construed in order to promote the effective and efficient implementation of the objectives of ensuring the holding
of free, orderly, honest, peaceful and credible elections and to achieve just, expeditious and inexpensive
determination and disposition of every action and proceeding brought before the Commission” and that “[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.” This Court said in Hayudini v. Commission on
Elections:75
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.76
Further, Ejercito’s dependence on Ang Tibay is weak. The essence of due process is simply an opportunity to be
heard, or, as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek
for a reconsideration of the action or ruling complained of. 77 Any seeming defect in its observance is cured by the
filing of a motion for reconsideration and denial of due process cannot be successfully invoked by a party who had
the opportunity to be heard thereon.78 In this case, it is undisputed that Ejercito filed a motion for reconsideration
before the COMELEC En Banc. Despite this, he did not rebut the authenticity and due execution of the advertising
contracts when he decided not to discuss the factual findings of the COMELEC First Division on the alleged ground
that it may be construed as a waiver of the jurisdictional issues that he raised. 79chanrobleslaw

We agree with San Luis and the Office of the Solicitor General that, pursuant to Section 2, Rule 129,80the COMELEC
has the discretion to properly take judicial notice of the Advertising Contract dated May 8, 2013. In accordance
with R.A. No. 9006, the COMELEC, through its Campaign Finance Unit, is empowered to:

a. Monitor fund raising and spending activities;

b. Receive and keep reports and statements of candidates, parties, contributors and election contractors,
and advertising contracts of mass media entities;

c. Compile and analyze the reports and statements as soon as they are received and make an initial
determination of compliance;

d. Develop and manage a recording system for all reports, statements, and contracts received by it and to
digitize information contained therein;

e. Publish the digitized information gathered from the reports, statements and contracts and make them
available to the public;

f. Develop a reportorial and monitoring system;

g. Audit all reports, statements and contracts and determine compliance by the candidates, parties,
contributors, and election contractors, including the inspection of Books and records of candidates,
parties and mass media entities and issue subpoenas in relation thereto and submit its findings to the
Commission En Banc;
 h. Coordinate with and/or assist other departments/offices of the Commission receiving related reports on
Campaign Finance including prosecution of violators and collection of fines and/or imposition of perpetual
disqualification; and

i. Perform other functions as ordered by the Commission.81

The COMELEC may properly take and act on the advertising contracts without further proof from the parties
herein. Aside from being considered as an admission82 and presumed to be proper submissions from them, the
COMELEC already has knowledge of the contracts for being ascertainable from its very own records. Said contracts
are ought to be known by the COMELEC because of its statutory function as the legal custodian of all advertising
contracts promoting or opposing any candidate during the campaign period. As what transpired in this case, the
COMELEC has the authority and discretion to compare the submitted advertising contracts with the certified true
copies of the broadcast logs, certificates of performance or other analogous records which a broadcast station or
entity is required to submit for the review and verification of the frequency, date, time and duration of
advertisements aired.

To be precise, R.A. No. 9006 provides:

Sec. 4. Requirements for Published or Printed and Broadcast Election Propaganda. –
xxxx

4.3 Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be printed,
published, broadcast or exhibited without the written acceptance by the said candidate or political party. Such
written acceptance shall be attached to the advertising contract and shall be submitted to the COMELEC as
provided in Subsection 6.3 hereof.
Sec. 6. Equal Access to Media Time and Space. – All registered parties and bona fidecandidates shall have equal
access to media time and space. The following guidelines may be amplified on by the COMELEC:
xxxx

6.2

xxxx

(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. x x
x.
The implementing guidelines of the above-quoted provisions are found in Rule 5 of COMELEC Resolution No. 9476
–
Section 2. Submission of Copies of Advertising Contracts. – All media entities shall submit a copy of its advertising
and or broadcast contracts, media purchase orders, booking orders, or other similar documents to the Commission
through its Campaign Finance Unit, accompanied by a summary report in the prescribed form (Annex “E”) together
with official receipts issued for advertising, promoting or opposing a party, or the candidacy of any person for
public office, within five (5) days after its signing, through:
a. For Media Entities in the NCR
The Education and Information Department (EID), which shall furnish copies thereof to the Campaign Finance Unit
of the Commission.

b. For Media Entities outside of the NCR

The City/Municipal Election Officer (EO) concerned who shall furnish copies thereof to the Education and
Information Department of the Commission within five (5) days after the campaign periods. The EID shall furnish
copies thereof to the Campaign Finance Unit of the Commission.cralawred

xxxx

It shall be the duty of the EID to formally inform media entities that the latter’s failure to comply with the
mandatory provisions of this Section shall be considered an election offense punishable pursuant to Section 13 of
Republic Act No. 9006. [RA 9006, Secs. 6.3 and 13]
and in COMELEC Resolution No. 9615 –
SECTION 9. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. – All
parties and bona fide candidates shall have equal access to media time and space for their election propaganda
during the campaign period subject to the following requirements and/or limitations:
a. Broadcast Election Propaganda

xxx

Provided, further, that a copy of the broadcast advertisement contract be furnished to the Commission, thru the
Education and Information Department, within five (5) days from contract signing.cralawred

xxx

d. Common requirements/limitations:chanroblesvirtuallawlibrary

xxx

(3) For the above purpose, each broadcast entity and website owner or administrator shall submit to the
Commission a certified true copy of its broadcast logs, certificates of performance, or other analogous
record, including certificates of acceptance as required in Section 7(b) of these Guidelines, for the review and
verification of the frequency, date, time and duration of advertisements aired for any candidate or party
through:chanroblesvirtuallawlibrary

For Broadcast Entities in the NCR –

The Education and Information Department (EID) which in turn shall furnish copies thereof to the Campaign
Finance Unit (CFU) of the Commission within five days from receipt thereof.

For Broadcast Entities outside of the NCR –

The City/Municipal Election Officer (EO) concerned, who in turn, shall furnish copies thereof to the Education and
Information Department (EID) of the Commission which in turn shall furnish copies thereof to the Campaign
Finance Unit (CFU) of the Commission within five (5) days from the receipt thereof.

For website owners or administrators –

The City/Municipal Election Officer (EO) concerned, who in turn, shall furnish copies thereof to the Education and
Information Department (EID) of the Commission which in turn shall furnish copies thereof to the Campaign
Finance Unit (CFU) of the Commission within five (5) days from the receipt thereof.
All broadcast entities shall preserve their broadcast logs for a period of five (5) years from the date of broadcast for
submission to the Commission whenever required.

Certified true copies of broadcast logs, certificates of performance, and certificates of acceptance, or other
analogous record shall be submitted, as follows:chanroblesvirtuallawlibrary

3 weeks after start of

1st Report March 4 - 11
campaign period
Candidates for National 2nd Report 3 weeks after 1st filing week April 3 - 10
Positions 3rd Report 1 week before election day May 2 - 9
Last Report Election week May 14 - 17
1 week after start of
1st Report April 15 - 22
campaign period
Candidates for Local 2nd Report 1 week after 1st filing week April 30 - May 8
Positions 3rd Report Election week May 9 - 15
Last Report 1 week after election day May 16 - 22
For subsequent elections, the schedule for the submission of reports shall be prescribed by the Commission.
Ejercito should be disqualified for spending in his election campaign an amount in excess of what is allowed by
the OEC

Ejercito claims that the advertising contracts between ABS-CBN Corporation and Scenema Concept International,
Inc. were executed by an identified supporter without his knowledge and consent as, in fact, his signature thereon
was obviously forged. Even assuming that such contract benefited him, Ejercito alleges that he should not be
penalized for the conduct of third parties who acted on their own without his consent. Citing Citizens United v.
Federal Election Commission83 decided by the US Supreme Court, he argues that every voter has the right to
support a particular candidate in accordance with the free exercise of his or her rights of speech and of expression,
which is guaranteed in Section 4, Article III of the 1987 Constitution.84 He believes that an advertising contract paid
for by a third party without the candidate’s knowledge and consent must be considered a form of political speech
that must prevail against the laws suppressing it, whether by design or inadvertence. Further, Ejercito advances
the view that COMELEC Resolution No. 947685 distinguishes between “contribution” and “expenditure” and makes
no proscription on the medium or amount of contribution. 86 He also stresses that it is clear from COMELEC
Resolution No. 9615 that the limit set by law applies only to election expenditures of candidates and not to
contributions made by third parties. For Ejercito, the fact that the legislature imposes no legal limitation on
campaign donations is presumably because discussion of public issues and debate on the qualifications of
candidates are integral to the operation of the government.

We refuse to believe that the advertising contracts between ABS-CBN Corporation and Scenema Concept
International, Inc. were executed without Ejercito’s knowledge and consent. As found by the COMELEC First
Division, the advertising contracts submitted in evidence by San Luis as well as those in legal custody of the
COMELEC belie his hollow assertion. His express conformity to the advertising contracts is actually a must because
non-compliance is considered as an election offense.87chanrobleslaw

Notably, R.A. No. 9006 explicitly directs that broadcast advertisements donated to the candidate shall not be
broadcasted without the written acceptance of the candidate, which shall be attached to the advertising contract
and shall be submitted to the COMELEC, and that, in every case, advertising contracts shall be signed by the donor,
the candidate concerned or by the duly-authorized representative of the political party.88 Conformably with the
mandate of the law, COMELEC Resolution No. 9476 requires that election propaganda materials donated to a
candidate shall not be broadcasted unless it is accompanied by the written acceptance of said candidate, which
shall be in the form of an official receipt in the name of the candidate and must specify the description of the items
donated, their quantity and value, and that, in every case, the advertising contracts, media purchase orders or
booking orders shall be signed by the candidate concerned or by the duly authorized representative of the party
and, in case of a donation, should be accompanied by a written acceptance of the candidate, party or their
authorized representatives.89 COMELEC Resolution No. 9615 also unambiguously states that it shall be unlawful to
broadcast any election propaganda donated or given free of charge by any person or broadcast entity to a
candidate without the written acceptance of the said candidate and unless they bear and be identified by the
words “airtime for this broadcast was provided free of charge by” followed by the true and correct name and
address of the donor.90chanrobleslaw

This Court cannot give weight to Ejercito’s representation that his signature on the advertising contracts was a
forgery. The issue is a belated claim, raised only for the first time in this petition for certiorari. It is a rudimentary
principle of law that matters neither alleged in the pleadings nor raised during the proceedings below cannot be
ventilated for the first time on appeal before the Supreme Court. 91 It would be offensive to the basic rules of fair
play and justice to allow Ejercito to raise an issue that was not brought up before the COMELEC. 92 While it is true
that litigation is not a game of technicalities, it is equally true that elementary considerations of due process
require that a party be duly apprised of a claim against him before judgment may be rendered. 93chanrobleslaw

Likewise, whether the advertising contracts were executed without Ejercito’s knowledge and consent, and
whether his signatures thereto were fraudulent, are issues of fact. Any factual challenge has no place in a Rule 65
petition. This Court is not a trier of facts and is not equipped to receive evidence and determine the truth of factual
allegations.94 Instead, the findings of fact made by the COMELEC, or by any other administrative agency exercising
expertise in its particular field of competence, are binding on the Court. As enunciated in Juan v. Commission on
Election:95
Findings of facts of administrative bodies charged with their specific field of expertise, are afforded great weight by
the courts, and in the absence of substantial showing that such findings are made from an erroneous estimation of
the evidence presented, they are conclusive, and in the interest of stability of the governmental structure, should
not be disturbed. The COMELEC, as an administrative agency and a specialized constitutional body charged with
the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall, has more than enough expertise in its field that its findings or conclusions are
generally respected and even given finality. x x x.96
Having determined that the subject TV advertisements were done and broadcasted with Ejercito’s consent, it
follows that Citizens United does not apply. In said US case, a non-profit corporation sued the Federal Election
Commission, assailing, among others, the constitutionality of a ban on corporate independent expenditures for
electioneering communications under 2 U.S.C.S. § 441b. The corporation released a documentary film unfavorable
of then-Senator Hillary Clinton, who was a candidate for the Democratic Party's Presidential nomination. It wanted
to make the film available through video-on-demand within thirty (30) days of the primary elections, and it
produced advertisements to promote the film. However, federal law prohibits all corporations – including non-
profit advocacy corporations – from using their general treasury funds to make independent expenditures for
speech that is an "electioneering communication" 97 or for speech that expressly advocates the election or defeat
of a candidate within thirty (30) days of a primary election and sixty (60) days of a general election. The US
Supreme Court held that the ban imposed under § 441b on corporate independent expenditures violated the First
Amendment98 because the Government could not suppress political speech on the basis of the speaker's identity
as a non-profit or for-profit corporation. It was opined:
Section 441b's prohibition on corporate independent expenditures is thus a ban on speech. As a "restriction on the
amount of money a person or group can spend on political communication during a campaign," that statute
"necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached." Buckley v. Valeo, 424 U.S. 1, 19, 96 S. Ct. 612, 46 L. Ed. 2d 659
(1976) (per curiam). Were the Court to uphold these restrictions, the Government could repress speech by
silencing certain voices at any of the various points in the speech process. See McConnell, supra, at 251, 124 S. Ct.
619, 517 L. Ed. 2d 491(opinion of Scalia, J.) (Government could repress speech by "attacking all levels of the
production and dissemination of ideas," for "effective public communication requires the speaker to make use of
the services of others"). If § 441b applied to individuals, no one would believe that it is merely a time, place, or
manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems
to be suspect.
Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.
See Buckley, supra, at 14-15, 96 S. Ct. 612, 46 L. Ed. 2d 659("In a republic where the people are sovereign, the
ability of the citizenry to make informed choices among candidates for office is essential"). The right of citizens to
inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-
government and a necessary means to protect it. The First Amendment"'has its fullest and most urgent application'
to speech uttered during a campaign for political office." Eu v. San Francisco County Democratic Central Comm.,
489 U.S. 214, 223, 109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272,
91 S. Ct. 621, 28 L. Ed. 2d 35 (1971)); see Buckley, supra, at 14, 96 S. Ct. 612, 46 L. Ed. 2d 659 ("Discussion of public
issues and debate on the qualifications of candidates are integral to the operation of the system of government
established by our Constitution").

For these reasons, political speech must prevail against laws that would suppress it, whether by design or
inadvertence. Laws that burden political speech are "subject to strict scrutiny," which requires the Government to
prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." WRTL,
551 U.S., at 464, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (opinion of Roberts, C. J.). While it might be maintained that
political speech simply cannot be banned or restricted as a categorical matter, see Simon & Schuster, 502 U.S., at
124, 112 S. Ct. 501, 116 L. Ed. 2d 476 (Kennedy, J., concurring in judgment), the quoted language from WRTL
provides a sufficient framework for protecting the relevant First Amendment interests in this case. We shall
employ it here.

Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain
subjects or viewpoints. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S. Ct.
1878, 146 L. Ed. 2d 865 (2000) (striking down content-based restriction). Prohibited, too, are restrictions
distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v.
Bellotti, 435 U.S. 765, 784, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). As instruments to censor, these categories are
interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control
content.

Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a
constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some
and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to
strive to establish worth, standing, and respect for the speaker's voice. The Government may not by these means
deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of
consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.

The Court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons, but
these rulings were based on an interest in allowing governmental entities to perform their functions. See, e.g.,
Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986) (protecting the
"function of public school education"); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129, 97 S.
Ct. 2532, 53 L. Ed. 2d 629 (1977) (furthering "the legitimate penological objectives of the corrections system"
(internal quotation marks omitted)); Parker v. Levy, 417 U.S. 733, 759, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974)
(ensuring "the capacity of the Government to discharge its [military] responsibilities" (internal quotation marks
omitted)); Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 557, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973)
("[F]ederal service should depend upon meritorious performance rather than political service"). The corporate
independent expenditures at issue in this case, however, would not interfere with governmental functions, so
these cases are inapposite. These precedents stand only for the proposition that there are certain governmental
functions that cannot operate without some restrictions on particular kinds of speech. By contrast, it is inherent in
the nature of the political process that voters must be free to obtain information from diverse sources in order to
determine how to cast their votes. At least before Austin, the Court had not allowed the exclusion of a class of
speakers from the general public dialogue.
We find no basis for the proposition that, in the context of political speech, the Government may impose
restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.
The previous decisions of the US Supreme Court in Austin v. Michigan Chamber of Commerce 99 (which ruled that
political speech may be banned based on the speaker's corporate identity) and the relevant portion of McConnell
v. Federal Election Commission100 (which upheld the limits on electioneering communications in a facial challenge)
were, in effect, overruled by Citizens United.

Like Citizens United is the 1976 case of Buckley v. Valeo.101 In this much earlier case, the US Supreme Court ruled,
among other issues elevated to it for resolution, on a provision of the Federal Election Campaign Act of 1971, as
amended, (FECA)102 which limits independent political expenditures by an individual or group advocating the
election or defeat of a clearly identified candidate for federal office to $1,000 per year. Majority of the US Supreme
Court expressed the view that the challenged provision is unconstitutional as it impermissibly burdens the right of
free expression under the First Amendment, and could not be sustained on the basis of governmental interests in
preventing the actuality or appearance of corruption or in equalizing the resources of candidates.103chanrobleslaw

Even so, the rulings in Citizens United and Buckley find bearing only on matters related to “independent
expenditures,” an election law concept which has no application in this jurisdiction. In the US context, independent
expenditures for or against a particular candidate enjoy constitutional protection. They refer to those expenses
made by an individual, a group or a legal entity which are not authorized or requested by the candidate, an
authorized committee of the candidate, or an agent of the candidate; they are expenditures that are not placed in
cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate. 104 In
contrast, there is no similar provision here in the Philippines. In fact, R.A. No. 9006105 and its implementing rules
and regulations106 specifically make it unlawful to print, publish, broadcast or exhibit any print, broadcast or
outdoor advertisements donated to the candidate without the written acceptance of said candidate.

If at all, another portion of the Buckley decision is significant to this case. One of the issues resolved therein is the
validity of a provision of the FECA which imposes $1,000 limitation on political contributions by individuals and
groups to candidates and authorized campaign committees.107 Five justices of the nine-member US Supreme Court
sustained the challenged provision on the grounds that it does not violate First Amendment speech and
association rights or invidiously discriminate against non-incumbent candidates and minority party candidates but
is supported by substantial governmental interests in limiting corruption and the appearance of corruption. It was
held:chanroblesvirtuallawlibrary

As the general discussion in Part I-A, supra, indicated, the primary First Amendment problem raised by the Act's
contribution limitations is their restriction of one aspect of the contributor's freedom of political association. The
Court's decisions involving associational freedoms establish that the right of association is a "basic constitutional
freedom," Kusper v. Pontikes, 414 U.S. at 57, that is "closely allied to freedom of speech and a right which, like free
speech, lies at the foundation of a free society." Shelton v. Tucker, 364 U.S. 479, 486 (1960). See, e.g., Bates v.
Little Rock, 361 U.S. 516, 522-523 (1960); NAACP v. Alabama, supra at 460-461; NAACP v. Button, supra, at 452
(Harlan, J., dissenting). In view of the fundamental nature of the right to associate, governmental "action which
may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." NAACP v. Alabama,
supra, at 460-461. Yet, it is clear that "<[n]either the right to associate nor the right to participate in political
activities is absolute." CSC v. Letter Carriers, 413 U.S. 548, 567 (1973). Even a "significant interference' with
protected rights of political association" may be sustained if the State demonstrates a sufficiently important
interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. Cousins v.
Wigoda, supra, at 488; NAACP v. Button, supra, at 438; Shelton v. Tucker, supra, at 488.

Appellees argue that the Act's restrictions on large campaign contributions are justified by three governmental
interests. According to the parties and amici, the primary interest served by the limitations and, indeed, by the Act
as a whole, is the prevention of corruption and the appearance of corruption spawned by the real or imagined
coercive influence of large financial contributions on candidates' positions and on their actions if elected to office.
Two "ancillary" interests underlying the Act are also allegedly furthered by the $ 1,000 limits on contributions.
First, the limits serve to mute the voices of affluent persons and groups in the election process and thereby to
equalize the relative ability of all citizens to affect the outcome of elections. Second, it is argued, the ceilings may
to some extent act as a brake on the skyrocketing cost of political campaigns and thereby serve to open the
political system more widely to candidates without access to sources of large amounts of money.

It is unnecessary to look beyond the Act's primary purpose -- to limit the actuality and appearance of corruption
resulting from large individual financial contributions -- in order to find a constitutionally sufficient justification for
the $ 1,000 contribution limitation. Under a system of private financing of elections, a candidate lacking immense
personal or family wealth must depend on financial contributions from others to provide the resources necessary
to conduct a successful campaign. The increasing importance of the communications media and sophisticated
mass-mailing and polling operations to effective campaigning make the raising of large sums of money an ever
more essential ingredient of an effective candidacy. To the extent that large contributions are given to secure
political quid pro quo's from current and potential office holders, the integrity of our system of representative
democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the
deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.

Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of
corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual
financial contributions. In CSC v. Letter Carriers, supra, the Court found that the danger to "fair and effective
government" posed by partisan political conduct on the part of federal employees charged with administering the
law was a sufficiently important concern to justify broad restrictions on the employees' right of partisan political
association. Here, as there, Congress could legitimately conclude that the avoidance of the appearance of
improper influence "is also critical... if confidence in the system of representative Government is not to be eroded
to a disastrous extent." 413 U.S. at 565.

Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn
disclosure requirements constitute a less restrictive means of dealing with "proven and suspected quid pro quo
arrangements." But laws making criminal the giving and taking of bribes deal with only the most blatant and
specific attempts of those with money to influence governmental action. And while disclosure requirements serve
the many salutary purposes discussed elsewhere in this opinion, Congress was surely entitled to conclude that
disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to
deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions,
even when the identities of the contributors and the amounts of their contributions are fully disclosed.

The Act's $ 1,000 contribution limitation focuses precisely on the problem of large campaign contributions -- the
narrow aspect of political association where the actuality and potential for corruption have been identified -- while
leaving persons free to engage in independent political expression, to associate actively through volunteering their
services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees
with financial resources. Significantly, the Act's contribution limitations in themselves do not undermine to any
material degree the potential for robust and effective discussion of candidates and campaign issues by individual
citizens, associations, the institutional press, candidates, and political parties.

We find that, under the rigorous standard of review established by our prior decisions, the weighty interests
served by restricting the size of financial contributions to political candidates are sufficient to justify the limited
effect upon First Amendment freedoms caused by the $ 1,000 contribution ceiling. (Emphasis supplied)

Until now, the US Supreme Court has not overturned the ruling that, with respect to limiting political contributions
by individuals and groups, the Government’s interest in preventing quid pro quo corruption or its appearance was
“sufficiently important” or “compelling” so that the interest would satisfy even strict scrutiny. 108chanrobleslaw

In any event, this Court should accentuate that resort to foreign jurisprudence would be proper only if no law or
jurisprudence is available locally to settle a controversy and that even in the absence of local statute and case law,
foreign jurisprudence are merely persuasive authority at best since they furnish an uncertain guide. 109 We
prompted in Republic of the Philippines v. Manila Electric Company:110chanrobleslaw
x x x American decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive
for no court holds a patent on correct decisions. Our laws must be construed in accordance with the intention of
our own lawmakers and such intent may be deduced from the language of each law and the context of other local
legislation related thereto. More importantly, they must be construed to serve our own public interest which is the
be-all and the end-all of all our laws. And it need not be stressed that our public interest is distinct and different
from others.111chanrobleslaw

and once more in Central Bank Employees Assoc., Inc. v. Bangko Sentral Ng Pilipinas:112chanrobleslaw

x x x [A]merican jurisprudence and authorities, much less the American Constitution, are of dubious application for
these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine
constitutional law is concerned.... [I]n resolving constitutional disputes, [this Court] should not be beguiled by
foreign jurisprudence some of which are hardly applicable because they have been dictated by different
constitutional settings and needs.” Indeed, although the Philippine Constitution can trace its origins to that of the
United States, their paths of development have long since diverged. 113chanrobleslaw

Indeed, in Osmeña v. COMELEC,114 this Court, in reaffirming its ruling in National Press Club v. Commission on
Elections115 that Section 11 (b) of R.A. No. 6646116 does not invade and violate the constitutional guarantees
comprising freedom of expression, remarked in response to the dissent of Justice Flerida Ruth P.
Romero:chanroblesvirtuallawlibrary

On the other hand, the dissent of Justice Romero in the present case, in batting for an “uninhibited market place of
ideas,” quotes the following from Buckley v. Valeo:chanroblesvirtuallawlibrary

[T]he 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.”ChanRoblesVirtualawlibrary

But do we really believe in that? That statement was made to justify striking down a limit on campaign expenditure
on the theory that money is speech. Do those who endorse the view that government may not restrict the speech
of some in order to enhance the relative voice of others also think that the campaign expenditure limitation found
in our election laws is unconstitutional? How about the principle of one person, one vote, is this not based on the
political equality of voters? Voting after all is speech. We speak of it as the voice of the people – even of God. The
notion that the government may restrict the speech of some in order to enhance the relative voice of others may
be foreign to the American Constitution. It is not to the Philippine Constitution, being in fact an animating principle
of that document.

Indeed, Art. IX-C, §4 is not the only provision in the Constitution mandating political equality. Art. XIII, §1 requires
Congress to give the “highest priority” to the enactment of measures designed to reduce political inequalities,
while Art. II, §26 declares as a fundamental principle of our government “equal access to opportunities for public
service.” Access to public office will be denied to poor candidates if they cannot even have access to mass media in
order to reach the electorate. What fortress principle trumps or overrides these provisions for political equality?

Unless the idealism and hopes which fired the imagination of those who framed the Constitution now appear dim
to us, how can the electoral reforms adopted by them to implement the Constitution, of which §11(b) of R.A. No.
6646, in relation to §§90 and 92 are part, be considered infringements on freedom of speech? That the framers
contemplated regulation of political propaganda similar to §11(b) is clear from the following portion of the
sponsorship speech of Commissioner Vicente B. Foz:chanroblesvirtuallawlibrary

MR. FOZ. . . . Regarding the regulation by the Commission of the enjoyment or utilization of 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, there is a provision that during the election period,
the Commission may regulate, among other things, the rates, reasonable free space, and time allotments for
public information campaigns and forums among candidates for the purpose of ensuring free, orderly, honest and
peaceful elections. This has to do with the media of communication or information. 117chanrobleslaw

Proceeding from the above, the Court shall now rule on Ejercito’s proposition that the legislature imposes no legal
limitation on campaign donations. He vigorously asserts that COMELEC Resolution No. 9476 distinguishes between
“contribution” and “expenditure” and makes no proscription on the medium or amount of contribution made by
third parties in favor of the candidates, while the limit set by law, as appearing in COMELEC Resolution No. 9615,
applies only to election expenditures of candidates.

We deny.

Section 13 of R.A. No. 7166118 sets the current allowable limit on expenses of candidates and political parties for
election campaign, thus:chanroblesvirtuallawlibrary

SEC. 13. Authorized Expenses of Candidates and Political Parties. – The aggregate amount that a candidate or
registered political party may spend for election campaign shall be as follows:chanroblesvirtuallawlibrary

(a) For candidates – Ten pesos (P10.00) for President and Vice President; and for other candidates, Three pesos
(P3.00) for every voter currently registered in the constituency where he filed his certificate of candidacy:
Provided, That, a candidate without any political party and without support from any political party may be
allowed to spend Five pesos (P5.00) for every such voter; and

(b) For political parties - Five pesos (P5.00) for every voter currently registered in the constituency or
constituencies where it has official candidates.

Any provision of law to the contrary notwithstanding, any contribution in cash or in kind to any candidate or
political party or coalition of parties for campaign purposes, duly reported to the Commission, shall not be subject
to the payment of any gift tax.119chanrobleslaw

Sections 100, 101, and 103 of the OEC are not repealed by R.A. No. 7166. 120 These provisions, which are merely
amended insofar as the allowable amount is concerned, read:chanroblesvirtuallawlibrary

SECTION 100. Limitations upon expenses of candidates. – No candidate shall spend for his election campaign an
aggregate amount exceeding one peso and fifty centavos for every voter currently registered in the constituency
where he filed his candidacy: Provided, That the expenses herein referred to shall include those incurred or caused
to be incurred by the candidate, whether in cash or in kind, including the use, rental or hire of land, water or
aircraft, equipment, facilities, apparatus and paraphernalia used in the campaign: Provided, further, That where
the land, water or aircraft, equipment, facilities, apparatus and paraphernalia used is owned by the candidate, his
contributor or supporter, the Commission is hereby empowered to assess the amount commensurate with the
expenses for the use thereof, based on the prevailing rates in the locality and shall be included in the total
expenses incurred by the candidate.

SECTION 101. Limitations upon expenses of political parties. – A duly accredited political party may spend for the
election of its candidates in the constituency or constituencies where it has official candidates an aggregate
amount not exceeding the equivalent of one peso and fifty centavos for every voter currently registered therein.
Expenses incurred by branches, chapters, or committees of such political party shall be included in the
computation of the total expenditures of the political party.

Expenses incurred by other political parties shall be considered as expenses of their respective individual
candidates and subject to limitation under Section 100 of this Code.
SECTION 103. Persons authorized to incur election expenditures. – No person, except the candidate, the treasurer
of a political party or any person authorized by such candidate or treasurer, shall make any expenditure in support
of or in opposition to any candidate or political party. Expenditures duly authorized by the candidate or the
treasurer of the party shall be considered as expenditures of such candidate or political party.

The authority to incur expenditures shall be in writing, copy of which shall be furnished the Commission signed by
the candidate or the treasurer of the party and showing the expenditures so authorized, and shall state the full
name and exact address of the person so designated. (Emphasis supplied)121chanrobleslaw

The focal query is: How shall We interpret “the expenses herein referred to shall include those incurred or caused
to be incurred by the candidate” and “except the candidate, the treasurer of a political party or any person
authorized by such candidate or treasurer” found in Sections 100 and 103, respectively, of the OEC? Do these
provisions exclude from the allowable election expenditures the contributions of third parties made with the
consent of the candidate? The Court holds not.

When the intent of the law is not apparent as worded, or when the application of the law would lead to absurdity,
impossibility or injustice, extrinsic aids of statutory construction may be resorted to such as the legislative history
of the law for the purpose of solving doubt, and that courts may take judicial notice of the origin and history of the
law, the deliberations during the enactment, as well as prior laws on the same subject matter in order to ascertain
the true intent or spirit of the law.122chanrobleslaw

Looking back, it could be found that Sections 100, 101, and 103 of the OEC are substantially lifted from P.D. No.
1296,123 as amended. Sections 51, 52 and 54 of which specifically provide:chanroblesvirtuallawlibrary

Section 51. Limitations upon expenses of candidates. No candidate shall spend for his election campaign an
amount more than the salary or the equivalent of the total emoluments for one year attached to the office for
which he is a candidate: Provided, That the expenses herein referred to shall include those incurred by the
candidate, his contributors and supporters, whether in cash or in kind, including the use, rental or hire of land,
water or air craft, equipment, facilities, apparatus and paraphernalia used in the campaign: Provided, further, That,
where the land, water or air craft, equipment, facilities, apparatus and paraphernalia used is owned by the
candidate, his contributor or supporter, the Commission is hereby empowered to assess the amount
commensurate with the expenses for the use thereof, based on the prevailing rates in the locality and shall be
included in the total expenses incurred by the candidate.

In the case of candidates for the interim Batasang Pambansa, they shall not spend more than sixty thousand pesos
for their election campaign.

Section 52. Limitation upon expenses of political parties, groups or aggrupations. A political party, group or
aggrupation may not spend for the election of its candidates in the constituency or constituencies where it has
official candidates an aggregate amount more than the equivalent of fifty centavos for every voter currently
registered therein: Provided, That expenses incurred by such political party, group or aggrupation not duly
registered with the Commission and/or not presenting or supporting a complete list of candidates shall be
considered as expenses of its candidates and subject to the limitation under Section 51 of this Code. Expenses
incurred by branches, chapters or committees of a political party, group or aggrupation shall be included in the
computation of the total expenditures of the political party, group or aggrupation. (Emphasis supplied)

Section 54. Persons authorized to incur election expenditures. No person, except the candidate or any person
authorized by him or the treasurer of a political party, group or aggrupation, shall make any expenditure in support
of, or in opposition to any candidate or political party, group or aggrupation. Expenditures duly authorized by the
candidate of the treasurer of the party, group or aggrupation shall be considered as expenditure of such candidate
or political party, group or aggrupation.
The authority to incur expenditures shall be in writing, copy of which shall be furnished the Commission, signed by
the candidate or the treasurer of the party, group or aggrupation and showing the expenditure so authorized, and
shall state the full name and exact address of the person so designated. (Emphasis supplied)

Prior to P.D. No. 1296, R.A. No. 6388 (otherwise known as the “Election Code of 1971”) was enacted.124Sections 41
and 42 of which are relevant, to quote:chanroblesvirtuallawlibrary

Section 41. Limitation Upon Expenses of Candidates. – No candidate shall spend for his election campaign more
than the total amount of salary for the full term attached to the office for which he is a candidate.

Section 42. Limitation Upon Expenses of Political Parties and Other Non-political Organizations. – No political party
as defined in this Code shall spend for the election of its candidates an aggregate amount more than the
equivalent of one peso for every voter currently registered throughout the country in case of a regular election, or
in the constituency in which the

election shall be held in case of a special election which is not held in conjunction with a regular election. Any
other organization not connected with any political party, campaigning for or against a candidate, or for or against
a political party shall not spend more than a total amount of five thousand pesos. (Emphasis supplied)

Much earlier, Section 12 (G) of R.A. No. 6132,125 which implemented the resolution of both Houses of Congress
calling for a constitutional convention, explicitly stated:chanroblesvirtuallawlibrary

Section 12. Regulations of Election Spending and Propaganda. The following provisions shall govern election
spending and propaganda in the election provided for in this Act:chanroblesvirtuallawlibrary

xxx

(G) All candidates and all other persons making or receiving expenditures, contributions or donations which in their
totality exceed fifty pesos, in order to further or oppose the candidacy of any candidate, shall file a statement of all
such expenditures and contributions made or received on such dates and with such details as the Commission on
Elections shall prescribe by rules. The total expenditures made by a candidate, or by any other person with the
knowledge and consent of the candidate, shall not exceed thirty-two thousand pesos. (Emphasis supplied)

In tracing the legislative history of Sections 100, 101, and 103 of the OEC, it can be said, therefore, that the intent
of our lawmakers has been consistent through the years: to regulate not just the election expenses of the
candidate but also of his or her contributor/supporter/donor as well as by including in the aggregate limit of the
former’s election expenses those incurred by the latter. The phrase “those incurred or caused to be incurred by
the candidate” is sufficiently adequate to cover those expenses which are contributed or donated in the
candidate’s behalf. By virtue of the legal requirement that a contribution or donation should bear the written
conformity of the candidate, a contributor/supporter/donor certainly qualifies as “any person authorized by such
candidate or treasurer.” Ubi lex non distinguit, nec nos distinguere debemus. 126 (Where the law does not
distinguish, neither should We.) There should be no distinction in the application of a law where none is indicated.

The inclusion of the amount contributed by a donor to the candidate’s allowable limit of election expenses does
not trample upon the free exercise of the voters’ rights of speech and of expression under Section 4, Artticle III of
the Constitution. As a content-neutral regulation,127 the law’s concern is not to curtail the message or content of
the advertisement promoting a particular candidate but to ensure equality between and among aspirants with
“deep pockets” and those with less financial resources. Any restriction on speech or expression is only incidental
and is no more than necessary to achieve the substantial governmental interest of promoting equality of
opportunity in political advertising. It bears a clear and reasonable connection with the constitutional objectives
set out in Section 26, Article II, Section 4, Article IX-C, and Section 1, Art. XIII of the Constitution.128 Indeed, to rule
otherwise would practically result in an unlimited expenditure for political advertising, which skews the political
process and subverts the essence of a truly democratic form of government.
WHEREFORE, the Petition is DENIED. The May 21, 2014 Resolution of the COMELEC En Banc in SPA No. 13-306
(DC), which upheld the September 26, 2013 Resolution of the COMELEC First Division, granting the petition for
disqualification filed by private respondent Edgar “Egay” S. San Luis against petitioner Emilio Ramon “E.R.” P.
Ejercito, is hereby AFFIRMED.

SO ORDERED.

G.R. No. L-33325 December 29, 1971

MASTURA USMAN, petitioner,

vs.
COMMISSION ON ELECTIONS and LUIS QUIBRANZA, respondents.

G.R. No. L-34043 December 29, 1971

MASTURA USMAN, petitioner,

vs.

COMMISSION ON ELECTIONS, LUIS QUIBRANZA, MARIANO BADELLES and FRANCISCO ABALOS, respondents.

Pedro Q. Quadra for petitioner.

Jovito Salonga for respondent Luis Quibranza, et al.

Romulo C. Felizmeña, Horacio Apostol & Elesio Blancaflor for respondent Commission on Elections.

CASTRO, J.:

Pursuant to Republic Act 6132,1 election of delegates to the Constitutional Convention was held throughout the
nation on November 10, 1970. Republic Act 6132 called for the election of three hundred and twenty delegates
apportioned among sixty-seven representative districts.

Section 2 of the aforestated law, inter alia, allocated three delegates to represent the lone district of Lanao del
Norte, including Iligan City. Twenty-nine candidates contended for the three seats thus allotted.

On November 12, 1970, Luis Quibranza, Francisco Abalos, Alfredo Bosico, Luis Buendia and Bonifacio Legaspi
(hereinafter referred to as the Comelec petitioners), candidates for delegate in the aforementioned district,
petitioned the Commission on Elections (hereinafter referred to as the Comelec for a declaration of nullity of the
election returns from all the precincts of seven municipalities and municipal districts — Karomatan, Pantao-Ragat,
Matungao, Munai, Tangcal, Magsaysay, and Nunungan — and four barrios — Kapatagan, Salvador, Lala, and
Kauswagan of Lanao del Norte. The Comelec petitioners alleged as grounds that in the said municipalities and
barrios, no actual voting took place because of "terrorism and other machinations," and that
 fictitious election returns were prepared under duress, and the influence of terrorism and/or
bribery wherein, it was made to appear that certain favored candidates obtained most, if not all
the votes fictitiously cast therein, while petitioners were made to appear as having obtained very
few, if no votes at all.

The Comelec petitioners particularly stressed that the canvassing of the fictitious votes and the preparation of the
election returns from the precincts of Karomatan were in violation of the procedure laid down in resolution 769 of
the Comelec. They prayed for the holding of a special election in the municipalities and barrios concerned and, ad
interim, the suspension of the canvass as well as the proclamation of the winning candidates until after hearing
and decision on the merits of the petition.

The initial canvass of all the election returns from all the precincts of Lanao del Norte showed the following results:

1. Mariano Badelles ...................................................................... 30,770,

2. Mastura Usman ........................................................................ 23,615,

3. Francisco Abalos ..................................................................... 22,843,

4. Cornelio Sugano ...................................................................... 18,486,

5. Luis Quibranza ......................................................................... 17,831.

With the exclusion, however, of the tally of the election returns from the 42 precincts of Karomatan, the results
would be as follows:

1. Francisco Abalos ................................................................... 22,827,

2. Mariano Badelles .................................................................. 22,292,

3. Luis Quibranza ....................................................................... 17,379,

4. Mastura Usman ..................................................................... 14,301.

On November 14, 1970, the Comelec issued two resolutions ordering the board of canvassers to canvass the
election returns in Manila, ordering the same board to desist from proclaiming the winning candidates until further
orders, and setting the petition for hearing in Manila to ascertain the truth of the allegation that no voting took
placed in the disputed precincts.

On November 24, 1970, the Comelec petitioners, joined by another candidate, Potri Ali Pacasum, amended their
petition, asking for the exclusion of the election returns from the precincts of the barrios of Kapatagan, Salvador,
Lala, and Kauswagan except those from precincts 16 and 24 of Kapatagan and precincts 14 and 14-A of Salvador
and repeating their allegation that no elections actually took place in the questioned precincts,

and/or in the remote possibility that elections had been initiated they were suspended before
the hour fixed by law for the closing of the voting because of violence or terrorism and that the
votes not cast therein are sufficient to affect the result of the elections,

and adding that the election returns from the said precincts
 ... were prepared prior to the elections, and/or had been tampered with and/or are statistically
improbable in that the number of voters who allegedly cast their votes is out of proportion to the
actual population in those municipalities and municipal districts concerned.

Mariano Badelles, Cornelio Sugano and Mastura Usman (hereinafter referred to as the Comelec respondents),
candidates affected by the petition, two of whom appeared as front runners per the initial canvass of all the
election returns from all the precincts of Lanao del Norte, filed an amended answer dated November 26, 1970
wherein they vehemently denied the allegations of the Comelec petitioners, brushing them off as "preposterous
and without basis both in fact and in law." Claiming that "free, clean, peaceful and orderly" elections took place in
all the places and precincts enumerated by the Comelec petitioners, they asked for the dismissal of the petition on
the ground of lack of cause of action.

At a preliminary conference between the parties, they assented to the summoning by the Comelec of the
chairmen of the boards of inspectors of Karomatan to testify in Manila. They also agreed to allow the chairmen of
the boards of inspectors of the other municipalities to testify in Iligan City. The Comelec then subpoenaed the 42
chairmen of the boards of inspectors of Karomatan. On December 9, 1970, a number of them arrived in Manila.

At the hearing, four chairmen testified, three of whom declared that the elections in their respective precincts
were "free, honest and orderly." Of the three, however, one broke down on cross-examination and revealed what
really transpired in his precinct on election day. He related that only about 10% to 20% of the registered voters in
his precinct actually voted and that armed men prepared and filled up the rest of the ballots. In addition, he stated
that two unidentified men gave him a piece of paper with the names of five candidates written thereon with the
corresponding number of votes "they were supposed to receive in the precinct." The unidentified men told him to
give the indicated number of votes to the persons listed in the piece of paper; so the board prepared the election
returns in accordance with their instructions.

The fourth chairman who testified revealed that on the day before the elections, the members of the boards of
inspectors, having been summoned, appeared at the office of the mayor where they were questioned on their
"willingness to cooperate" by making some candidates win in their respective precincts. She further testified that
on election day, about twenty Muslims appeared in her precinct who prepared and filled up the ballots and
thumbmarked and signed the voting record.

In the meantime, the Comelec, upon the application of the Comelec petitioners, ordered the production in Manila
of the precinct books of voters for Karomatan, including CE forms 39 (lists of voters who voted) used in connection
with the 1970 elections.

On December 12, 1970, the Comelec, by resolution, directed the chief of its Fingerprint Identification Division, Jose
Abrigo, to examine all the precinct books of voters for Karomatan, together with the CE forms 39 accomplished in
connection with the 1970 elections, to determine:

a. Whether the thumbmark affixed on the 1970 voting record of each voter on Form No. 1
coincides with the thumbmark of the voters on the face of said Form No. 1 and also in the 1970
Form No. 39;

b. How many are there where the thumbmark on Form 1, the voting record and Form 39 are by
the same persons indicating that the registered voter had cast his vote in the precinct?

c. How many are there where the thumbmark on Form 1, the voting record and Form 39 are by
more than one person?
 d. Are there thumbmarks in Form 39 which appear more than once, indicating that one person
affixed his thumbmark more than once?

e. Are there thumbmarks appearing in more than one voting record also indicating that one
person affixed his thumbmark in two or more voting records in Form 1?,

and the case of blurred thumbmarks or thumbmarks not capable of being used as bases for identification, to
examine the signatures in CE form 1, the voting record, and CE form 39 instead. The Comelec ordered Abrigo to
submit his report thereon.

In the same resolution, the Comelec ordered the suspension of the examination of the other chairmen of the
boards of inspectors.

On December 21, 1970, Abrigo having submitted a partial report, the Comelec directed him to withdraw the same
and submit a complete one. Abrigo thereafter submitted two reports dated December 28, 1970 and January 21,
1971. Subsequently, the Comelec ordered the revision of both reports for easier understanding and the inclusion
of the report of the NBI handwriting experts. On February 9, 1971, Abrigo submitted the revised report which
introduced no changes with regard to the findings made in the previous reports.

The revised report stated that the Fingerprint Identification Division of the Comelec, in six teams of three members
each, examined, analyzed and made a comparison of the registered voter's right hand thumbmark appearing on
the voter's registration record (front side of CE form 1) with that appearing on the voting record (back side of CE
form 1) and/or on the list of voters who voted (CE form 39), to determine whether or not the registered voter
actually voted. The revised report also stated that the examiners made no analysis in those instances wherein a
person appears to have voted as his name appears on CE form 39 but has no CE form 1, or where a voter failed to
place his thumbmark on CE form 39 and on the back side of CE form 1. The revised report showed the following
results:

1. Total number of registered voters

per precinct books of voters ........................................................ 9,419,

2. Total number of persons who voted

per CE forms 39 .............................................................................. 9,455 (102 voters who voted
per CE forms 1 but not listed
in CE forms 39 will be added to this total),

3. Total numbers of person without CE

form 1 but who voted per CE forms 39 ...................................... 673,

4. Total number of registered

voters who did not vote .............................................................. 521,

The revised report revealed the following results:

1. Number of voters with thumbmark

on voting record for 1970 and/or on
CE form 39 not identical with that on
CE form 1 ................................................................................. 5,192,

2. Number of voters with thumbmark

on voting record for 1970 and/or
 on CE form 39 identical to that on
CE form 1 ................................................................................. 22,

3. Number of voters with blurred,

smudged or faint thumbmarks ............................................. 3,684.

With regard to the blurred, smudged or faint thumbmarks, the revised report explained, the Questioned
Documents experts of the NBI detailed with the Comelec instead made a comparison of the signatures appearing
on the registration record and voting record. The results of the examination are:

1. Number of signatures found positive

(signed by the same person) .................................................. 217,

2. Number of signatures found negative

(not signed by the same person) ........................................... 965,

3. Number of signatures wherein the

examiners reached and made no opinion .............................. 2,506.

On March 12, 1971 the Comelec issued Resolution RR-892 wherein, among others, it (1) declared, by unanimous
vote, the returns from the 42 precincts of Karomatan as "spurious and/or manufactured;" (2) ordered, by
unanimous vote, the exclusion from the canvass for the election of delegates for Lanao del Norte the aforesaid
returns; (3) by unanimous vote, held as unnecessary any further hearing on the petition relating to the disputed
returns from Pantao-Ragat, Matungao, Munai, Tangcal, Magsaysay, Nunungan, Kapatagan, and Salvador, "it
appearing that the results of the election would no longer be affected by questioned returns from said
municipalities after the rejection of the returns from the 42 precincts of Karomatan," and directed the board of
canvassers to include the returns from the said municipalities in the canvass.

The Comelec found that

in the 42 precincts of Karomatan, there were 9,419 registered voters; and that 9,557 had actually
voted, or that 138 votes were in excess of the number of registered voters. Of these 9,557 who
voted, only 239 had been established to have actually voted among the registered voters in all
the 42 precincts; 6,147 of the registered voters had been voted for by substitute voters, while an
additional 673 persons who were not registered in any of the 42 precincts were able to vote
without using name of any of the registered voters. 2,498 of those who voted could not be
determined whether they were registered vote or persons who voted in substitution of the
registered voters.

Continuing, the Comelec observed that

(I)n all the 42 precincts, many of the registered vote have been voted for by persons other than
the registered voters; in several precincts, several groups of thumbprints and signatures were
made by one person; in majority cases, none or only one each thumbprint or signature appears
to belong to a registered voter in the precinct but those identified as register voters who voted in
the precincts were probably those who were able to vote before the substitute voters had voted.
A very high percentage of voting could be noted in these 42 precincts, there having been 100%
voting in 10 precincts, and with more the 100% in 7 precincts where there is an excess of votes
over the registered voters. There was also an excess of votes in the whole town by 138 votes
over the number of registered voters.
Anent the testimony of the chairmen of the boards of inspectors relating to the "free, honest, and orderly"
elections in their respective precincts and the joint affidavits of the members of the aforesaid boards attesting to
the orderliness and peacefulness of the elections in the precincts wherein they served, the Comelec stated that the
findings of its Fingerprint Identification Division and of the NBI handwriting experts conclusively belie the
statements of the aforementioned members of the boards of inspectors of Karomatan. Rejecting the veracity of
their statements, the Comelec opined that the members of the boards of inspectors were.

co-conspirators or hostages of the perpetrators of a deeply rooted practice spawned by the

political caciquism of Karomatan, unwilling to tell the truth either because they would thereby be
admitting their guilty participation or exposing themselves and their families to reprisals.

In rejecting the election returns from the 42 precincts of Karomatan, the Comelec stated:

An election return is a report prepared and certified as true and correct by the members of the
board of election inspectors of the election in their respective precincts, showing how the votes
had been read, counted and tallied by the board and the number of votes received by
candidates. But an election return presupposes that there is a bona fide, not a sham election,
conducted in the precinct where only the registered voters had voted. But if the election is sham,
how can the board of inspectors make a report on the presumptive result of the election in their
respective precincts? How can said returns be accorded any prima facie value? ... .

What the board of inspectors of Karomatan should have done was to certify that there was no
voting in their precinct since the registered voters did not vote but somebody else voted in their
names. When instead of doing this they prepared the returns and certified to a falsehood, the
returns prepared by them must be considered spurious, false or manufactured returns and in
fact is no return at all.

As to the question of whether or not to hold a special election in Karomatan, two members of the Comelec voted
down the calling of such a special election and directed the completion of the canvass on the basis of the valid
returns from the rest of the precincts of Lanao del Norte, and the proclamation, upon authority of Antonio, Jr. vs.
Comelec, et al. (32 SCRA 319), of the third winning candidate. The third Comelec member held the view that the
finding by the Comelec that the registered voters in the 42 precinct of Karomatan had not voted amounts to a
finding of failure of election in the said 42 precincts. He opined that pursuant to section 17 (e) of Republic Act
6132, the situation necessarily called for the holding of a special election in Karomatan.

Thus, Usman, on March 22, 1971, filed the present petition for review,2 (1) challenging the jurisdiction of the
Comelec in resolving the issue relating to the genuineness and authenticity of the disputed election returns, and in
inquiring into the regularity or irregularity of the thumbmarks and signatures of the voters who voted; (2)
questioning the regularity of the proceedings adopted by the Comelec in relation to the exercise of its jurisdiction
and (3) assailing the probative value of the finding made regarding the signatures and thumbmarks of the voters
who voted in the 42 precincts of Karomatan. Usman prayed for (1) the issuance of a writ of preliminary injunction
restraining the Comelec from enforcing its resolution dated March 12, 1971, and stopping the proclamation of
winning candidates tentatively set on March 25, 1971; (2) the setting aside of the Comelec resolution dated March
1971 and the inclusion of the results from the 42 precinct of Karomatan in the canvass of the election returns his
proclamation as the winning candidate; and (3) in case this Court sustains the aforesaid Comelec resolution, the
calling of a special election in all the 42 precincts of Karomatan pursuant to section 17
(e)3 of Republic Act 6132.

On March 23, 1971, this Court issued a temporary straining order enjoining the Comelec from enforcing its
Resolution dated March 12, 1971 and from proceeding with the proclamation of the winning candidate
temporarily scheduled on March 25, 1971.
The Comelec filed, its answer on April 6, 1971; Quibranza his on April 13, 1971. Both the Comelec and Quibranza
vehemently refute Usman's claim of want of jurisdiction on the part of the Comelec to inquire into the regularity or
irregularity of the thumbmarks and signatures of the voters who voted relative to its inquiry into the genuineness
and authenticity of the election returns from the 42 precincts of Karomatan. Regarding the regularity of the
proceedings questioned by Usman, the Comelec and Quibranza maintain that the action filed by the former — a
special civil action for certiorari — excludes any consideration of procedural errors.

After hearing of the case on April 21, 1971, this Court required the parties to submit their memoranda in
amplification of their arguments. Quibranza filed his on May 3, 1971; Usman his on May 5, 1971.

In his memorandum, Usman repeats his arguments in support of his stand that the Comelec lacks jurisdiction to
inquire into the regularity or irregularity of the thumbmarks and signatures of the voters who voted and claims
denial of due process, alleging that the Comelec gave him no opportunity

to engage the services of a handwriting expert and a fingerprint expert to examine the
thumbmarks and signatures of the registered voters who voted in all the 42 precincts of
Karomatan, Lanao del Norte.

and that the said Comelec refused to divulge

the qualification, competency, educational background and training, if any, of all the members of
the six (6) teams who allegedly conducted the so-called expert examination of thumbmarks.

Then, this Court, in a resolution dated May 17, 1971, set aside the Comelec resolution of March 12, 1971 and
remanded the case to the Comelec to enable it to reopen the proceedings

for the purpose of giving petitioner Usman a reasonable period of thirty (30) days from receipt of
its order implementing this decision, within which to summarily present whatever competent
evidence he may have, expert or otherwise, tending either to show the lack of qualifications of
the Comelec thumbprint or handwriting experts or to rebut their findings, on the basis which the
Comelec has ruled that the returns from the 42 precincts in question of Karomatan, Lanao del
Norte "are spurious and/or manufactured returns and as such should be excluded from the
canvass for the election of delegates for the lone congressional district of Lanao del Norte".

The majority of this Court stated in the resolution that Comelec failed to fully recognize and respect Usman's right
to due process when.

(a) petitioner Usman was not allowed by the Comelec, without sufficient reasons, to present any
evidence to rebut findings of its experts regarding the thumbprints and signature in the C.E.
Forms 1 and their corresponding C.E. Forms 39 submitted to them to the effect that out of the
total 9,557 votes cast in the said 42 precincts in Karomatan, only 239 had been established to
have been cast by duly registered voters, 673 had been cast by non-registered persons, 6,147
had been cast by substitute voters and 2,498 had been cast by persons whose thumbprints and
signatures are not definitely identifiable; (b) qualifications of almost all of said experts were not
duly disclosed, much less proven during the hearing, thus depriving petitioner, inspite of his
request, of the opportunity to properly scrutinize them; and (c) only the chief of said experts,
Jose M. Abrigo, who had not personally examined and studied all thumbprints and signatures in
question, was called to testify, albeit aided by his assistants, and his testimony on cross-
examination appears to have been unduly limited by the Comelec; not to mention the fact that
the several reports of the experts of the Comelec, and of the National Bureau of Investigation,
 who with the exception of only Eduardo V. Maniwang, were not called testify, are not clearly
consistent with each other.

Pursuant to the aforestated resolution, the Comelec reopened the proceedings and set the case for hearing June
29, 1971.

At the resumed hearing, Usman, asked to present his evidence, informed the Comelec of his desire to call to the
witness stand the Comelec fingerprint examiners who personally studied the precinct books of voters and CE forms
39 of Karomatan. So the Comelec, on July 9, 10, 17 and 20, 1971, called the 18 fingerprint examiners to the witness
stand and Usman questioned them as to their qualifications. Usman also informed the Comelec of his intention to
present one fingerprint and handwriting expert after he finished with his interrogation of all the Comelec
fingerprint examiners. However, after his questioning of the Comelec fingerprint examiners, Usman notified the
Comelec that instead of presenting any expert witness, he intended to submit affidavits of voters of Karomatan.

On July 9, 1971 Usman also petitioned the Comelec to send a team of 21 Comelec lawyers to Karomatan to take
the affidavits of the registered voters, members of the boards of election inspectors, government officials and
employees, and religious and civic leaders of the said municipality. On July 14, 1971 Quibranza opposed the
aforementioned petition, stating that the move was "another maneuver to prolong and delay the case."
Subsequently, on July 17, 1971, the Comelec resolved to allow Usman to secure the affidavits subject to the
following conditions:

A. The affidavits may be sworn to before any Notary Public or Municipal Judge;

B. The affidavits shall not only be sworn to by affiants but shall also contain:

1) Three (3) facsimile signatures of the affiants;

2) Fingerprints of the two (2) hands of the affiant which must be legible,
otherwise, the affidavit shall not be considered; and

3) The affidavit shall contain the precinct number where the affiant voted in
the election or the precinct number where the affiant served in the last
election in case of members of the Board of Inspectors;

C. Candidate Mastura Usman shall have until July 30, 1971 to submit to the Commission such
affidavits; and

D. Upon the suggestion of Counsel Pedro Quadra, the other candidates for the position of
delegate in the province of Lanao del Norte shall be notified of the date and time of the taking of
the said affidavits, who may be present personally or thru their authorized representatives.

On July 30, 1971, the day set for the presentation of the affidavits, the counsel for Usman informed the Comelec
that he had not yet received the said affidavits, and asked for an extension up to August 9, 1971 to submit them.
He also manifested that the extension would be the last and that he would rest his case on the basis of the
affidavits secured on August 9, 1971.

On August 9, 1971, the counsel for Usman again asked for a resetting of the hearing for August 13, 1971 on the
ground of non-receipt of the affidavits from Karomatan. Over the objections of the counsel for Quibranza, the
Comelec reset the hearing to August 13, 1971.
At the hearing at 10 o'clock in the morning of August 13, 1971, Usman's counsel asked for a recess as he expected
the arrival of the affidavits that morning. Thus the Comelec, to give the counsel for Usman ample time to sort out
the affidavits for an orderly presentation, re-scheduled the case for hearing the following Monday, August 16,
1971.

Came Monday morning and the counsel for Usman failed to appear. Instead, he sent his secretary to deliver the
affidavits, together with a motion for postponement and a petition asking for more time within which to gather
additional affidavits. Usman's counsel, in asking for postponement, alleged as cause his appearance before the
Criminal Circuit Court in Baguio City in connection with the hearing of the criminal case against Vincent Crisologo.
The Comelec, before acting on the motion for postponement, called the secretary to the witness stand to find out
the reason for the non-appearance of Usman's counsel despite the fact that the Comelec had reset the case to
August 16, 1971 with the counsel's prior knowledge and for his convenience. The Comelec found out that Usman's
counsel gave his secretary instructions to bring the affidavits to the Comelec only the preceding night and that two
other lawyers, belonging to the said counsel's law office, were also handling the Crisologo case in Baguio City. So
the Comelec denied the motion for postponement.

Anent the affidavits, the counsel for Quibranza objected to their admission in evidence on the ground of non-
compliance with the conditions laid down by the Comelec. The Comelec sustained the objection of Quibranza's
counsel and denied the admission of the affidavits. Nonetheless, the Comelec ordered the inclusion of the
affidavits as part of the records of the case. Quibranza's counsel not having any rebuttal evidence to present, the
Comelec considered the case submitted for resolution.

The Comelec, in its resolution of August 21, 1971, found no basis to reconsider its findings based on the reports of
the fingerprint and handwriting experts, and resolved to confirm its previous ruling declared the returns from the
42 precincts of Karomatan as "spurious and manufactured" returns and ordering their exclusion from the canvass.
On the question of whether or not to call a special election, the Comelec chairman maintained his original view
relating to the completion of the canvass on the basis of the valid returns from the rest of the precincts of the lone
district of Lanao del Norte and the proclamation of the third winning candidate on the basis of the said canvass.
The other member maintained his original view on the need of holding a special election in the 42 precincts of
Karomatan. And because of the retirement of the third commissioner the Comelec found itself in a deadlock on the
issue of whether to call a special election in Karomatan or to proclaim the third winning candidate on the basis of
the canvass of all the valid returns from the remaining precincts of Lanao del Norte.

Upon the voluminous record of the case at bar,4 the mass of accumulated facts graphically narrated by the parties,
and the various arguments advanced, the issue tendered for resolution, as we see it, relates fundamentally to the
authority of the Comelec to declare the election returns from the 42 precincts of Karomatan as "spurious and/or
manufactured" and to exclude them from the canvass.

Usman's main argument hinges entirely on what he views as the well-circumscribed jurisdiction of the Comelec in
pre-proclamation controversies. He argues that the Comelec, in such proceedings — summary in nature and
character — has jurisdiction only to determine questions relating to the qualification of the members of the board
of canvassers, the completeness or incompleteness of a canvass, and the integrity and authenticity of election
returns.

The Comelec, in its inquiry, Usman states, should concern itself only with the integrity and authenticity of election
returns, and not their veracity — that is, whether the said returns are genuine, whether they are forged and
spurious, whether they were signed by the proper officers, and whether they were signed under duress and/or
intimidation by the election inspectors. The Comelec should decide the question of the integrity and authenticity
of the election returns solely on the basis of the face of the said returns since it has no legal authority to receive
evidence aliundein that regard.
Usman further alleges that the questions of the validity of the ballots cast in support of the election returns and
the regularity of the voting, have no relevance whatsoever to the integrity and authenticity of the election return.
The power to reject and set aside the said election returns on the ground of the invalidity of the ballots cast in
support thereof pertains solely to the Constitutional Convention.

Therefore, Usman points out, the Comelec has no authority at all to receive evidence aliunde to determine
regularity or irregularity of the voting in the 42 precincts of Karomatan or to ascertain the genuineness or falsity of
the thumbmarks and signatures of the registered voters who voted, for the purpose of deciding the question of
integrity and authenticity of the election returns. Usman attributes the Comelec's lack of jurisdiction to two factors
— the first, the summary nature and character of a pre-proclamation controversy which requires the termination
of the proceedings with the least possible delay; the second, the limited composition and restricted organization of
the Comelec which render it incapable of exercising the authority questioned..

Quibranza, for his part, argues that the Comelec has authority to admit evidence aliunde in a controversy arising in
the course of canvass proceedings. True, he states, regarding election returns objected to on the ground of defects
patent on the face of the said returns — like tampered returns or returns with erasures and alterations — the
Comelec has no jurisdiction to go beyond the face of election returns. Nevertheless, regarding election returns
objected to on some ground not discernible from the face of the said returns — like coerced, gunpoint, spurious or
manufactured returns — the Comelec has authority to admit evidence aliunde to rebut the value of the returns
asprima facie evidence of the count of votes in the precincts involved.

Similarly, Quibranza asserts, the Comelec has jurisdiction to receive evidence aliunde that would show that
"registered voters did not in fact vote, but that other persons voted for them." In such an event where a great
majority of substitutes voted in lieu of those duly registered as voters, the election returns drawn up on the basis
of the votes cast by the substitute voters should be considered as spurious returns and should consequently not be
accorded prima facie value. Certainly, there could be no genuine and regular returns certifying to the results of an
election that did not, in law, take place.

Quibranza finally avers that the Comelec acted within its authority when it ordered — for the purpose of
determining whether or not validly registered voters actually voted in the precincts in dispute — the examination
and analysis of the standard thumbmarks and signatures appearing on the voters' registration records and their
comparison with those found on the voting records and/or list of voters who voted. In doing so, he adds, the
Comelec concerned itself only with the conduct of the elections in Karomatan in consonance with its constitutional
duty to enforce and administer "all laws relative to the conduct of elections" and to insure free, orderly, and
honest elections."

Indeed, the case at bar directly confronts this Court with a problem fraught, not with fancied serious effects, but
with possible far reaching consequences attendant to the flood of pre-proclamation controversies that could be
brought before the Comelec. Mindful of the vital role of the Comelec of insuring free, orderly and honest elections
pursuant to the mandates of the Constitution and the Election Code, on the one hand, and of the diverse — and
oftentimes, novel — anomalous devices and schemes aimed at subverting the popular will ingeniously conceived
and practiced by unscrupulous politicians and their followers, on the other hand, we approach and view the
problem with utmost concern and circumspection.

The broad power of the Comelec, conferred upon it the Constitution, to enforce and administer "all laws relative to
the conduct of elections" and to decide all administrative questions affecting elections "for the purpose of insuring
free, orderly and honest elections," has been the key in the resolution of many pre-proclamation controversies
involving the integrity and authenticity of election returns. Invoking the aforestated power of the Comelec,
justified the action and upheld the authority of the Comelec to order the exclusion of "obviously manufactured
returns,5 or tampered returns,6 or returns prepared under threats and coercion or under circumstances affecting
returns' integrity and authenticity,7 emphasizing the duty of the Comelec to see to the use and inclusion in the
canvass of only genuine elections.
Several circumstances, defying exact description and dependent mainly on the factual milieu of the particular
controversy, have the effect of destroying the integrity and authenticity of disputed election returns and of avoid
theirprima facie value and character. If satisfactorily proven, although in a summary proceeding, such
circumstances as alleged by the affected or interested part stamp the election returns with the indelible mark of
falsity and irregularity, and, consequently, of unreliability and justify their exclusion from the canvass.

Remarkably, Quibranza, in the petitions he filed (together with Abalos, Bosico Buendia, Legaspi and Pacasum with
the Comelec, alleged that no actual voting took place in the precincts in question. Determined to purpose its quest
for the truth, the Comelec summoned the 42 chairmen of the boards of inspectors of Karomatan to test in Manila.
And because only a number of the chairmen arrived to give their versions of what supposedly happened in their
respective precincts, the Comelec deemed it to resort to the more convincing mode of discovery. It thus ordered
the production in Manila of the precinct books of voters and CE forms 39 of Karomatan. Then it directed the chief
of its Fingerprint Identification Division to conduct examination, comparison and analysis of the fingerprints
appearing on the voters' registration records and on the voting records and/or lists of voters who voted. With
regard to those voters with blurred, smudged or faint fingerprints, the Comelec referred their records to the
Questioned Documents experts of the NBI for examination and analysis of their signatures.

In the performance of its duty to guard against the use and inclusion of returns prepared under circumstances
showing their falsity in the canvass of election results, the Comelec should not be hampered in the choice of
effective means and methods to fully ascertain the genuineness and regularity of disputed election returns. To
establish the indubitable existence of any of such circumstances — necessarily not evident from an examination of
the election returns themselves — demands recourse to proof independent of the election returns or to
evidence aliunde.

At this juncture, we find it necessary to mention that the results of the examination and analysis of the voters'
fingerprints and signatures indicating that many of the registered voters have been voted for by persons not even
registered in the 42 precincts of Karomatan, constituted not the sole factor which prompted the Comelec to
declare the 42 election returns as "spurious and/or manufactured." A totality of circumstances — not merely of
persuasive but of compelling character — led the Comelec to consider and conclude that the aforesaid election
returns are "spurious and/or manufactured" and therefore unworthy of inclusion in the canvass of the election
results. The Comelec heavily, relied on the following noteworthy circumstances:

1. The very high percentage of voting in the 42 precincts of Karomatan — with 100% voting in 10 precincts, and
with more than 100% voting in 7 precincts where the number of votes exceeded the number of registered voters
— in the whole town of Karomatan, there appeared an excess of 138 votes over the number of registered voters;

2. The day before the elections, the members of boards of inspectors of Karomatan were summoned to the office
of the mayor where they were "asked" to cooperate" by making some candidates win in their respect precincts;

3. The members of the boards of inspectors of Karomatan, either out of fear due to terrorism or in connivance with
those responsible for the election anomalies, all voting by persons other than those registered as vote their
respective precincts;

4. The other irregularities — among them, multiple registration, blurred fingerprints making identification
impossible, and ID pictures attached to CE forms I showing the registered voters as minors — appearing in the pre
books of voters of Karomatan making possible the penetration of the election anomalies; and

5. The notorious election record of Karomatan in obvious elections since 1953 indicating a phenomenal increase in
the voting population.8 The record shows:
 Year: No. of No. of
Registered Precincts
Voters:

1953 1,028 4

1955 1,655 4

1957 1,935 5

1959 2,929 5

1961 3,447 8

1963 5,756 13

1965 8,446 24

1967 8,000 18

1969 9,061 42

1970 9,945 42

We fully agree with the Comelec that the totality of the foregoing circumstances, taken together with the findings
of the Fingerprint Identification Division of the Comelec and of the Questioned Documents experts of the NBI,
more than suffices to completely overcome the prima facie value of the 42 election returns from Karomatan,
strongly belying their integrity and authenticity.9 These circumstances definitely point, not merely to a few isolated
instances of irregularities affecting the integrity and authenticity of the election returns, but to an organized,
directed large-scale operation to make it a mockery of the elections in Karomatan. We fined and so hold that the
collection returns from the 42 precincts in question were prepared under circumstances conclusively showing that
they are false, and are so devoid of value to be completely unworthy of inclusion in the canvass. We have no
alternative but to affirm the Comelec's findings that they are spurious and manufactured.

The only question that remains relates to Usman's plea for the holding of a special election in Karomatan. With
section 17 (e) of Republic Act 6132 in mind, Usman considers it mandatory on the part of the Comelec to call for a
special election in the precincts concerned if it found that

no voting has been held or that voting has been suspended before the hour fixed by law for the
closing of the voting in any precinct or precincts because of force majeure, violence or terrorism,
and the votes not cast therein are sufficient to affect the results of the election.

Quibranza counters that the aforestated provision of law leaves to the discretion of the Comelec the calling of a
special election. In addition, he submits that the said provision finds no application in the case at bar because the
non-fulfillment of one of the conditions laid down section 17 (e), which condition is that the "votes not cast therein
are sufficient to affect the results of the election." Usman, according to Quibranza, adduced no evidence
whatsoever to show that the "votes not cast" in Karomatan would alter the results of the election.

In resolving this question, as previously stated, the Comelec commissioners, per the resolution dated August 2,
1971, failed to reach a consensus. One commissioner believed that the canvass should be completed on the basis
of the valid returns from the other precincts of Lanao del Norte and that the proclamation of the third winning
candidate on the basis of the said canvass should logically follow; the other commissioner maintained his original
view that there is need of a special election in Karomatan.

A reading of section 17 (e) of Republic Act 6132 makes it apparent that Congress has delegated to the Comelec the
power to call for a special election — a power essentially legislative in nature, being merely an incident to or an
extension or modality of the power to fix the date of the elections. 10 However, in the proper exercise of the
delegated power, Congress saw fit to require the Comelec ascertain that (1) no voting has been held in any precint
or precincts because of force majeure, violence or terrorism and (2) that the votes not cast therein suffice to affect
the results of the elections. The language of the provision clearly requires the concurrence of the two
circumstances to justify the calling of a special election.

The Comelec concedes that what transpired in Karomatan constitutes "not merely a simple case of irregularity in
the voting but a case of no voting or no election at all. However, the Comelec attributes this to "massive fraud
rather than to force majeure, violence or terrorism the — three causes explicitly enumerated by section 17 (e).
Unlike section 17 (d) which empowers the Comelec to postpone the election in any political division or subdivision
whenever it finds that the holding of a free, orderly and honest election therein is rendered impossible by reason
of fraud, violence, coercion, terrorism, or any other serious cause or causes, section 17 (e) excludes the situation
where no voting has been held because of fraud. Furthermore, doubt exists whether or not the irregularities
committed in Karomatan properly partake of violence or terrorism. This being the case, we find that the first
circumstance is not attendant.

As to the second circumstance, therefore, we find it unnecessary to indulge in surmises. 11

ACCORDINGLY, (1) the petition is dismissed; (2) the resolution of the Commission on Elections dated August 21,
1971 is affirmed; and (3) the restraining order dated March 23, 1971 issued by this Court is lifted. The Commission
on Elections is directed to order the board of canvassers to convene without delay and forthwith proceed with and
complete the canvass of the election returns from all the precincts of Lanao del Norte, excluding therefrom all the
election returns from the 42 precincts of Karomatan, and thereafter proclaim accordingly the winning candidate
for the third Constitutional Convention seat allotted to the said province. This judgment is hereby declared
immediately executory. No pronouncement as to costs.

G.R. No. 122013 March 26, 1997

JOSE C. RAMIREZ, petitioner,

vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF GIPORLOS, EASTERN SAMAR and
ALFREDO I. GO, respondents.

MENDOZA, J.:

Petitioner Jose C. Ramirez and private respondent Alfredo I. Go were candidates for vice mayor of Giporlos,
Eastern Samar in the election of May 8, 1995. Petitioner was proclaimed winner by the Municipal Board of
Canvassers (MBC) on the basis of results showing that he obtained 1,367 votes against private respondent's 1,235
votes.1

On May 16, 1995, private respondent filed in the COMELEC a petition for the correction of what he claimed was
manifest error in the Statement of Votes (SPC No. 95-198). He alleged that, based on the entries in the Statement
of Votes, he obtained 1,515 votes as against petitioner's 1,367 votes but that because of error in addition, he was
credited with 1,235 votes as shown in the following recomputation:2
 Precinct No. Go, Alfredo I. Ramirez, Jose C.

8-A 23 43
9 23 10
8 37 49
2-A 31 48
12 50 42
12-A 65 29
7-A 36 73
20 7 19
3 88 56
1-A 54 67
13-A 43 47
18 39 12
14 19 65
4 27 37
5-A 43 67
13 37 42
2 73 79
15 49 49
11 58 18
11-A 66 32
6 115 98
1 130 52
17 54 15
7 86 67
10 60 13
5 50 55
19 41 61
21 59 46
16 52 76
——————— ——— ———
Total 29 Precincts 1,235 1,367
(Should be 1,515)

In his Answer with Counter-Protest,3 petitioner Jose C. Ramirez disputed private respondent's claim. He said that
instead of the total of the votes for private respondent Alfredo Go, it was actually the entries relating to the
number of votes credited to him in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10 which were erroneously reflected in
the Statement of Votes. According to petitioner, the entries in the Statement of Votes actually referred to the
number of votes obtained by Rodito Fabillar, a mayoralty candidate, and not to the votes obtained by private
respondent. Petitioner alleged that, as shown in the Certificate of Votes prepared by the Board of Election
Inspectors, the votes cast for Go in the precincts in question were as follows:

Precincts Nos. Per Statement Per Certificate

of Votes of Votes

11 58 32
11-A 66 18
6 115 65
1 130 61
17 54 48
 7 86 37
10 60 28

The addition of the number of votes (reflected in the Certificate of Votes) to the number of votes from
other precincts confirms the MBC's certificate that the total number of votes cast was actually 1,367 for
petitioner and 1,235 for private respondent.

On August 1, 1995, the COMELEC en banc issued its first questioned resolution, directing the MBC to reconvene
and recompute the votes in the Statement of Votes and proclaim the winning candidate for vice mayor of Giporlos,
Eastern Samar accordingly.4

Petitioner Jose C. Ramirez and public respondent Municipal Board of Canvassers filed separate "motions for
clarification." On September 26, 1995, the COMELEC en banc issued its second questioned resolution, reiterating
its earlier ruling. It rejected the MBC's recommendation to resort to election returns:5

The Municipal Board of Canvassers is reminded that pursuant to Section 231 of the Omnibus
Election Code, it is the Statement of Votes, duly prepared, accomplished during the canvass
proceedings, and certified true and correct by said Board which supports and form (sic) the basis
of the Certificate of Canvass and Proclamation of winning candidates. In fact and in deed, the
Municipal Board of Canvassers/Movant had submitted to the Commission, attached to and
forming part of the Certificate of Canvass and Proclamation a Statement of Votes without any
notice of any discrepancy or infirmity therein. To claim now that the proclamation was not based
on said Statement of Votes but on the Certificate of Votes because the entries in the Statement
of Votes are erroneous is too late a move, considering that by the Board's act of submitting said
Statement of Votes as attachment to the Certificate of Proclamation and Canvass, it had
rendered regularity and authenticity thereto.

Hence this petition for certiorari and mandamus seeking the annulment of the two resolutions, dated August 1,
1995 and September 26, 1995, of the Commission on Elections, and the reinstatement instead of the May 10, 1995
proclamation of petitioner Jose C. Ramirez as the duly elected vice mayor of Giporlos, Eastern Samar. Petitioner
contends that (1) the COMELEC acted without jurisdiction over SPC No. 95-198 because the case was resolved by it
without having been first acted upon by any of its divisions, and (2) the MBC had already made motu proprio a
correction of manifest errors in the Statement of Votes in its certification dated May 22, 1995, showing the actual
number of votes garnered by the candidates and it was a grave abuse of its discretion for the COMELEC to order a
recomputation of votes based on the allegedly uncorrected Statement of Votes.

With respect to the first ground of the petition, Art. IX, §3 of the Constitution provides:

§3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its
rules of procedure in order to expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided in division, provided that
motions for reconsideration of decisions shall be decided by the Comelec en banc. (Emphasis
added)

Although in Ong, Jr. v. COMELEC6 it was said that "By now it is settled that election cases which include pre-
proclamation controversies must first be heard and decided by a division of the Commission" 7 — and a petition for
correction of manifest error in the Statement of Votes, like SPC No. 95-198 is a pre-proclamation controversy — in
none of the cases8 cited to support this proposition was the issue the correction of a manifest error in the
Statement of Votes under 231 of the Omnibus Election Code (B.P. Blg. 881) or §15 of R.A. No. 7166. On the other
hand, Rule 27, §5 of the 1993 Rules of the COMELEC expressly provides that pre-proclamation controversies
involving, inter alia, manifest errors in the tabulation or tallying of the results may be filed directly with the
COMELEC en banc, thus

§5. Pre-proclamation Controversies Which May Be Filed Directly With the Commission. — (a) The
following pre-proclamation controversies may be filed directly with the Commission:

xxx xxx xxx

2) When the issue involves the correction of manifest errors in the tabulation or tallying of the
results during the canvassing as where (1) a copy of the election returns or certificate of canvass
was tabulated more than once, (2) two or more copies of the election returns of one precinct, or
two or more copies of certificate of canvass were tabulated separately, (3) there had been a
mistake in the copying of the figures into the statement of votes or into the certificate of
canvass, or (4) so-called returns from non-existent precincts were included in the canvass, and
such errors could not have been discovered during the canvassing despite the exercise of due
diligence and proclamation of the winning candidates had already been made.

xxx xxx xxx

(e) The petition shall be heard and decided by the Commission en banc.

Accordingly in Castromayor v. Commission on Elections,9 and Mentang v. Commission on Elections, 10 this Court
approved the assumption of jurisdiction by the COMELEC en banc over petitions for correction of manifest error
directly filed with it. Our decision today in Torres v. COMELEC 11 again gives imprimatur to the exercise by the
COMELEC en banc of the power to decide petition for correction of manifest error.

In any event, petitioner is estopped from raising the issue of jurisdiction of the COMELEC en banc. Not only did he
participate in the proceedings below but he also sought affirmative relief from the COMELEC en banc by filing a
Counter-Protest in which he asked that "entr[ies] in the statement of votes for Precinct Nos. 11, 11-A, 6, 1, 17, 7
and 10, be properly corrected for the petitioner, to reflect the correct mandate of the electorate of Giporlos,
Eastern Samar." 12 It is certainly not right for a party taking part in proceedings and submitting his case for decision
to attack the decision later for lack of jurisdiction of the tribunal because the decision turns out to be adverse to
him. 13

Petitioner next contends that motu proprio the MBC already made a correction of the errors in the Statement of
Votes in its certification dated May 22, 1995, which reads: 14

CERTIFICATION

To whom It May Concern:

This is to certify that the hereunder candidates for Municipal Vice Mayor of Giporlos, Eastern
Samar during the May 8, 1995 National and Local Elections got the number of Votes on the
precincts listed hereunder in tabulation form based in our Canvassing of Votes per Precincts.

Name of PRECINCT NUMBERS

candidate 11 11-A 6 1 17 7 10

GO, Alfredo I. 32 18 65 61 48 37 28

RAMIREZ, Jose C. 18 32 98 52 15 67 13
 This certification is issued upon request of the interested party for whatever legal purpose this
may serve him.

Giporlos, Eastern Samar.

May 22, 1995

To begin with, the corrections should be made either by inserting corrections in the Statement of Votes which was
originally prepared and submitted by the MBC, or by preparing an entirely new Statement of Votes incorporating
therein the corrections. 15 The certification issued by the MBC is thus not the proper way to correct manifest errors
in the Statement of Votes. More importantly, the corrections should be based on the election returns but here the
corrections appear to have been made by the MBC on the bases of the Certificates of Votes issued. Thus, in its
motion for clarification, the MBC said:

a. The proclamation of Jose C. Ramirez was based on the results of the certificate of canvass and
tally of votes garnered by both petitioner and private respondent which showed Jose C. Ramirez
garnering 1,367 as against 1,235 by Alfredo I. Go, or a winning margin of 132 in favor of Jose C.
Ramirez;

b. Based on the certificate of votes in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10, Alfredo I. Go
garnered only 32, 18, 65, 61, 48, 37 and 28, respectively, and the votes ascribed to the latter
shown in the statement of votes are clear typographical errors and were erroneously copied
from the votes garnered by mayoral candidate Rodito P. Fabillar from the same seven (7)
precincts in Giporlos;

c. Because of typographical errors in the statement of votes, Alfredo I. Go balooned (sic) by 280
votes, such that instead of losing by 132 votes to Jose C. Ramirez, Alfredo I. Go acquired an
unwarranted margin of 148 votes;

d. The recomputation based on the statement of votes alone without including the correct votes
on the Election Returns on the Seven (7) precincts aforesaid will frustrate the will of the people
who unquestionably voted for Jose C. Ramirez by a clear majority of 132 votes;

e. In the preparation of the certificate of canvass and proclamation, only the certificate of votes
of each candidate were considered by reason of the fact it was prepared and signed only on May
11, 1995 or one after (sic) the proclamation of the winning municipal candidates on May 10,
1995.

Certificates of Votes are issued by Boards of Election Inspectors (BEI) to watchers, pursuant to §215 of the
Omnibus Election Code (OEC). While such certificates are useful for showing tampering, alteration, falsification or
any other irregularity in the preparation of election returns, 16 there is no reason for their use in this case since the
integrity of the election returns is not in question. On the other hand, in the canvass of votes, the MBC is directed
to use the election returns. 17 Accordingly, in revising the Statement of Votes supporting the Certificate of Canvass,
the MBC should have used the election returns from the precincts in question although in fairness to the MBC, it
proposed the use of election returns but the COMELEC en banc rejected the proposal. The Statement of Votes is a
tabulation per precinct of votes garnered by the candidates as reflected in the election returns.

The Statement of Votes is a vital component of the electoral process. It supports the Certificate of Canvass and is
the basis for proclamation. 18 But in this case the Statement of Votes was not even prepared until after the
proclamation of the winning candidate. This is contrary to the Omnibus Election Code, §231 of which provides in
part:
 xxx xxx xxx

The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed
with the imprint of the thumb of the right hand of each member, supported by a statement of
votes received by each candidate in each polling place and, on the basis thereof, shall proclaim as
elected the candidates who obtained the highest number of votes cast in the province, city,
municipality or barangay.

Indeed, it appears from the Comment of the MBC that the MBC prepared its Certificate of Canvass simply on the
basis of improvised tally sheets and that it was only after the termination of the canvass, the proclamation of
petitioner Jose C. Ramirez, and the accomplishment of the Certificate of Canvass of Votes and Proclamation, that
its clerk, Rosalia Abenojar, prepared the Statement of Votes (C.E. Form No. 20-A). In a sworn report, Ms. Abenojar
herself stated that she was tired and drowsy at the time she prepared the Statement of Votes for the mayoralty
and vice mayoralty positions. Although this circumstance may support petitioner's claim that the number of votes
credited to private respondent Alfredo I. Go are actually those cast in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10 for
mayoralty candidate Rodito Fabillar, it is equally possible that Go and Fabillar obtained the same number of votes
in those precincts. That the clerk who prepared the Statement of Votes was tired and drowsy does not necessarily
mean the entries she made were erroneous. But what is clear is that the Statement of Votes was not prepared
with the care required by its importance. Accordingly, as the Solicitor General states, what the COMELEC should
have ordered the MBC to do was not merely to recompute the number of votes for the parties, but to revise the
Statement of Votes, using the election returns for this purpose. 19 As this Court ruled in Villaroya v. Commission on
Elections: 20

[T]he COMELEC has ample power to see to it that the elections are held in clean and orderly
manner and it may decide all questions affecting the elections and has original jurisdiction on all
matters relating to election returns, including the verification of the number of votes received by
opposing candidates in the election returns as compared to the statement of votes in order to
insure that the true will of the people is known. Such a clerical error in the statement of votes can
be ordered corrected by the COMELEC.(Emphasis added)

Petitioner's final contention that in any event SPC No. 95-198 must be considered rendered moot and academic by
reason of his proclamation and assumption of office is untenable. The short answer to this is that petitioner's
proclamation was null and void and therefore the COMELEC was not barred from inquiring into its nullity. 21

WHEREFORE, the petition is partially GRANTED by annulling the resolutions dated August 1, 1995 and September
26, 1995 of the Commission on Elections. The COMELEC is instead DIRECTED to reconvene the Municipal Board of
Canvassers or, if this is not feasible, to constitute a new Municipal Board of Canvassers in Giporlos, Eastern Samar
and to order it to revise with deliberate speed the Statement of Votes on the basis of the election returns
from all precincts of the Municipality of Giporlos and thereafter proclaim the winning candidate on the basis
thereof.

SO ORDERED.

[G.R. No. L-10981. April 25, 1958.]

ANACLETO LUISON, Protestant-Appellant, v. FIDEL A. D. GARCIA, Protestee-Appellee.

Jose M. Luison for Appellant.

Marcos M. Calo, Tranquilino O. Calo, Jr., Francisco Ro. Cupin and Federico A. Calo for Appellee.
 SYLLABUS

1. ELECTION; PROTEST DUE TO INELIGIBILITY; WHEN WINNING CANDIDATE DECLARED INELIGIBLE; SECOND PLACE
CANNOT BE DECLARED ELECTED. — Where the winning candidate has been declared ineligible, the reason who
obtained second place in the election cannot be declared elected since our law not only does not contain an
express provision authorizing such declaration but apparently seems to prohibit it (Villar v. Paraiso, 96 Phil., 659;
see also Naval v. Guray, 52 Phil., 654 and Topacio v. Paredes, 23 Phil., 238.)

2. ID.; PROTEST ON THE GROUND OF INELIGIBILITY AND PROTEST BASED ON FRAUDS AND IRREGULARITIES,
DISTINGUISHED. — A protest to disqualify a protestee on the ground of ineligibility is different from that of a
protest based on frauds and irregularities where it may be shown that protestant was the one really elected for
having obtained a plurality of the legal votes. In the first case, while the protestee may he ousted the protestant
will not be seated; in the second case, the protestant may assume office after protestee is unseated. The first case
is brought to court by a petition of quo warranto, while the second by instituting an election protest.

3. ID.; ID.; ACTION FOR QUO WARRANTO CANNOT BE CONVERTED INTO AN ELECTION PROTEST. — A candidate
who files a protest against one who has been proclaimed as having received the highest number of votes basing his
protest merely on the ground of his ineligibility to hold office, cannot disguise his action so as to make his protest a
justification to be seated in office. In other words, he cannot convert an action for quo warranto into an election
protest. This is because these two cases are fundamentally different in nature and in purpose. In quo warranto,
"there is not, strictly speaking, a contest, and the wreath of victory cannot be transferred from an ineligible
candidate to any other candidate," while in a protest, "the question is as to who received a plurality of the legally
cast ballots" (Topacio v. Paredes, 23 Phil., 238).

DECISION

BAUTISTA ANGELO, J.:

In the general elections held on November 8, 1955, Anacleto M. Luison and Fidel A. D. Garcia were the only
candidates for mayor of Tubay, Agusan. The certificate of candidacy of Luison was filed by the Nacionalista Party of
the locality duly signed by the chairman and secretary respectively, while the certificate of candidacy of Garcia was
filed by the local branch of the Liberal Party but it was merely signed by one who was a candidate for vice-mayor.
For this reason, the executive secretary of the Nationalista Party impugned the sufficiency of the certificate of
candidacy filed in behalf of Garcia, whereupon the Commission on Elections, after making its own investigation,
issued Resolution No. 23 declaring Garcia ineligible to run for the Office. Consequently, the Commission on
Elections, after making its own investigation, issued Resolution No. 23 declaring Garcia ineligible to run for the
Office. Consequently, the Commission on Elections who immediately implemented it by striking out the name of
Garcia from the list of registered candidates. Said secretary also relayed the instruction of the Commission on
Elections to the board of inspectors of every precinct and the board of canvassers so that they may be guided
accordingly and the votes cast for him may not be counted and instead be considered as stray votes.

At this juncture, Garcia filed an action for prohibition with the Court of First Instance of Agusan against the
municipal secretary of Tubay praying that an order be issued restraining the latter from invalidating his certificate
of candidacy as well as the votes that may be cast for him, which was however dismissed on the ground that said
court had no jurisdiction to review the ruling of the Commission on Elections on the matter. No appeal was taken
from this order which became final. Meantime, Garcia filed a motion for reconsideration of Resolution No. 23 of
the Commission on Elections but the same was denied and no appeal was likewise taken from the ruling of the
Commission.
Notwithstanding the adverse ruling of the Commission on Elections, as well as the dismissal of the petition for
prohibition sued out by Garcia, the latter continued with his candidacy and the question of his ineligibility became
an issue in the campaign. And when the time came for the counting and appreciation of the ballots, the board of
inspectors, in spite of the adverse ruling of the Commission on Elections, counted all the votes cast for Garcia as
valid and credited him with them in the election returns with the result that he garnered 869 votes as against 675
of his opponent Luison. Consequently, the municipal board of canvassers proclaimed Garcia as the mayor elect of
Tubay, Agusan.

Believing that Garcia is ineligible to hold office, Luison filed a petition of quo warranto in the proper court of first
instance for the purpose of disputing his ineligibility and securing his consequent ouster from office, but the
petition was dismissed for lack of merit on a motion filed by Respondent. Luison appealed from the ruling and the
case was docketed in the Supreme Court as G. R. No. L-10916. Luison took one step further. He also filed a protest
in the same court on the same ground that Garcia was ineligible because his certificate of candidacy was declared
null and void by the Commission on Elections.

After the reception of the evidence, the court found for protestee holding that the certificate of candidacy filed by
the latter was in substantial compliance with the law and that the Commission on Elections erred in declaring him
legally insufficient. It therefore dismissed the protest with costs against protestant. Hence the present appeal.

The question whether the certificate of candidacy of the protestee is legally sufficient is now moot it appearing
that the resolution of the Commission on Elections declaring that said certificate was not prepared in accordance
with law has become final for having the protestee failed to appeal from said resolution as required by law. In this
connection, it should be noted that while this appeal was pending consideration in this court, the quo warranto
case was passed upon wherein this Court held that said resolution is now res judicata and is binding upon the
protestee (See decision in G. R. No. L-10916, promulgated on May 20, 1957). It cannot therefore be now disputed
that protestee is ineligible to hold the office for which he was proclaimed.

The issue now to be determined is whether, the protestee being ineligible and protestant having obtained the next
highest number of votes, the latter can be declared entitled to hold the office to be vacated by the former.

Our answer is in the negative. As this Court has held, "The general rule is that the fact that a plurality or a majority
of the votes are cast for an ineligible candidate at a popular election does not entitle the candidate receiving the
next highest number of votes to be declared elected. In such case the electors have failed to make a choice and the
election is a nullity" (Llamoso v. Ferrer, Et Al., 84 Phil., 490). In a subsequent case, this Court also said that where
the winning candidate has been declared ineligible, the person who obtained second place in the election cannot
be declared elected since our law not only does not contain an express provision authorizing such declaration but
apparently seems to prohibit it (Villar v. Paraiso, 96 Phil., 659: See also Nuval v. Guray, 52 Phil., 654 and Topacio v.
Paredes, 23 Phil., 238).

Moreover, a protest to disqualify a protestee on the ground of ineligibility is different from that a protest based on
frauds and irregularities where it may be shown that protestant was the one really elected for having obtained a
plurality of the legal votes. In the first case, while the protestee may be ousted the protestant will not be seated; in
the second case, the protestant may assume office after protestee is unseated. The first case is brought to court by
a petition of quo warranto, while the second by instituting an election protest. Thus, the Supreme Court, in
defining these two remedies, said:jgc:chanrobles.com.ph

"All election disputes may be divided into two distinct classes: (1) those which pertain to the casting and counting
of the ballots; and (2) those which pertain to the eligibility of the candidates. If there be cases incapable of being
so classified, they have not been suggested.

". . . If the nature of the evidence upon which the eligibility (qualifications) of a person to hold office must be
decided is considered, it will be seen that such evidence has nothing to do with the manner of casting and counting
the votes. To what purpose would be the examination of registry lists and ballots by officers appointed and paid
for that purpose in determining the eligibility of a successful candidate for office? The eligibility of a person to be
elected to a provincial or municipal office depends upon his qualifications as a voter, his residence, his allegiance
to the United States, his age, the absence of disqualifications inflicted by the courts by way of punishment, etc.
That is, these qualifications and disqualifications do not depend upon the conduct of election inspectors, the illegal
trafficking in votes, the method of casting and counting the ballots, or the election returns. The evidence required
to establish such qualifications or disqualifications would not aid in any way in determining the questions relating
to the manner of casting and counting the ballots. E converso, would the examination of ballots aid in arriving at a
decision as to his eligibility. There is nothing in this section to indicate that the court shall receive or consider
evidence as to the personal character or circumstances of candidates.

"Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the
election is quite different from that produced by declaring a person ineligible to hold such an office. 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 opposing parties are striving for supremacy. If it be found that the successful candidate (according to the
board of canvassers) obtained a plurality in a legal manner, and another candidate was the legal 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." (Topacio v. Paredes, supra.)

Considering the fundamental difference existing between the nature of a petition for quo warranto and that of an
election protest, it may be said that a candidate who files a protest against one who has been proclaimed as having
received the highest number of votes basing his protest cannot disguise his action so as to make his protest a
justification to be seated in office. In other words, he cannot convert an action for quo warranto into an election
protest. This is because these two cases are fundamentally different in nature and in purpose. In quo warranto,
"there is not, strictly speaking, a contest, and the wreath of victory cannot be transferred from an ineligible
candidate to any other candidate", while in a protest, "the question is as to who received a plurality of the legally
cast ballots" (Topacio v. Paredes, supra). The present action, therefore, partakes of the nature of quo warranto and
as such has no reason to exist. This question is already involved in the other case (G. R. No. L-10916).

The case of Monsale v. Nico * (46 Off. Gaz., Supp. No. 11, 211) invoked by protestant is not in point. In that case
the candidate who was declared ineligible was not proclaimed because the votes cast for him were declared
nullified and the one proclaimed is the candidate who received the next highest number of votes. The trial court
found that the protestant was not ineligible because it considered his certificate of candidacy legally sufficient, and
when the case was brought to the Supreme Court on appeal the latter merely reversed the ruling of the trial court.
In that case there was no direct pronouncement that the one who received the next highest number of votes may
by declared seated. This case cannot be invoked as precedent.

Wherefore, the decision appealed from is reversed. The Court declares that neither protestee nor protestant has
been validly elected and so none is entitled to the position of mayor of Tubay, Agusan. No pronouncement as to
costs.

G.R. No. 87193 June 23, 1989

JUAN GALLANOSA FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN
REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents.

J.L. Misa & Associates for petitioner.

Lladoc, Huab & Associates for private respondent.

CRUZ, J.:

Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and
assumed office in due time. On October 27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter,
League), represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the
Commission on Elections a petition for the annulment of Frivaldo; election and proclamation on the ground that he
was not a Filipino citizen, having been naturalized in the United States on January 20, 1983. In his answer dated
May 22, 1988, Frivaldo admitted that he was naturalized in the United States as alleged but pleaded the special
and affirmative defenses that he had sought American citizenship only to protect himself against President
Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival against the unrelenting
persecution by the Martial Law Dictator's agents abroad." He added that he had returned to the Philippines after
the EDSA revolution to help in the restoration of democracy. He also argued that the challenge to his title should
be dismissed, being in reality a quo warranto petition that should have been filed within ten days from his
proclamation, in accordance with Section 253 of the Omnibus Election Code. The League, moreover, was not a
proper party because it was not a voter and so could not sue under the said section.

Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections
decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for
reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a petition
for certiorari and prohibition to ask that the said orders be set aside on the ground that they had been rendered
with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against the hearing
on the merits scheduled by the COMELEC and at the same time required comments from the respondents.

In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American
citizen and had not reacquired Philippine citizenship on the day of the election on January 18, 1988. He was
therefore not qualified to run for and be elected governor. They also argued that their petition in the Commission
on Elections was not really for quo warranto under Section 253 of the Omnibus Election Code. The ultimate
purpose was to prevent Frivaldo from continuing as governor, his candidacy and election being null and void ab
initio because of his alienage. Even if their petition were to be considered as one for quo warranto, it could not
have been filed within ten days from Frivaldo's proclamation because it was only in September 1988 that they
received proof of his naturalization. And assuming that the League itself was not a proper party, Estuye himself,
who was suing not only for the League but also in his personal capacity, could nevertheless institute the suit by
himself alone.

Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen
of the Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he
was disqualified from public office in the Philippines. His election did not cure this defect because the electorate of
Sorsogon could not amend the Constitution, the Local Government Code, and the Omnibus Election Code. He also
joined in the private respondent's argument that Section 253 of the Omnibus Election Code was not applicable
because what the League and Estuye were seeking was not only the annulment of the proclamation and election
of Frivaldo. He agreed that they were also asking for the termination of Frivaldo's incumbency as governor of
Sorsogon on the ground that he was not a Filipino.

In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American
citizen was not "impressed with voluntariness." In support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L.
396 (1955)] where a German national's naturalization in Liechtenstein was not recognized because it had been
obtained for reasons of convenience only. He said he could not have repatriated himself before the 1988 elections
because the Special Committee on Naturalization created for the purpose by LOI No. 27C had not yet been
organized then. His oath in his certificate of candidacy that he was a natural-born citizen should be a sufficient act
of repatriation. Additionally, his active participation in the 1987 congressional elections had divested him of
American citizenship under the laws of the United States, thus restoring his Philippine citizenship. He ended by
reiterating his prayer for the rejection of the move to disqualify him for being time-barred under Section 253 of the
Omnibus Election Code.

Considering the importance and urgency of the question herein raised, the Court has decided to resolve it directly
instead of allowing the normal circuitous route that will after all eventually end with this Court, albeit only after a,
long delay. We cannot permit this delay. Such delay will be inimical to the public interest and the vital principles of
public office to be here applied.

It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all
contests relating to the election, returns and qualifications of the members of the Congress and elective provincial
and city officials. However, the decision on Frivaldo's citizenship has already been made by the COMELEC through
its counsel, the Solicitor General, who categorically claims that Frivaldo is a foreigner. We assume this stance was
taken by him after consultation with the public respondent and with its approval. It therefore represents the
decision of the COMELEC itself that we may now review. Exercising our discretion to interpret the Rules of Court
and the Constitution, we shall consider the present petition as having been filed in accordance with Article IX-A
Section 7, of the Constitution, to challenge the aforementioned Orders of the COMELEC.

The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of
his election on January 18, 1988, as provincial governor of Sorsogon. All the other issues raised in this petition are
merely secondary to this basic question.

The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and
employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42
of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the
Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election
Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an
indispensable requirement for suffrage under Article V, Section 1, of the Constitution.

In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born"
citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however,
that he was naturalized as a citizen of the United States in 1983 per the following certification from the United
States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the
Philippine Consulate General in San Francisco, California, U.S.A.

OFFICE OF THE CLERK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

September 23, 1988

TO WHOM IT MAY CONCERN:

Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was naturalized
in this Court on January 20, 1983, and issued Certificate of Naturalization No. 11690178.

Petition No. 280225.

Alien Registration No. A23 079 270.

Very truly yours,

WILLIAM L. WHITTAKER

Clerk

by:

(Sgd.)

ARACELI V. BAREN

Deputy Clerk

This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer.
Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from
the persecution of the Marcos government through his agents in the United States.

The Court sees no reason not to believe that the petitioner was one of the enemies of the
Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into
embracing American citizenship. His feeble suggestion that his naturalization was not the result
of his own free and voluntary choice is totally unacceptable and must be rejected outright.

There were many other Filipinos in the United States similarly situated as Frivaldo, and some of
them subject to greater risk than he, who did not find it necessary — nor do they claim to have
been coerced — to abandon their cherished status as Filipinos. They did not take the oath of
allegiance to the United States, unlike the petitioner who solemnly declared "on oath, that I
absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince,
potentate, state or sovereignty of whom or which I have heretofore been a subject or citizen,"
meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the
impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine
citizenship despite the perils of their resistance to the Marcos regime.

The Nottebohm case cited by the petitioner invoked the international law principle of effective
nationality which is clearly not applicable to the case at bar. This principle is expressed in Article
5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows:
 Art. 5. Within a third State a person having more than one nationality shall be
treated as if he had only one. Without prejudice to the application of its law in
matters of personal status and of any convention in force, a third State shall, of
the nationalities which any such person possesses, recognize exclusively in its
territory either the nationality of the country in which he is habitually and
principally resident or the nationality of the country with which in the
circumstances he appears to be in fact most closely connected.

Nottebohm was a German by birth but a resident of Guatemala for 34 years when he applied for
and acquired naturalization in Liechtenstein one month before the outbreak of World War II.
Many members of his family and his business interests were in Germany. In 1943, Guatemala,
which had declared war on Germany, arrested Nottebohm and confiscated all his properties on
the ground that he was a German national. Liechtenstein thereupon filed suit on his behalf, as its
citizen, against Guatemala. The International Court of Justice held Nottebohm to be still a
national of Germany, with which he was more closely connected than with Liechtenstein.

That case is not relevant to the petition before us because it dealt with a conflict between the
nationality laws of two states as decided by a third state. No third state is involved in the case at
bar; in fact, even the United States is not actively claiming Frivaldo as its national. The sole
question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own
laws, regardless of other nationality laws. We can decide this question alone as sovereign of our
own territory, conformably to Section 1 of the said Convention providing that "it is for each State
to determine under its law who are its nationals."

It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas
in the present case Frivaldo is rejecting his naturalization in the United States.

If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the
petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as
amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of
Congress, by naturalization, or by repatriation.

While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has
reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by actively
participating in the elections in this country, he automatically forfeited American citizenship
under the laws of the United States. Such laws do not concern us here. The alleged forfeiture is
between him and the United States as his adopted country. It should be obvious that even if he
did lose his naturalized American citizenship, such forfeiture did not and could not have the
effect of automatically restoring his citizenship in the Philippines that he had earlier renounced.
At best, what might have happened as a result of the loss of his naturalized citizenship was that
he became a stateless individual.

Frivaldo's contention that he could not have repatriated himself under LOI 270 because the
Special Committee provided for therein had not yet been constituted seems to suggest that the
lack of that body rendered his repatriation unnecessary. That is far-fetched if not specious Such a
conclusion would open the floodgates, as it were. It would allow all Filipinos who have
renounced this country to claim back their abandoned citizenship without formally rejecting their
adoptedstate and reaffirming their allegiance to the Philippines.

It does not appear that Frivaldo has taken these categorical acts. He contends that by simply
filing his certificate of candidacy he had, without more, already effectively recovered Philippine
citizenship. But that is hardly the formal declaration the law envisions — surely, Philippine
 citizenship previously disowned is not that cheaply recovered. If the Special Committee had not
yet been convened, what that meant simply was that the petitioner had to wait until this was
done, or seek naturalization by legislative or judicial proceedings.

The argument that the petition filed with the Commission on Elections should be dismissed for
tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from
continuing to discharge his office of governor because he is disqualified from doing so as a
foreigner. 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. If,
say, a female legislator were to marry a foreigner during her term and by her act or omission
acquires his nationality, would she have a right to remain in office simply because the challenge
to her title may no longer be made within ten days from her proclamation? It has been
established, and not even denied, that the evidence of Frivaldo's naturalization was discovered
only eight months after his proclamation and his title was challenged shortly thereafter.

This Court will not permit the anomaly of a person sitting as provincial governor in this country
while owing exclusive allegiance to another country. 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.

It is true as the petitioner points out that the status of the natural-born citizen is favored by the
Constitution and our laws, which is all the more reason why it should be treasured like a pearl of
great price. But once it is surrendered and renounced, the gift is gone and cannot be lightly
restored. This country of ours, for all its difficulties and limitations, is like a jealous and possessive
mother. Once rejected, it is not quick to welcome back with eager arms its prodigal if repentant
children. The returning renegade must show, by an express and unequivocal act, the renewal of
his loyalty and love.

WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not
a citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province
of Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly
elected Vice-Governor of the said province once this decision becomes final and executory. The
temporary restraining order dated March 9, 1989, is LIFTED.

SO ORDERED.

April 26, 2017

G.R. No. 217872

ALLIANCE FOR THE FAMILY FOUNDATION, PHILIPPINES, INC. (ALFI) and ATTY. MARIA CONCEPCION S. NOCHE, in
her own behalf and as President of ALFI, JOSE S. SANDEJAS, ROSIE B. LUISTRO, ELENITA S.A. SANDEJAS, EMILY R.
LAWS, EILEEN Z. ARANETA, SALV ACION C. MONTEIRO, MARIETTA C. GORREZ, ROLANDO M. BAUTISTA, RUBEN
T. UMALI, and MILDRED C. CASTOR , Petitioners
vs.
HON. JANETTE L. GARIN, Secretary-Designate of the Department of Health; NICOLAS B.LUTERO III, Assistant
Secretary of Health, Officer-in-Charge, Food and Drug Administration; and MARIA LOURDES C. SANTIAGO,
Officer in-Charge, Center for Drug Regulation and Research, Respondents

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

G.R. No. 221866

MARIA CONCEPCION S. NOCHE, in her own behalf and as counsel of Petitioners, JOSE S. SANDEJAS, ROSIE B.
LUISTRO, ELENITA S.A. SANDEJAS, EMILY R. LAWS EILEEN Z. ARANETA, SALVACION C. MONTEIRO MARIETTA C.
GORREZ, ROLANDO M. BAUTISTA, RUBEN T. UMALI, and MILDRED C. CASTOR,Petitioners
vs.
HON. JANETTE L. GARIN, Secretary-Designate of the Department of Health; NICOLAS B. LUTERO III, Assistant
Secretary of Health; NICOLAS B. LUTERO III, Assistant Secretary of Health, Officer-in-Charge, Food and Drug
Administration; and MARIA LOURDES C. SANTIAGO, Officer-in-Charge, Center for Drug Regulation and
Research, Respondents.

RESOLUTION

MENDOZA, J.:

Subject of this resolution is the Omnibus Motion 1 filed by the respondents, thru the Office of the Solicitor General
(OSG), seeking partial reconsideration of the August 24, 2016 Decision (Decision), 2 where the Court resolved the:
[1] Petition for Certiorari, Prohibition, Mandamus with Prayer for Issuance of a Temporary Restraining Order
and/or Writ of Preliminary Prohibitory and Mandatory Injunction (G.R. No. 217872); and the [2] Petition for
Contempt of Court (G.R. No. 221866), in the following manner:

WHEREFORE, the case docketed as G.R No. 217872 is hereby REMANDED to the Food and Drugs Administration
which is hereby ordered to observe the basic requirements of due process by conducting a hearing, and allowing
the petitioners to be heard, on the re-certified, procured and administered contraceptive drugs and devices,
including Implanon and lmplanon NXT, and to determine whether they are abortifacients or non-abortifacients.

Pursuant to the expanded jurisdiction of this Court and its power to issue rules for the protection and enforcement
of constitutional rights, the Court hereby:

1. DIRECTS the Food and Drug Administration to formulate the rules of procedure in the screening,
evaluation and approval of all contraceptive drugs and devices that will be used under Republic Act No.
10354. The rules of procedure shall contain the following minimum requirements of due process: (a)
publication, notice and hearing, (b) interested parties shall be allowed to intervene, (c) the standard laid
down in the Constitution, as adopted under Republic Act No. 10354, as to what constitutes allowable
contraceptives shall be strictly followed, that is, those which do not harm or destroy the life of the unborn
from conception/fertilization, (d) in weighing the evidence, all reasonable doubts shall be resolved in
favor of the protection and preservation of the right to life of the unborn from conception/fertilization,
and (e) the other requirements of administrative due process, as summarized in Ang Tibay v. CIR, shall be
complied with.
 2. DIRECTS the Department of Health in coordination with other concerned agencies to formulate the
rules and regulations or guidelines which will govern the purchase and distribution/ dispensation of the
products or supplies under Section 9 of Republic Act No. 10354 covered by the certification from the Food
and Drug Administration that said product and supply is made available on the condition that it will not be
used as an abortifacient subject to the following minimum due process requirements: (a) publication,
notice and hearing, and (b) interested parties shall be allowed to intervene. The rules and regulations or
guidelines shall provide sufficient detail as to the manner by which said product and supply shall be
strictly regulated in order that they will not be used as an abortifacient and in order to sufficiently
safeguard the right to life of the unborn.

3. DIRECTS the Department of Health to generate the complete and correct list of the government's
reproductive health programs and services under Republic Act No. 10354 which will serve as the template
for the complete and correct information standard and, hence, the duty to inform under Section 23(a)(l)
of Republic Act No. 10354. The Department of Health is DIRECTED to distribute copies of this template to
all health care service providers covered by Republic Act No. 10354.

The respondents are hereby also ordered to amend the Implementing Rules and Regulations to conform to the
rulings and guidelines in G.R. No. 204819 and related cases.

The above foregoing directives notwithstanding, within 30 days from receipt of this disposition, the Food and
Drugs Administration should commence to conduct the necessary hearing guided by the cardinal rights of the
parties laid down in CIR v. Ang Tibay.

Pending the resolution of the controversy, the motion to lift the Temporary Restraining Order is DENIED.

With respect to the contempt petition, docketed as G.R No. 221866, it is hereby DENIED for lack of concrete basis.

SO ORDERED.3

Arguments of the Respondents

Part 1: Due Process need not be

complied with as the questioned
acts of the Food and Drug
Administration (FDA) were in
the exercise of its Regulatory Powers

In the subject Omnibus Motion, the respondents argued that their actions should be sustained, even if the
petitioners were not afforded notice and hearing, because the contested acts of registering, re-certifying,
procuring, and administering contraceptive drugs and devices were all done in the exercise of its regulatory
power.4 They contended that considering that the issuance of the certificate of product registration (CPR) by the
FDA under Section 7.04, Rule5 of the Implementing Rules and Regulations of Republic Act (R.A.) No. 10354 (RH-IRR)
did not involve the adjudication of the parties' opposing rights and liabilities through an adversarial proceeding,
the due process requirements of notice and hearing need not be complied with. 6

Stated differently, the respondents assert that as long as the act of the FDA is exercised pursuant to its regulatory
power, it need not comply with the due process requirements of notice and hearing.

Corollary to this, the respondents wanted the Court to consider that the FDA had delineated its functions among
different persons and bodies in its organization. Thus, they asked the Court to make a distinction between
the "quasi-judicial powers" exercised by the Director-General of the FDA under Section 2(b)7 of Article 3, Book I of
the Implementing Rules and Regulations (IRR) of R.A. No. 9711,8 and the "regulatory/administrative
powers"exercised by the FDA under Section 2(c )(1) 9 of the same. For the respondents, the distinction given in the
above-cited provisions was all but proof that the issuance of CPR did not require notice and hearing.

After detailing the process by which the FDA's Center for Drug Regulation and Research (CDRR) examined and
tested the contraceptives for non-abortifacience, 10 the respondents stressed that the Decision wreaked havoc on
the organizational structure of the FDA, whose myriad of functions had been carefully delineated in the IRR of R.A.
No. 9711. 11 The respondents, thus, prayed for the lifting of the Temporary Restraining Order (TR0). 12

Part 2: The requirements of due

process need not be complied with as
the elements of procedural due
process laid down in Ang Tibay v.
CIR are not applicable

The respondents further claimed in their omnibus motion that the requirements of due process need not be
complied with because the standards of procedural due process laid down in Ang Tibay v. CIR 13 were inapplicable
considering that: a) substantial evidence could not be used as a measure in determining whether a contraceptive
drug or device was abortifacient; 14 b) the courts had neither jurisdiction nor competence to review the findings of
the FDA on the non-abortifacient character of contraceptive drugs or devices; 15 c) the FDA was not bound by the
rules of admissibility and presentation of evidence under the Rules of Court; 16 and d) the findings of the FDA could
not be subject of the rule on res judicata and stare-decisis. 17

The respondents then insisted that Implanon and Implanon NXT were not abortifacients and lamented that the
continued injunction of the Court had hampered the efforts of the FDA to provide for the reproductive health
needs of Filipino women. For the respondents, to require them to afford the parties like the petitioners an
opportunity to question their findings would cause inordinate delay in the distribution of the subject contraceptive
drugs and devices which would have a dire impact on the effective implementation of the RH Law.

The Court's Ruling

After an assiduous assessment of the arguments of the parties, the Court denies the Omnibus Motion, but deems
that a clarification on some points is in order.

Judicial Review

The powers of an administrative body are classified into two fundamental powers: quasi-legislative and quasi-
judicial. Quasi-legislative power, otherwise known as the power of subordinate legislation, has been defined as
the authority delegated by the lawmaking body to the administrative body to adopt rules and regulations intended
to carry out the provisions of law and implement legislative policy. 18 "[A] legislative rule is in the nature of
subordinate legislation, designed to implement a primary legislation by providing the details thereof." 19 The
exercise by the administrative body of its quasi-legislative power through the promulgation of regulations of
general application does not, as a rule, require notice and hearing. The only exception being where the Legislature
itself requires it and mandates that the regulation shall be based on certain facts as determined at an appropriate
investigation.20

Quasi-judicial power, on the other hand, is known as the power of the administrative agency to determine
questions of fact to which the legislative policy is to apply, in accordance with the standards laid down by the law
itself.21 As it involves the exercise of discretion in determining the rights and liabilities of the parties, the proper
exercise of quasi-judicial power requires the concurrence of two elements: one, jurisdiction which must be
acquired by the administrative body and two, the observance of the requirements of due process, that is,
the right to notice and hearing.22

On the argument that the certification proceedings were conducted by the FDA in the exercise of its "regulatory
powers" and, therefore, beyond judicial review, the Court holds that it has the power to review all acts and
decisions where there is a commission of grave abuse of discretion. No less than the Constitution decrees that the
Court must exercise its duty to ensure that no grave abuse of discretion amounting to lack or excess of jurisdiction
is committed by any branch or instrumentality of the Government. Such is committed when there is a violation of
the constitutional mandate that "no person is deprived of life, liberty, and property without due process of law."
The Court's power cannot be curtailed by the FDA's invocation of its regulatory power.

In so arguing, the respondents cited Atty. Carlo L. Cruz in his book, Philippine Administrative Law.

Lest there be any inaccuracy, the relevant portions of the book cited by the respondents are hereby quoted as
follows:

xxx.

B. The Quasi-Judicial Power

xxx

2. Determinative Powers

To better enable the administrative body to exercise its quasi judicial authority, it is also vested with what is
known as determinative powers and functions.

Professor Freund classifies them generally into the enabling powers and the directing powers. The latter includes
the dispensing, the examining, and the summary powers.

The enabling vowers are those that permit the doing of an act which the law undertakes to regulate and which
would be unlawful with government approval. The most common example is the issuance of licenses to engage in
a particular business or occupation, like the operation of a liquor store or restaurant. x x x. 23 [Emphases and
underscoring supplied]

From the above, two things are apparent: one, the "enabling powers" cover "regulatory powers" as defined by the
respondents; and two, they refer to a subcategory of a quasi-judicial power which, as explained in the Decision,
requires the compliance with the twin requirements of notice and hearing. Nowhere from the above-quoted texts
can it be inferred that the exercise of "regulatory power" places an administrative agency beyond the reach of
judicial review. When there is grave abuse of discretion, such as denying a party of his constitutional right to due
process, the Court can come in and exercise its power of judicial review. It can review the challenged acts, whether
exercised by the FDA in its ministerial, quasi-judicial or regulatory power. In the past, the Court exercised its power
of judicial review over acts and decisions of agencies exercising their regulatory powers, such as
DPWH, 24 TRB, 25 NEA, 26and the SEC,27 among others. In Diocese of Bacolod v. Commission on Elections, 28 the Court
properly exercised its power of judicial review over a Comelec resolution issued in the exercise of its regulatory
power.

Clearly, the argument of the FDA is flawed.

Petitioners were Denied their

Right to Due Process
Due process of law has two aspects: substantive and procedural. In order that a particular act may not be
impugned as violative of the due process clause, there must be compliance with both the substantive and the
procedural requirements thereof. 29 Substantive due process refers to the intrinsic validity of a law that interferes
with the rights of a person to his property.30 Procedural due process, on the other hand, means compliance with
the procedures or steps, even periods, prescribed by the statute, in conformity with the standard of fair play and
without arbitrariness on the part of those who are called upon to administer it. 31

The undisputed fact is that the petitioners were deprived of their constitutional right to due process of law.

As expounded by the Court, what it found to be primarily deplorable is the failure of the respondents to act upon,
much less address, the various oppositions filed by the petitioners against the product registration, recertification,
procurement, and distribution of the questioned contraceptive drugs and devices. Instead of addressing the
petitioners' assertion that the questioned contraceptive drugs and devices fell within the definition of an
"abortifacient" under Section 4(a) of the RH Law because of their "secondary mechanism of action which induces
abortion or destruction of the fetus inside the mother's womb or the prevention of the fertilized ovum to reach
and be implanted in the mother's womb,"32 the respondents chose to ignore them and proceeded with the
registration, recertification, procurement, and distribution of several contraceptive drugs and devices.

A cursory reading of the subject Omnibus Motion shows that the respondents proffer no cogent explanation as to
why they did not act on the petitioners' opposition. As stated by the Court in the Decision, rather than provide
concrete action to meet the petitioners' opposition, the respondents simply relied on their challenge questioning
the propriety of the subject petition on technical and procedural grounds. 33 The Court, thus, finds the subject
motion to be simply a rehash of the earlier arguments presented before, with the respondents still harping on the
peculiarity of the FDA's functions to exempt it from compliance with the constitutional mandate that "no person
shall be deprived oflife, liberty and property without due process of law."

The law and the rules demand

compliance with due process
requirements

A reading of the various provisions, cited by the respondents in support of their assertion that due process need
not be complied with in the approval of contraceptive drugs or devices, all the more reinforces the Court's
conclusion that the FDA did fail to afford the petitioners a genuine opportunity to be heard.

As outlined by the respondents themselves, the steps by which the FDA approves contraceptive drugs or devices,
demand compliance with the requirements of due process viz:

Step 1. Identify contraceptive products in the database. Create another database containing the following details
of contraceptive products: generic name, dosage strength and form, brand name (if any), registration number,
manufacturer, MAH, and the period of validity of the CPR.

Step 2. Identify contraceptive products which are classified as essential medicines in the Philippine Drug
Formulary.

Step 3. Retrieve the contraceptive product's file and the CPR duplicate of all registered contraceptive products.
Create a database of the contraceptive product's history, including its initial, renewal, amendment, and/or
variation applications.

Step 4. Conduct a preliminary review of the following:

 a. general physiology of female reproductive system, including hormones involved, female reproductive
cycle, and conditions of the female reproductive system during pregnancy.

b. classification of hormonal contraceptives;

c. regulatory status of the products in benchmark countries; and

d. mechanism of action of hormonal contraceptives based on reputable journals, meta-analyses, systemic

reviews, evaluation of regulatory authorities in other countries, textbooks, among others.

Step 5. Issue a notice to all concerned MAHs, requiring them to submit scientific evidence that their product is
non-abortifacient, as defined in the RH Law and Imbong.

Step 6. Post a list of contraceptive products which were applied for re-certification for public comments in the
FDA website.

Step 7. Evaluate contraceptive products for re-certification.

A. Part I (Review of Chemistry, Manufacture and Controls)

1. Unit Dose and Finished Product Formulation

2. Technical Finished Product Specifications

3. Certificate of Analysis

B. Part II (Evaluation of Whether the Contraceptive Product is Abortifacient)

1. Evaluation of the scientific evidence submitted by the applicant and the public.

2. Review and evaluation of extraneous evidence, e.g., scientific journals, meta-analyses, etc.

Step 8. Assess and review the documentary requirements submitted by the applicant. Technical reviewers
considered scientific evidence such as meta-analyses, systemic reviews, national and clinical practice guidelines
and recommendations of international medical organizations submitted by the companies, organizations and
individuals, to be part of the review. 34 [Emphases and Underlining supplied]

The Court notes that the above-outlined procedure is deficient insofar as it only allows public comments to cases
of re-certification. It fails to allow the public to comment in cases where a reproductive drug or device is being
subject to the certification process for the first time. This is clearly in contravention of the mandate of the Court
in lmbong that the IRR should be amended to conform to it.

More importantly, the Court notes that Step 5 requires the FDA to issue a notice to all concerned MAHs and
require them to submit scientific evidence that their product is non-abortifacient; and that Step 6 requires the
posting of the list of contraceptive products which were applied for re-certification for public comments in the
FDA website.

If an opposition or adverse comment is filed on the ground that the drug or devise has abortifacient features or
violative of the RH Law, based on the pronouncements of the Court in Im bong or any other law or rule, the FDA is
duty-bound to take into account and consider the basis of the opposition.
To conclude that product registration, recertification, procurement, and distribution of the questioned
contraceptive drugs and devices by the FDA in the exercise of its regulatory power need not comply with the
requirements of due process would render the issuance of notices to concerned MAHs and the posting of a list of
contraceptives for public comment a meaningless exercise. Concerned MAHs and the public in general will be
deprived of any significant participation if what they will submit will not be considered.

Section 7.04, Rule 7 of the IRR of the RH Law (RH-IRR),35 relied upon by the respondents in support of their
claims, expressly allows the consideration of conflicting evidence, such as that supplied by the petitioners in
support of their opposition to the approval of certain contraceptive drugs and devices. In fact, the said provision
mandates that the FDA utilize the "best evidence available" to ensure that no bortifacient is approved as a family
planning drug or device. It bears mentioning that the same provision even allows an independent evidence review
group (ERG) to ensure that evidence for or against the certification of a contraceptive drug or device is duly
considered.

Structure of the FDA

As earlier mentioned, the respondents argue that the Decision "wreaked havoc on the organizational structure of
the FDA, whose myriad of functions have been carefully delineated under R.A. No. 9711 IRR." 36 Citing Section 7.04,
Rule 7 of the RH-IRR, the FDA insists that the function it exercises in certifying family planning supplies is in the
exercise of its regulatory power, which cannot be the subject of judicial review, and that it is the Director-General
of the FDA who exercises quasi-judicial powers, citing Section 2(b) of Article 3, Book I of the RH-IRR.37

The FDA wants the Court to consider that, as a body, it has a distinct and separate personality from the Director-
General, who exercises quasi-judicial power. The Court cannot accommodate the position of the respondents.
Section 6(a) of R.A. No. 3720, as amended by Section 7 of R.A. No. 9711, 38 provides that "(a) The FDA shall be
headed by a director-general with the rank of undersecretary, xxx." How can the head be separated from the
body?

For the record, Section 4 of R.A. No. 3720, as amended by Section 5 of R.A. No. 9711, also recognizes compliance
with the requirements of due process, although the proceedings are not adversarial. Thus:

Section 5. Section 4 of Republic Act No. 3720, as amended, is hereby further amended to read as follows:

"SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the Food and Drug
Administration (FDA) in the Department of Health (DOH). Said Administration shall be under the Office of the
Secretary and shall have the following functions, powers and duties:

"(a) To administer the effective implementation of this Act and of the rules and regulations issued pursuant to the
same;

"(b) To assume primary jurisdiction in the collection of samples of health products;

"(c) To analyze and inspect health products in connection with the implementation of this Act;

"(d) To establish analytical data to serve as basis for the preparation of health products standards, and to
recommend standards of identity, purity, safety, efficacy, quality and fill of container;

"(e) To issue certificates of compliance with technical requirements to serve as basis for the issuance of
appropriate authorization and spot-check for compliance with regulations regarding operation of manufacturers,
importers, exporters, distributors, wholesalers, drug outlets, and other establishments and facilities of health
products, as determined by the FDA;
"xxx

"(h) To conduct appropriate tests on all applicable health products prior to the issuance of appropriate
authorizations to ensure safety, efficacy, purity, and quality;

"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers, retailers, consumers, and
non-consumer users of health products to report to the FDA any incident that reasonably indicates that said
product has caused or contributed to the death, serious illness or serious injury to a consumer, a patient, or any
person;

"G) To issue cease and desist orders motu propio or upon verified com plaint for health products, whether or not
registered with the FDA Provided, That for registered health products, the cease and desist order is valid for thirty
(30) days and may be extended for sixty (60) days only after due process has been observed;

"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found to have caused the
death, serious illness or serious injury to a consumer or patient, or is found to be imminently injurious, unsafe,
dangerous, or grossly deceptive, and to require all concerned to implement the risk management plan which is a
requirement for the issuance of the appropriate authorization;

"(l) To strengthen the post market surveillance system in monitoring health products as defined in this Act and
incidents of adverse events involving such products;

"(m) To develop and issue standards and appropriate authorizations that would cover establishments, facilities and
health products;

"(n) To conduct, supervise, monitor and audit research studies on health and safety issues of health products
undertaken by entities duly approved by the FDA;

"(o) To prescribe standards, guidelines, and regulations with respect to information, advertisements and other
marketing instruments and promotion, sponsorship, and other marketing activities about the health products as
covered in this Act;

"(p) To maintain bonded warehouses and/or establish the same, whenever necessary or appropriate, as
determined by the director-general for confiscated goods in strategic areas of the country especially at major ports
of entry; and

"(q) To exercise such other powers and perform such other functions as may be necessary to carry out its duties
and responsibilities under this Act. [Emphases supplied]

The Cardinal Rights of Parties in

Administrative Proceedings as
laid down in Ang Tibay v. CIR

In Ang Tibay v. CJR,39 the Court laid down the cardinal rights of parties in administrative proceedings, as follows:

1) The right to a hearing, which includes the right to present one's case and submit evidence in support thereof;

2) The tribunal must consider the evidence presented;

3) The decision must have something to support itself;

4) The evidence must be substantial;

5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and
disclosed to the parties affected;

6) The tribunal or body or any of its judges must act on its or his own independent consideration of the law and
facts of the controversy and not simply accept the views of a subordinate in arriving at a decision; and

7) The board or body should, in all controversial questions, render its decision in such a manner that the parties to
the proceeding can know the various issues involved, and the reason for the decision rendered. 40

In the Decision, the Court found that the FDA certified, procured and administered contraceptive drugs and
devices, without the observance of the basic tenets of due process, that is, without notice and without public
hearing. It appeared that, other than the notice inviting stakeholders to apply for certification/recertification of
their reproductive health products, there was no showing that the respondents considered the opposition of the
petitioners. Thus, the Court wrote:

Rather than provide concrete evidence to meet the petitioners' opposition, the respondents simply relied on their
challenge questioning the propriety of the subject petition on technical and procedural grounds. The Court notes
that even the letters submitted by the petitioners to the FDA and the DOH seeking information on the actions
taken by the agencies regarding their opposition were left unanswered as if they did not exist at all. The mere fact
that the RH Law was declared as not unconstitutional does not permit the respondents to run roughshod over the
constitutional rights, substantive and procedural, of the petitioners.

Indeed, although the law tasks the FDA as the primary agency to determine whether a contraceptive drug or
certain device has no abortifacient effects, its findings and conclusion should be allowed to be questioned and
those who oppose the same must be given a genuine opportunity to be heard in their stance. After all, under
Section 4(k) of R.A. No. 3720, as amended by R.A. No. 9711, the FDA is mandated to order the ban, recall and/ or
withdrawal of any health product found to have caused death, serious illness or serious injury to a consumer or
patient, or found to be imminently injurious, unsafe, dangerous, or grossly deceptive, after due process.

Due to the failure of the respondents to observe and comply with the basic requirements of due process, the Court
is of the view that the certifications/re-certifications and the distribution of the questioned contraceptive drugs by
the respondents should be struck down as violative of the constitutional right to due process.

Verily, it is a cardinal precept that where there is a violation of basic constitutional rights, the courts are ousted
from their jurisdiction. The violation of a party's right to due process raises a serious jurisdictional issue which
cannot be glossed over or disregarded at will. Where the denial of the fundamental right to due process is
apparent, a decision rendered in disregard of that right is void for lack of jurisdiction. This rule is equally true in
quasi-judicial and administrative proceedings, for the constitutional guarantee that no man shall be deprived of
life, liberty, or property without due process is unqualified by the type of proceedings (whether judicial or
administrative) where he stands to lose the same.41

The Court stands by that finding and, accordingly, reiterates its order of remand of the case to the FDA.

Procedure in the FDA; No Trial-Type Hearing

The Court is of the view that the FDA need not conduct a trial-type hearing. Indeed, due process does not require
the conduct of a trial-type hearing to satisfy its requirements. All that the Constitution requires is that the FDA
afford the people their right to due process of law and decide on the applications submitted by MAHs after
affording the oppositors like the petitioners a genuine opportunity to present their science-based evidence. As
earlier pointed out, this the FDA failed to do. It simply ignored the opposition of the petitioners. In the case
of Perez, et al. v. Philippine Telegraph and Telephone Company, et al., 42 it was stated that:

A formal trial-type hearing is not even essential to due process. It is enough that the parties are given a fair and
reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on
which a fair decision can be based.

In the fairly recent case of Vivo v. Pagcor,43 the Court explained:

The observance of fairness in the conduct of any investigation is at the very heart of procedural due process. The
essence of due process is to be heard, and, as applied to administrative proceedings, this means a fair and
reasonable opportunity to explain one's side, or an opportunity to seek a reconsideration of the action or ruling
complained of. Administrative due process cannot be fully equated with due process in its strict judicial sense,
for in the former a formal or trial-type hearing is not always necessary, and technical rules of procedure are not
strictly applied. Ledesma v. Court of Appeals elaborates on the well-established meaning of due process in
administrative proceedings in this wise:

x x x Due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding.
Due process is satisfied when a person is notified of the charge against him and given an opportunity to explain or
defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the
person so charged to answer the accusations against him constitute the minimum requirements of due process.
The essence of due process is simply to be heard, or as applied to administrative proceedings, an opportunity to
explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained of. [Emphasis
supplied; citations omitted]

Best Evidence Available

Section 5, Rule 133 of the Rules of Court provides:

Section 5. In all cases filed before administrative or quasi-judicialbodies, a fact may be deemed established if it is
supported by substantialevidence, or the amount of relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion.

As applied to certification proceedings at the FDA, "substantial evidence" refers to the best scientific evidence
available,44 "including but not limited to: meta analyses, systematic reviews, national clinical practice guidelines
where available, and recommendations of international medical organizations," needed to support a conclusion
whether a contraceptive drug or device is an abortifacient or not. The FDA need not be bound or limited by the
evidence adduced by the parties, but it can conduct its own search for related scientific data. It can also consult
other technical scientific experts known in their fields. It is also not bound by the principle of stare decisis or res
judicata, but may update itself and cancel certifications motu proprio when new contrary scientific findings
become available or there arise manifest risks which have not been earlier predicted.

On the Competence of the Court

to review the Findings of the FDA

The fact that any appeal to the courts will involve scientific matters will neither place the actions of the
respondents beyond the need to comply with the requirements of Ang Tibay nor place the actions of the FDA in
certification proceedings beyond judicial review.

It should be pointed out that nowhere in Batas Pambansa Blg. 129, as amended, are the courts ousted of their
jurisdiction whenever the issues involve questions of scientific nature. A court is not considered incompetent
either in reviewing the findings of the FDA simply because it will be weighing the scientific evidence presented by
both the FDA and its oppositors in determining whether the contraceptive drug or device has complied with the
requirements of the law.

Although the FDA is not strictly bound by the technical rules on evidence, as stated in the Rules of Court, or it
cannot be bound by the principle of stare decisis or res judicata, it is not excused from complying with the
requirements of due process. To reiterate for emphasis, due process does not require that the FDA conduct trial-
type hearing to satisfy its requirements. All that the Constitution requires is that the FDA afford the people their
right to due process of law and decide on the applications submitted by the MAHs after affording the oppositors,
like the petitioners, a genuine opportunity to present their sciencebased evidence.

The Appellate Procedure;

Appeal to the Office of the President

Incidentally, Section 32 of R.A. No. 3720 and Section 9 of Executive Order (E.O.) No. 247 provide that any decision
by the FDA would then be appealable to the Secretary of Health, whose decision, in tum, may be appealed to the
Office of the President (OP). Thus:

Sec. 32. The orders, rulings or decisions of the FDA shall be appealable to the Secretary of Health. - An appeal
shall be deemed perfected upon filing of the notice of appeal and posting of the corresponding appeal bond.

An appeal shall not stay the decision appealed from unless an order from the Secretary of Health is issued to stay
the execution thereof.

Sec. 9. Appeals. - Decisions of the Secretary (DENR, DA, DOH or DOST) may be appealed to the Office of the
President. Recourse to the courts shall be allowed after exhaustion of all administrative remedies.

In view thereof, the Court should modify that part of the Decision which allows direct appeal of the FDA decision to
the Court of Appeals.1âwphi1 As stated in the said decision, the FDA decision need not be appealed to the
Secretary of Health because she herself is a party herein. Considering that the Executive

Secretary is not a party herein, the appeal should be to the OP as provided in Section 9.

On the Prayer to Lift the TRO

The respondents lament that the assailed decision undermines the functions of the FDA as the specialized agency
tasked to determine whether a contraceptive drug or device is safe, effective and non-abortifacient. They also
claim that the assailed decision requiring notice and hearing would unduly delay the issuance of CPR thereby
affecting public access to State-funded contraceptives. Finally, in a veritable attempt to sow panic, the
respondents claim that the TRO issued by the Court would result in "a nationwide stockout of family planning
supplies in accredited public health facilities and the commercial market. "45

On this score, it should be clarified that the Decision simply enjoined the respondents from registering,
recertifying, procuring, and administering only those contraceptive drugs and devices which were the subjects of
the petitioners' opposition, specifically Implanon and Implanon NXT. It never meant to enjoin the processing of the
entire gamut of family planning supplies that have been declared as unquestionably non-abortifacient. Moreover,
the injunction issued by the Court was only subject to the condition that the respondents afford the petitioners a
genuine opportunity to their right to due process.

As the Decision explained, the Court cannot lift the TRO prior to the summary hearing to be conducted by the FDA.
To do so would render the summary hearing an exercise in futility. Specifically, the respondents would want the
Court to consider their argument that Implanon and Implanon NXT have no abortifacient effects. According to
them, "the FDA tested these devices for safety, efficacy, purity, quality, and non-abortiveness prior to the issuance
of certificates of registration and recertification, and after the promulgation of Imbong." 46 The Court, however,
cannot make such determination or pronouncement at this time. To grant its prayer to lift the TRO would
be premature and presumptuous. Any declaration by the Court at this time would have no basis because the FDA,
which has the mandate and expertise on the matter, has to first resolve the controversy pending before its office.

This Court also explained in the Decision that the issuance of the TRO did not mean that the FDA should stop
fulfilling its mandate to test, analyze, scrutinize, and inspect other drugs and devices. Thus:

Nothing in this resolution, however, should be construed as restraining or stopping the FDA from carrying on its
mandate and duty to test, analyze, scrutinize, and inspect drugs and devices. What are being enjoined are the
grant of certifications/re-certifications of contraceptive drugs without affording the petitioners due process, and
the distribution and administration of the questioned contraceptive drugs and devices including Implanon and
Implanon NXT until they are determined to be safe and non-abortifacient.47

On Delay

The respondents claim that this judicial review of the administrative decision of the FDA in certifying and
recertifying drugs has caused much delay in the distribution of the subject drugs with a dire impact on the effective
implementation of the RH Law.

In this regard, the respondents have only themselves to blame. Instead of complying with the orders of the Court
as stated in the Decision to conduct a summary hearing, the respondents have returned to this Court, asking the
Court to reconsider the said decision claiming that it has wreaked havoc on the organizational structure of the
FDA.

Had the FDA immediately conducted a summary hearing, by this time it would have finished it and resolved the
opposition of the petitioners.1âwphi1 Note that there was already a finding by the FDA, which was its basis in
registering, certifying and recertifying the questioned drugs and devices. The pharmaceutical companies or the
MAHs need not present the same evidence it earlier adduced to convince the FDA unless they want to present
additional evidence to fortify their positions. The only entities that would present evidence would be the
petitioners to make their point by proving with relevant scientific evidence that the contraceptives have
abortifacient effects. Thereafter, the FDA can resolve the controversy.

Indeed, in addition to guaranteeing that no person shall be deprived of life, liberty and property without due
process of law,48 the Constitution commands that "all persons shall have the right to a speedy disposition of their
cases before all judicial, quasi-judicial and administrative bodies."49

WHEREFORE, the August 24, 2016 Decision is MODIFIED. Accordingly, the Food and Drug Administration is
ordered to consider the oppositions filed by the petitioners with respect to the listed drugs, including Implanon
and Implanon NXT, based on the standards of the Reproductive Health Law, as construed in lmbong v. Ochoa, and
to decide the case within sixty (60) days from the date it will be deemed submitted for resolution.

After compliance with due process and upon promulgation of the decision of the Food and Drug Administration,
the Temporary Restraining Order would be deemed lifted if the questioned drugs and devices are found not
abortifacients.

After the final resolution by the Food and Drug Administration, any appeal should be to the Office of the President
pursuant to Section 9 of E.O. No. 247.
As ordered in the August 24, 2016 Decision, the Food and Drug Administration is directed to amend the
Implementing Rules and Regulations of R.A. No. 10354 so that it would be strictly compliant with the mandates of
the Court in lmbong v. Ochoa.

SO ORDERED

G.R. No. 209331, April 24, 2015

DEPARTMENT OF FINANCE, REPRESENTED BY HON. CESAR V. PURISIMA IN HIS OFFICIAL CAPACITY AS

SECRETARY, AND THE BUREAU OF CUSTOMS, REPRESENTED BY HON. ROZZANO RUFINO B. BIAZON, IN HIS
OFFICIAL CAPACITY AS COMMISSIONER OF CUSTOMS, Petitioners, v. HON. MARINO M. DELA CRUZ, JR., IN HIS
CAPACITY AS EXECUTIVE JUDGE, REGIONAL TRIAL COURT, MANILA, HON. FELICITAS O. LARON-CACANINDIN, IN
HER CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL COURT, MANILA, BRANCH 17, RONNIE C. SILVESTRE,
EDWARD P. DELA CUESTA, ROGEL C. GATCHALIAN, IMELDA D.CRUZ, LILIBETH S. SANDAG, RAYMOND P.
VENTURA, MA. LIZA S. TORRES, ARNEL C. ALCARAZ, MA. LOURDES V. MANGAOANG, FRANCIS AGUSTIN Y. ERPE,
CARLOS T. SO, MARIETTA D. ZAMORANOS, CARMELITA M. TALUSAN,1 AREFILES H. CARREON,2 AND ROMALINO
G. VALDEZ, Respondents.

DECISION

CARPIO, J.:

The Case

Petitioners assail the Order dated 4 October 20133 issued by Judge Felicitas O. Laron-Cacanindin (Judge Laron-
Cacanindin) of the Regional Trial Court of Manila, Branch 17 (RTC Branch 17), in Civil Case No. 13-130820. The
Order extended the 72-hour Temporary Restraining Order (TRO) issued by Executive Judge Marino M. Dela Cruz, Jr.
(Executive Judge Dela Cruz) in favor of respondents Silvestre, et al.
4
to 20 days or until 21 October 2013 without need of posting bond.

The Antecedent Facts

The case stemmed from the issuance of Executive Order No. 140 (EO 140) on 2 September 2013, which created the
Customs Policy Research Office (CPRO) in the Department of Finance (DOF). EO 140 states that the CPRO "shall be
responsible for reviewing the customs administration policies, rules and procedures, and thereafter providing
sound recommendations for the improvement of the same." Section 3 of EO 140 provides that "CPRO shall be
composed of its organic personnel, as approved by the Department of Budget and Management (DBM) upon
recommendation of the DOF Secretary, augmented and reinforced by DOF and BOC personnel as well as those
detailed or seconded from other agencies, whether attached to the DOF or not. x x x." Section 9 of EO 140 states
that it shall "take effect immediately upon publication in two (2) newspapers of general circulation." EO 140 was
published in Manila Bulletin and Philippine Star on 17 September 2013. On the same day of the publication of EO
140, Bureau of Customs (BOC) Commissioner Rozzano Rufino B. Biazon (Commissioner Biazon) issued Customs
Personnel Order No. B-189-2013 (CPO 189-2013) detailing 27 BOC personnel holding the positions of Collector of
Customs V and VI, including respondents in this case, to CPRO "effective immediately and valid until sooner
revoked." CPO 189-2013 was approved by DOF Secretary Cesar V. Purisima (Secretary Purisima). On 30 September
2013, respondents filed an action for Declaratory Relief with Application for Temporary Restraining Order and/or
Writ of Preliminary Injunction before the Regional Trial Court (RTC) of Manila. On 1 October 2013, Executive Judge
Dela Cruz issued a TRO for a period of 72 hours enjoining petitioners or any person acting for and in their behalf
from implementing CPO 189-2013. Thereafter, the case was raffled to the sala of Judge Laron-Cacanindin. In the
assailed Order of 4 October 2013, Judge Laron-Cacanindin extended Executive Judge Dela Cruz's 72-hour TRO for
20 days or until 21 October 2013. She then set the hearing for the issuance of a preliminary injunction on 18
October 2013. On 21 October 2013, petitioners filed a Petition for Certiorari and Prohibition before this Court, with
prayer for the issuance of a TRO or a writ of preliminary mandatory injunction. Petitioners alleged that the case
involves personnel action affecting public officers which is under the exclusive jurisdiction of the Civil Service
Commission (CSC). Petitioners also alleged that respondents failed to exhaust all administrative remedies available
to them before filing the petition before the RTC. Petitioners also alleged that CPO 189-2013 is an internal
personnel order with application that is limited to and only within BOC and as such, it cannot be the subject of an
action for declaratory relief. In their Comment, respondents alleged that the case involves the validity and
constitutionality of CPO 189-2013, and thus, it is beyond the jurisdiction of the CSC. Respondents further alleged
that EO 140 violated Article 2 of the Civil Code when it became effective immediately after its publication. In their
Reply, petitioners alleged that respondents only assailed the validity of EO 140 to justify their filing of an action for
declaratory relief. As regards its effectivity, petitioners alleged that EO 140 states that it shall "take effect
immediately upon publication in two (2) newspapers of general circulation." In an Order dated 21 October 2013,
Judge Laron-Cacanindin denied respondents' application for the issuance of a writ of preliminary injunction. In an
Order dated 5 November 2013, Judge Laron-Cacanindin inhibited herself from further hearing the case.

The Issues

The issues for determination by this Court are the following:

1. 1. Whether the RTC has jurisdiction over the action for declaratory relief filed by respondents;
2. 2. Whether respondents failed to exhaust administrative remedies in filing the action before the RTC;
3. 3. Whether EO 140 violated Article 2 of the Civil Code when it became effective immediately after its
publication; and
4. 4. Whether CPO 189-2013 was validly issued.

The Ruling of this Court

Jurisdiction over the Petition

The CSC has jurisdiction over all employees of government branches, subdivisions, instrumentalities, and agencies,
including government-owned or controlled corporations with original charters.5 The CSC is the sole arbiter of
controversies relating to the civil service.6 The rule is that disciplinary cases and cases involving personnel actions,
including "appointment through certification, promotion, transfer, reinstatement, reemployment, detail,
reassignment, demotion, and separation," are within the exclusive jurisdiction of the CSC.7 This rule is embodied in
Section 1, Rule V of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil
Service Laws (Omnibus Rules) which states:
SECTION 1.x x x. As used in these Rules, any action denoting movement or progress of personnel in the civil service
shall be known as personnel action. Such action shall include promotion, transfer, reinstatement, reemployment,
detail, secondment, reassignment, demotion and separation, x x x.

Under Section 8, Rule VII of the Omnibus Rules, "[a] detail is the movement of an employee from one department
or agency which is temporary in nature, which does not involve a reduction in rank, status or salary and does not
require the issuance of another appointment." CPO 189-2013 is an order detailing personnel from the BOC to
CPRO under the DOF. A reading of the petition filed before the RTC shows that respondents were questioning their
mass detail and reassignment to CPRO. According to respondents, their detail was carried out in bad faith and was
meant to remove them from their permanent positions in the BOC. The action appears to be a personnel action
under the jurisdiction of the CSC. However, the petition went beyond questioning the detail of respondents.
Respondents further assailed the validity and constitutionality of CPO 189-2013. Respondents alleged that CPO
189-2013 was issued even before EC) 140, pursuant to which CPO 189-2013 was issued, became effective.
Respondents alleged that CPO 189-2013 was issued to beat the deadline of the Commission on Elections' ban on
personnel movement from 28 September 2013 to 20 October 2013 due to the scheduled barangay elections.
When respondents raised the issue of validity and constitutionality of CPO 189-2013, the issue took the case
beyond the scope of the CSC's jurisdiction because the matter is no longer limited to personnel action. Thus, the
RTC did not abuse its discretion in taking cognizance of the action.

Failure to Exhaust Administrative Remedies

Petitioners allege that respondents failed to exhaust their administrative remedies before filing the case with the
RTC. The doctrine of exhaustion of administrative remedies allows administrative agencies to carry out their
functions and discharge their responsibilities within the specialized areas of their respective competence.8 The
doctrine entails lesser expenses and provides for the speedier resolution of controversies. 9

Therefore, direct recourse to the trial court, when administrative remedies are available, is a ground for dismissal
of the action. The doctrine, however, is not without exceptions. Among the exceptions are: (1) where there is
estoppel on the part of the party invoking the doctrine; (2) where the challenged administrative act is patently
illegal, amounting to lack of jurisdiction; (3) where there is unreasonable delay or official inaction that will
irretrievably prejudice the complainant; (4) where the amount involved is relatively so small as to make the rule
impractical and oppressive; (5) where the question involved is purely legal and will ultimately have to be decided
by the courts of justice; (6) where judicial intervention is urgent; (7) where the application of the doctrine may
cause great and irreparable damage; (8) where the controverted acts violate due process; (9) where the issue of
non-exhaustion of administrative remedies had been rendered moot; (10) where there is no other plain, speedy
and adequate remedy; (11) where strong public interest is involved; and (12) in quo warranto proceedings.10

In this case, respondents allege that CPO 189-2013 is contrary to law and unconstitutional. Respondents assail CPO
189-2013 as patently illegal, arbitrary, and oppressive. This case clearly falls within the exceptions where
exhaustion of administrative remedies need not be resorted to by respondents.

Effectivity of EO 140

Respondents allege that EO 140 took effect only on 2 October 2013, fifteen days after its publication in two
newspapers of general circulation. Hence, respondents argue that when CPO 189-2013 was issued, EO 140 was not
yet effective. Article 2 of the Civil Code of the Philippines, as amended by Executive Order No. 200, 11 is clear on this
issue. It states:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official
Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.
The proviso "unless it is otherwise provided" refers to an effectivity date other than after fifteen days following the
completion of the law's publication.
12
Thus, it is within the discretion of the legislature, or the Executive Department in this case, whether to shorten
or extend the fifteen-day period13 as long as there is compliance with the requirement of publication. Here, Section
9 of EO 140 provides that the "order shall take effect immediately upon publication in two (2) newspapers of
general circulation." EO 140 was published in Manila Bulletin and Philippine Star on 17 September 2013. As such,
EO 140 took effect on 17 September 2013. In addition, the Court already ruled that "[interpretative regulations
and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the
public, need not be published."14EO 140 is an internal regulation that affects primarily the personnel of the DOF
and the BOC. It remains valid even without publication.

Validity of CPO 189-2013

Respondents assail the validity of CPO 189-2013. Respondents allege that under EO 140, CPRO shall be composed
of its organic personnel, as approved by the DBM upon recommendation of the DOF Secretary. The organic
personnel was supposed to be augmented and reinforced by DOF and BOC personnel. Respondents allege that
they were detailed to CPRO even before its organic personnel could be constituted. We rule for respondents.
Section 3 of EO 140 provides:
SECTION 3. Personnel and Staffing Complement. The CPRO shall be composed of its organic personnel, as
approved by the Department of Budget and Management (DBM) upon recommendation of the DOF Secretary,
augmented and reinforced by DOF and BOC personnel as well as those detailed or seconded from other agencies,
whether attached to the DOF or not. In addition, the CPRO, upon approval of the DOF Secretary, may hire or
engage technical consultants to provide necessary support in the performance of its mandate.

Respondents were supposed to augment and reinforce the existing organic personnel of CPRO. Yet, at the time of
respondents' detail, CPRO had not been formally organized. CPRO had no organic personnel that had been
approved by the DBM upon recommendation of the DOF Secretary. The DOF Secretary had yet to promulgate rules
and regulations and to prescribe procedures and processes to enable CPRO to effectively exercise its powers and
duties, as required by Section 4 of EO 140. In addition, under Section 8, Rule VII of the Omnibus Rules, a detail is
temporary in nature. In fact, detail of employees is only allowed for a maximum, period for those occupying
professional, technical, and scientific positions.15

Section 8, Rule VII of the Omnibus Rules provides:

SEC. 8. A detail is the movement of an employee from one department or agency to another which is temporary in
nature, which does not involve a reduction in rank, status or salary and does not require the issuance of another
appointment. The employee detailed receives his salary only from his mother unit/agency. Detail shall be allowed
only for a maximum period in the case of employees occupying professional, technical and scientific position. If the
employee believes that there is no justification for the detail, he may appeal his case to the Commission. Pending
appeal, the decision to detail the employee shall be executory unless otherwise ordered by the Commission.
Section 2 of CSC Resolution No. 021181, dated 13 September 2002, 16 clarified the maximum period of detail of
employees. It states:
Section 2. Duration of the detail. The detail shall be allowed only for a maximum period of one year. Details
beyond one year may be allowed provided it is with the consent of the detailed employee. The extension or
renewal of the period of the detail shall be within the authority of the mother agency. If the employee believes
that there is no justification for the detail, he/she may appeal his/her case to the proper Civil Service Commission
Regional Office. Pending appeal, the detail shall be executory unless otherwise ordered by said regional office.
Decision of said regional office may be further appealed to the Commission en banc.
In this case, CPO 189-2013 did not provide for the period of respondents' detail. It only provided that the order
"shall be effective immediately and valid until sooner revoked," making the detail of respondents indefinite. There
was nothing to show that respondents were occupying professional, technical, and scientific positions that would
have allowed their detail for the maximum period provided under Section 8, Rule VII of the Omnibus Rules.
Further, CSC Resolution No. 021181 did not distinguish between an ordinary employee and an employee occupying
professional, technical, and scientific position. Hence, it should have been specified that the maximum period of
respondents' detail should not exceed one year. Petitioners assert, and we quote:
There is a cancer of corruption we must extinguish. The drive to rid the government of graft and corruption
deserves the support of everyone. The principle of good governance cannot, should not, be trivialized nor
oversimplified by tenuous whimpering and individualism intended to detract from the urgent need to cleanse the
Republic from a mainstream culture of unabated corruption, perpetuated with impunity and sense of self-
entitlement. The issue at hand is not about who, but what; it is not about individual loss, but about national gain.
Whether from the birth pains of reform, this nation can gain a foothold, nay, a stride into restoring this nation into
its prideful place from the clutches of a "kleptocratic mafia" that had gained a strangehold into one of the nation's
primary sources of revenue.17

Indeed, we commend and support the reforms being undertaken in the different agencies of the government.
However, we cannot allow department heads to take shortcuts that will undermine and disregard the basic
procedures of the law.
WHEREFORE, we PARTIALLY GRANT the petition. We sustain the validity of Executive Order No. 140. We rule that
the Regional Trial Court has jurisdiction over the action for declaratory relief filed by respondents. We further rule
that Customs Personnel Order No. B-189-2013 was not validly issued.

SO ORDERED.

Peralta,*Del Castillo, and Mendoza, JJ., concur. Leonen, J., see separate dissenting opinion.

Endnotes:

*
Designated acting member per Raffle dated 10 August 2015.
1
Carmelita M. Talusan withdrew as petitioner in Civil Case No. 13-130820, noted by the trial court in its Order
dated 4 October 2013. Rollo, p. 58.
2
Arefiles H. Carreon manifested his intent to withdraw as petitioner in Civil Case No. 13-130820 per letter to
counsel dated 16 October 2013. Id. at 119.
3
Id. at 57-63.
4
Ronnie C. Silvestre, Edward P. Dela Cuesta, Rogel C. Gatchalian, Imelda D. Cruz, Lilibeth S. Sandag, Raymond P.
Ventura, Ma. Liza S. Torres, Arnel C. Alacaraz, Ma. Lourdes V. Mangaoang, Francis Agustin Y. Erpe, Carlos T. So,
Marietta D. Zamoranos, Carmelita M. Talusan, Arefiles H. Carreon, and Romalino G. Valdez.
5
Corsiga v. Judge Defensor, 439 Phil. 875 (2002).
6
Id.
7
Olanda v. Bugayong, 459 Phil. 626 (2003).
8
Addition Hills Mandahiyong Civic & Social Organization, Inc. v. Megaworld Properties & Holdings, Inc., G.R. No.
175039, 18 April 2012, 670 SCRA 83.
9
Id.
10
Vigilar v. Aquino, 654 Phil. 755 (2011).
11
Providing for the Publication of Laws Either in the Official Gazette or in a Newspaper of General Circulation in the
Philippines as a Requirement for their Effectivity.
12
Nagkakaisang Maralila ng Sitio Masigasig, Inc. v. Military Shrine Services-Philippine Veteran Affairs Office,
Department of National Defense, G.R. No. 187587, 5 June 2013, 697 SCRA 359.
13
Tañada v. Tuvera, 230 Phil. 528 (1986), Resolution on Motion for Reconsideration.
14
Id.
15
Section 26(6), Chapter V, Book V, Title I of Executive Order No. 292 provides that the detail shall be allowed
"only for a limited period in the case of employees occupying professional, technical and scientific positions." 16 As
contained in CSC Memorandum Circular No. 21, Series of 2002.
17
Rollo, p. 10.

DISSENTING OPINION

LEONEN, J.:

Respectfully, I dissent. The Civil Service Commission has exclusive jurisdiction over questions regarding personnel
actions affecting civil service employees.3 It is the sole arbiter that decides controversies regarding the civil service
at first instance.4 Courts should not directly assume jurisdiction based on allegations of unconstitutionality and
invalidity of government regulations when the question, in essence, involves a personnel action. This is a Petition
for certiorari and prohibition with very urgent prayer for the immediate issuance of a temporary restraining order
and/or writ of preliminary mandatory injunction5filed by the Department of Finance and the Bureau of Customs
before this court, assailing the Manila Regional Trial Court's Order6 dated October 1, 2013 issued by Executive
Judge Marino M. Dela Cruz, Jr., the Order7 dated October 4, 2013 issued by Presiding Judge Felicitas O. Laron-
Cacanindin, and all other subsequent Orders preventing the implementation of Customs Personnel Order No. B-l
89-2013.8 The Department of Finance and Bureau of Customs also pray for the dismissal of the Petition for
declaratory relief filed by private respondents before the Regional Trial Court of Manila. 9 On September 2, 2013,
President Benigno Aquino III issued Executive Order No. 14010 creating the Customs Policy Research Office in the
Department of Finance.11 The Customs Policy Research Office shall review the Bureau of Customs' administration
policies, rules, and procedures, and provide recommendations for their improvement. 12 Section 3 of Executive
Order No. 140 provides for the composition of the Customs Policy Research Office:

SECTION 3. Personnel and Staffing Complement. The [Customs Policy Research Office] shall be composed of its
organic personnel, as approved by the Department of Budget and Management (DBM) upon recommendation of
the [Department of Finance] Secretary, augmented and reinforced by [Department of Finance] and [Bureau of
Customs] personnel as well as those detailed or seconded from other agencies, whether attached to the
[Department of Finance] or not. In addition, the [Customs Policy Research Office], upon approval of the
[Department of Finance] Secretary, may hire or engage technical consultants to provide necessary support in the
performance of its mandate.13
Executive Order No. 140 was published on September 17, 2013 in Manila Bulletin and Philippine Star. 14Section 9 of
Executive Order No. 140 provides:
SECTION 9. Effectivity. This Order shall take effect immediately upon publication in two (2) newspapers of general
circulation.15
On September 17, 2013, or on the same day of publication of Executive Order No. 140, Bureau of Customs
Commissioner Rozzano Rufino B. Biazon issued Customs Personnel Order No. B-189-2013,16with the approval of
Department of Finance Secretary Cesar V. Purisima.17 Customs Personnel Order No. B-189-2013 detailed 27 Bureau
of Customs personnel to the Customs Policy Research Office under the Department of Finance. 18 Thus:

September 17, 2013 CUSTOMS PERSONNEL ORDER No. B-189-2013 Under Section 3 of Executive Order No. 140,
series of 2013, the Customs Policy Research Office ("the CPRO") shall be composed of its organic personnel,
augmented and reinforced by personnel from the Department of Finance and Bureau of Customs as well [as] those
detailed or seconded from other agencies. Pursuant to the foregoing, the following personnel are detailed from
the Bureau of Customs to [Customs Policy Research Office] under the Department of Finance:

FULL NAME
(Surname, First Name)

POSITION TITLE AND SALARY GRADE

1. GATCHALIAN, ROGEL CRUZ Collector of Customs VI (26)

2. SO, CARLOS TAN Collector of Customs VI (26)
3. DELA CUESTA, EDUARD PALAFOX Collector of Customs VI (26)
4. BELMONTE, RICARDO RACIMO Collector of Customs VI (26)
5. MOLINA, ADELINA SANTOS ESTRELLA Collector of Customs VI (26)
6. SILVESTRE, RONNIE CRUZ Collector of Customs VI (26)
7. MANDANGAN, MACABANTUG DIMAPUNTUG Collector of Customs V (25)
8. BAUZON, PR1SCILLA DE VERA Collector of Customs V (25)
9. CRUZ, IMELDA DE JESUS Collector of Customs V (25)
10. TOGONON, MA. SONIA IRINEA CALUYO Collector of Customs V (25)
11. SANDAG L1LIBETH SUMBILLA Collector of Customs V (25)
12. VENTURA, RAYMOND P. Collector of Customs V (25)
13. ROQUE, TERESITA SIOSON Collector of Customs V (25)
14. TORRES, MA. LIZA SEBASTIAN Collector of Customs V (25)
15. MARTIN, MARITESS THEODOSSIS Collector of Customs V (25)
16. ALCARAZ, ARNEL CRUZ Collector of Customs V (25)
17. ALCID, TOMAS LADERA Collector of Customs V (25)
18. MANGAOANQ MA. LOURDES VILLAMAR Collector of Customs V (25)
19. ERPE, FRANCIS AGUSTIN YANCHA Collector of Customs V (25)
20. VILLAGARCIA, ROGELIO VELACRUZ Collector of Customs V (25)
21. ZAMORANOS, MARIETTA DANTE Collector of Customs V (25)
22. TAN, JUAN NAT1VIDAD Collector of Customs V (25)
23. TALUSAN, CARMELITA MANAHAN Collector of Customs V (25)
24. CARREON, AREFILES HAMOY Collector of Customs V (25)
25. PACARDO, RUSTUM LANUEVO Collector of Customs V (25)
26. VALDEZ, ROMALINO GABRIEL Collector of Customs V (25)
27. PABLO, TALEK J. Collector of Customs V (25)

All orders, circulars, memoranda, issuances contrary to or inconsistent herewith are hereby revoked and/or
modified, and all concerned shall be guided accordingly. This Order shall be effective immediaitely and valid until
sooner revoked. For strict compliance. (signed) ROZZANO RUFINO B. BIAZON Commissioner of Customs
APPROVED: (signed) CESAR V. PURISIMA Secretary Department of Finance Date:________ 19

Only 1220 of the affected employees complied with the directive in Customs Personnel Order No. B-189-2013 and
reported to the Customs Policy Research Office after its effectivity on September 17, 2014. 21The other
1522 affected employees refused to comply with the Order23 and instead filed on September 30, 2013 a
Petition24 for declaratory relief with an application for a temporary restraining order and/or a writ of preliminary
injunction before the Regional Trial Court of Manila.25cralawred The 15 employees assailed the validity of Customs
Personnel Order No. B-l89-2013.26 They argued that Customs Personnel Order No. B-189-2013 violated (a) Section
70327 of Republic Act No. 1937 or the Tariff and Customs Code;28 (b) their right to security of tenure as career
service officers defined under Book V, Title I, Subtitle A, Chapter 2, Section 7 of Executive Order No. 292; 29 and (c)
Section 3 of Executive Order No. 140.30 They further argued that Customs Personnel Order No. B-189-2013 was
invalid for having been issued prior to the effectivity of Executive Order No. 140. 31 They relied on Article 232 of the
Civil Code that provides that laws become effective 15 days after complete publication. 33 On October 1, 2013,
Executive Judge Marino M. Dela Cruz, Jr. granted a 72-hour temporary restraining order to stop the
implementation of Customs Personnel Order No. B-189-2013.34 The case was then raffled to Branch 17 presided by
Judge Felicitas O. Laron-Cacanindin (Judge Laron-Cacanindin).35

On October 4, 2013,36 the Department of Finance and the Bureau of Customs filed a Motion to Dismiss. 37They
argued that the Regional Trial Court had no jurisdiction over the employees' Petition for declaratory relief and that
the requisites for the filing of a Petition for declaratory relief were lacking.38 In the Order dated October 4, 2013,
Judge Laron-Cacanindin extended the temporary restraining order to 20 days after finding that Customs Personnel
Order No. B-189-2013 had "violate[d] the rules on detail because it failed to provide the duration of the
detail."39 In the same Order, Judge Laron-Cacanindin stated that the Order was without prejudice to further
findings of the court after trial on the merits of the main case for declaratory relief. 40 In the Order41 dated October
21, 2013, Judge Laron-Cacanindin denied the employees' application for a writ of preliminary injunction. 42 The
denial of their application for a writ of preliminary injunction prompted six (6) of the employees who filed the
Petition to report to the Customs Policy Research Office.43 The returning employees reasoned that they reported
for work so they would not be charged with insubordination.44

On October 21, 2013, the Department of Finance and Bureau of Customs filed this Petition for certiorari and
prohibition.45 This court required the 15 employees to file a Comment on the Petition. 46 After filing the
Comment,47 the Department of Finance and Bureau of Customs were ordered to file a Reply.48 In their Petition for
certiorari, the Department of Finance and Bureau of Customs argued that the Civil Service Commission, not the
Regional Trial Court, had jurisdiction over the subject matter of this case and that the 15 employees failed to
exhaust all available administrative remedies before filing their Petition for declaratory relief. 49 According to the
Department of Finance and Bureau of Customs, Customs Personnel Order No. B-189-2013 was a personnel action,
and questions involving personnel actions in the civil service should be lodged before the Civil Service
Commission.50 Further, the Department of Finance and Bureau of Customs argued that some of the requirements
for filing a Petition for declaratory relief were absent.51 First, a declaratory relief is available only when the
government issuance being questioned is a national law or an ordinance of general application, 52 Since Customs
Personnel Order No. B-189-2013 was an internal personnel order whose application was limited within the Bureau
of Customs, it cannot be a subject of a Petition for declaratory relief. 53 Second, the declaratory relief was no longer
available because Customs Personnel Order No. B-189-2013 had been breached prior to the filing of the
Petition.54 The 15 employees allegedly committed a breach when they failed to report to the Customs Policy
Research Office upon the effectivity of Customs Personnel Order No. B-189-2013 on September 17, 2013.55 Third, a
declaratory relief was not available to the 15 employees because they had an adequate remedy with the Civil
Service Commission.56 Regarding the duration of the detail, the Department of Finance and Bureau of Customs
argued that the detail was not indefinite and that pursuant to Civil Service Commission Resolution No. 021181 57 or
the Policies on Detail, the detail shall only last for at most, one (1) year. 58

In their Comment dated January 8, 2014, the 15 employees countered that the Regional Trial Court had jurisdiction
as the main issue was the validity and constitutionality of Customs Personnel Order No. B-189-2013.59 The
resolution of this issue required the exercise of judicial review, which was beyond the competence of the Civil
Service Commission.60 Since the 15 employees' Petition for declaratory relief alleges that Customs Personnel Order
No. B-189-2013 is unconstitutional and invalid, those allegations should suffice for the Regional Trial Court to
assume jurisdiction.61 According to the 15 employees, Customs Personnel Order No. B-189-2013 is unconstitutional
for violating their right to security of tenure.62 Their detail to the Customs Policy and Research Office amounts to
constructive dismissal63 as they are now "mere researchers[.]"64 The 15 employees argue that all the requisites for
the filing of a Petition for declaratory relief are present.65 They claim that Customs Personnel Order No. B-189-
2013 is a government regulation, affecting their rights, duties, rank, and status. 66 Hence, Customs Personnel Order
No. B-189-2013 is a proper subject of a Petition for declaratory relief. 67 They also argue that Customs Personnel
Order No. B-189-2013 is void, producing no effect.68 According to them, a void or unconstitutional law or issuance
cannot be a source of an obligation so it cannot be breached.69

This case should consider the following issues: First, whether the Regional Trial Court has jurisdiction over private
respondents' Petition for declaratory relief; Second, whether all the requisites for the filing of a Petition for
declaratory relief are present; and Finally, whether Customs Personnel Order No. B-189-2013 is void because of its
indefinite term.

I.

The Constitution confers jurisdiction over the Civil Service Commission for cases involving the civil service. Article
IX(B), Section 1(1) of the Constitution provides:
SECTION 1.(1) The Civil Service shall be administered by the Civil Service Commissioncomposed of a Chairman and
two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at
least thirty-five years of age, with proven capacity for public administration, and must not have been candidates
for any elective position in the elections immediately preceding their appointment. (Emphasis supplied)
As part of the Civil Service Commission's mandate to administer the civil service, Article IX(B), Section 3 of the
Constitution provides:
SECTION 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a
career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and
courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources
development programs for all levels and ranks, and institutionalize a management climate conducive to public
accountability. It shall submit to the President and the Congress an annual report on its personnel programs.
(Emphasis supplied)
The Constitution gives the Civil Service Commission quasi-judicial powers through Article IX(A), Sections 6 and 7,
which provide:
SECTION 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or
before any of its offices. Such rules, however, shall not diminish, increase, or modify substantive rights.

SECTION 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before
it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted
for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the
Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party
within thirty days from receipt of a copy thereof. (Emphasis supplied)
As the "central personnel agency of the Government," 70 Book V, Title I, Subtitle A, Chapter 3, Section 12(11) of
Executive Order No. 292 or the Administrative Code of 1987 provides:
SECTION 12. Powers and Functions. — The [Civil Service] Commission shall have the following powers and
functions: . . . .

(11)

Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested
appointments, and review decisions and actions of its offices and of the agencies attached to it. Officials and
employees who fail to comply with such decisions, orders, or rulings shall be liable for contempt of the
Commission. Its decisions, orders, or rulings shall be final and executory. Such decisions, orders, or rulings may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) days from receipt of a copy
thereof[.] (Emphasis supplied)
Further, for the implementation of Book V, Title I, Subtitle A, Chapter 3, Section 12(11) of Executive Order No.
292,71 Sections 5(B)(3), 6(B)(3), and 7(B)(2) of Civil Service Commission Memorandum Circular No. 19-99 or the
Revised Uniform Rules on Administrative Cases in the Civil Service lay down the different offices of the civil service
where complaints involving personnel actions should be filed. Hence:
SECTION 5. Jurisdiction of the Civil Service Commission Proper.72 — The Civil Service Commission Proper shall have
jurisdiction over the following cases:
. . . . B. Non-Disciplinary
. . . . 3. Protests against the appointment, or other personnel actions, involving third level officials;73 and . . . .
SECTION 6. Jurisdiction of Civil Service Regional Offices. — The Civil Service Commission Regional Offices shall have
jurisdiction over the following cases:
. . . . B. Non-Disciplinary
....

3. 3. Decisions of national agencies and local government units within their geographical boundaries relative
to personnel actions and non-disciplinary cases brought before it on appeal; and

....
SECTION 7. Jurisdiction of Heads of Agencies. — Heads of Departments, agencies, provinces, cities, municipalities
and other instrumentalities shall have original concurrent jurisdiction, with the Commission, 74 over their respective
officers and employees.
. . . . B. Non-Disciplinary 2. Complaints on personnel actions and other non-disciplinary actions of their respective
personnel. (Emphasis supplied)
As the "central personnel agency of the Government" 75 with quasi-judicial powers76 and as the body tasked to
administer the civil service,77 the Civil Service Commission is the "sole arbiter of controversies relating to the civil
service[,]"78 including personnel actions, as this court has ruled.79 The material allegations in the Complaint or
Petition and the character of the relief sought determine which court has jurisdiction. 80 In private respondents' 44
paragraphs in their Petition for declaratory relief filed before the Regional Trial Court, they alleged:
8. On 17 September 2013, without waiting for [Executive Order] No. 140's effectivity on 2 October 2013, the
[Bureau of Customs] issued [Customs Personnel Order] No. B-189-2013, signed by [Bureau of Customs]
Commissioner Rozzano Rufino B. Biazon and approved by [Department of Finance] Secretary, Cesar V. Purisima on
even date. [Customs Personnel Order] No. B-189-2013 states:
Under Section 3 of Executive Order No. 140, series of 2013, the Customs Policy Research Office (the "CPRO") shall
be composed of its organic personnel, augmented and reinforced by personnel from the Department of Finance
and Bureau of Customs as well as those (sic) detailed or seconded from other agencies. Pursuant to the foregoing,
the following personnel are detailed from the Bureau of Customs to [the Customs Policy Research Office] under
the Department of Finance: . . . .
9. Thus, [private respondents'] original and permanent appointments in plantilla positions as Collectors of Customs
VI and V were effectively and constructively revoked even before the effectivity of [Executive Order] No. 140
creating the [Customs Policy Research Office]. They are all "detailed" to the [Customs Policy Research
Office] without any appointment papers providing for their specific functions, status, salary grades, ranks, and
designation. By virtue of the assailed issuance, [private respondents'] were all removed from their respective
permanent positions as Collectors of Customs to form a supposed "research body." 10. The Department of Budget
and Management (DBM), pursuant to [Executive Order] No. 140 has not even approved the composition of the
organic personnel of the [Customs Policy Research Office]. Neither has the [Department of Finance] appeared to.
have made the requisite recommendation for that purpose, as mandated by [Executive Order] No. 140. 11. While
they have not been officially notified thereof, [private respondents] were reliably informed of the issuance of
[Customs Personnel Order] No. B-189-2013 and [petitioners'] attempt to unlawfully "detail" them to the [Customs
Policy Research Office]. . . . . 13. While the [Bureau of Customs] Commissioner's authority to reorganize is
recognized, it is neither absolute nor unbridled. The exercise thereof should not violate the law and the 1987
Constitution. The Constitution clearly mandates that "no officer or employee of the civil service shall be removed
or suspended except for cause provided by law." 14. Section 703 of [Republic Act] No. 1937, as amended, provides
that:
Assignment of Customs Officers and Employees to other duties. - The Commissioner of Customs may, with the
approval of the Secretary of Finance, assign any employee of the Bureau of Customs to any port, service, division
or office within the Bureau or assign him duties as the best interest of the service may require, in accordance with
the staffing pattern or organizational set-up as may be prescribed by the Commissioner of Customs with the
approval of the Secretary of Finance: Provided, that such assignment shall not affect the tenure of office of the
employees nor result in the change of status, demotion in rank and/or deduction of salary.
15. Section 2 of [Republic Act] No. 6656 [or An Act to Protect the Security of Tenure of Civil Service Officers and
Employees in the Implementation of Government Reorganization] further provides that due notice and hearing are
required to remove a public officer or employee pursuant to a bona fide reorganization, viz:
No officer or employee in the career service shall be removed except for a valid cause and after due notice and
hearing. A valid cause for removalexists when, pursuant to a bona fide reorganization, a position has been
abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the
exigencies of the service, or other lawful causes allowed by the Civil Service Law.
16. Thus, while the necessity and indispensability of reorganization when public interest demands may be justified,
civil service employees, much more career service officers with permanent appointments like [private
respondents], cannot be removed, suspended, or demoted from office except for cause provided by law. . . . . 18. In
this case, [Customs Personnel Order] No. B-l89-2013 allegedly "detailed" all 15 [private respondents], together with
12 other Collectors of Customs, to an advisory capacity of a policy coordinating body (CPRO) under the guise of
reorganization, thus effectively rendering vacant the 27 positions of collector of customs throughout the country.
19. Section 8, Rule VII of Civil Service Commission (CSC) Resolution No. 91-1631, otherwise known as the "Omnibus
Civil Service Rules and Regulations," provides that a "detail" is "the movement of an employee from one
department or agency to another which is temporary in nature, which does not involve a reduction in rank, status
or salary and does not require the issuance of another appointment." 20. The patent nullity of [Customs Personnel
Order] No. B-l89- 2013 is readily apparent since Section 703 of [the Tariff and Customs Code] merely authorizes
the [Bureau of Customs] Commissioner to assign or move [Bureau of Customs] personnel only within the Bureau.
Since the [Customs Policy Research Office] is a newly created "office" outside of the [Bureau of Customs], the
[Bureau of Customs] Commissioner's issuance of [Customs Personnel Order] No. B-l89-2013 which "details"
[private respondents] to the [Customs Policy Research Office] is clearly an ultra vires act, and is therefore invalid.
In fact, the [Bureau of Customs] Commissioner's own admission proves this ultra vires and invalid issuance, thus:
"It is more than a reshuffle because [private respondents] have actually been transferred to the [Department of
Finance], out of the Bureau of Customs" Biazon said in an ANC interview, confirming news first reported by the
Philippine Daily Inquirer. "Instead of just reassignment [to] another port, they're basically reassigned to another
office." "After their transfer out of the [Bureau of Customs], the next-in-rank collectors or division heads are taking
over as officers-in-charge of the different ports," he said.
21. There is no bona fide reorganization that took place. [Private respondents'] mass"detail" to the [Customs Policy
Research Office] was without any clear or definite direction as to their career status and functions. As a
consequence, [private respondents] were intentionally and effectively placed on a "floating status." 22.
Furthermore, [Executive Order] No. 140 clearly provides that the [Customs Policy Research Office] shall be
composed of its organic personnel, and that said policy research body - after the organization of its own organic
personnel - shall merely be augmented and reinforced by Department of Finance and Bureau of Customs
personnel. Despite the absence of any organic personnel, much less approval from the Department of Budget and
Management or even a recommendation from the [Department of Finance], [private respondents] have, in speed
haste, already been ordered to be "detailed" by the [Bureau of Customs] to the [Customs Policy Research Office],
and thus, effectively removed from their current respective permanent positions. 23. The landmark case of Dario v.
Mison, et al., where the Supreme Court voided the personnel reorganization within the [Bureau of Customs], is
highly instructive in this case, thus:
Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. . . . .
24. By no stretch of the imagination can the issuance of [Customs Personnel Order] No. B-189-2013 be said to have
been carried out in good faith. The undue haste in issuing [Customs Personnel Order] No. B-189- 2013 clearly
shows that respondents are attempting to beat the deadline on the COMELEC election ban on personnel
movementfrom 28 September 2013 to 28 October 2013 due to the forthcoming Barangay Elections. It cannot be
denied that [Executive Order] No. 140, which was signed by the President on 2 September 2013, has yet to take
effect on 2 October 2013, which is 15 days after its publication in two (2) newspapers of general circulation. On 17
September 2013, however, the [Bureau of Customs] already issued [Customs Personnel Order] No. B-189-2013,
which is based on [Executive Order] No. 140, and attempted to serve copies thereof to [respondents] on 26 to 27
September 2013 supposedly just in time before the COMELEC election ban on personnel movement takes effect on
28 September 2013. 25. More importantly, [Executive Order] No. 140 mandates that the transfer of [Bureau of
Customs] personnel should merely augment or reinforce the organic personnel of the [Customs Policy Research
Office]. Obviously, without any organic personnel, there is still nothing to augment or reinforce. . . . Hence, [private
respondents'] "detail" to the [Customs Policy Research Office] absent any compliance with the requirements under
[Executive Order] No. 140, was surely carried out in bad faith, and was meant to illegally remove [private
respondents] from their respective permanent positions, in blatant violation of the law and the Constitution. 26. It
should also be stressed that [private respondents] were appointed as Collectors of Customs with Position Titles VI
and V, with specific functions, duties, titles, and ranks clearly provided for in their respective appointment papers.
In contrast, their supposed "detail" to the [Customs Policy Research Office] under [Customs Personnel Order] No.
B-189-2013 does not even provide for a definite period of duty, their titles, new functions, or ranks. 27. Moreover,
under CSC Memorandum Circular No. 06-05, otherwise known as the "Guidelines on Designation" it is clear that:
. . . . B. Designees can only be designated to positions within the level they are currently occupying. However,
Division Chiefs may be designated to perform the duties of third level positions First level personnel cannot be
designated to perform the duties of second level positions. . . . .

29. The basis of [private respondents'] reassignment or the exigency necessary to remove them from their
positions is likewise inexistent. Such blanket "detail" relinquishes [private respondents'] permanent positions as
Collectors of Customs without due process and is contrary to their Constitutional right to security of tenure.
Clearly, the disparity between the positions of a Collector of Customs and a mere researcher is blatant. Therefore,
the transfer from the former to the latter unmistakeably denotes demotion.... . . . .
30. In the case of Pastor v. City of Pasig, the Supreme Court held that a reassignment or even detail which is
indefinite and which results in a reduction of rank and status is effectively a constructive dismissal from the
service. . . . . . . .

31. The principles on constructive dismissal clearly find analogous application to [private respondents]. By
definition, constructive dismissal is a quitting because continued employment is rendered impossible,
unreasonable or unlikely; when there is a demotion in rank or a diminution of pay. The test of constructive
dismissal is whether a reasonable person in the employee's position would have felt compelled to give up his
position under the circumstances. 11 is an act amounting to dismissal but is made to appear as if it were not.
Constructive dismissal is therefore a dismissal in disguise. The law recognizes and resolves this situation in favor of
employees in order to protect their rights and interests from the coercive acts of the employer. Thus, the Supreme
Court has ruled that the management prerogative to transfer an employee "cannot be used as a subterfuge by the
employer to rid himself of an undesirable worker."

32. Evidently, [private respondents'] "detail" to the [Customs Policy Research Office] operated as a blanket and
forced relinquishment of their permanent positions as Collectors of Customs in violation of their right to security of
tenure. In view thereof, it behooves upon this Honorable Court to correct such abuse of powers and retain [private
respondents] to their rightful ranks. . . . .

35. ... in accordance with the Supreme Court's ruling in Tañada v. Tuvera, laws and executive issuances shall take
effect after fifteen (15) days following the completion of their publication in the Official Gazette, or in a newspaper
of general circulation.

36. In this case, [Executive Order] No. 140 was published in the 17 September 2013 issue of the broadsheet
newspaper, Manila Bulletin. Thus, following the above legal standards, it is clear that [Executive Order] No. 140 has
yet to take legal effect on 2 October 2013. In other words, the [Bureau of Customs'] issuance of [Customs
Personnel Order] No. B-189-2013 on 17 September 2013 simply, has no legal basis, and is therefore premature and
patently invalid. To deprive [private respondents] of their permanent positions as Collectors of Customs and to
"detail" all 15 of them indefinitely as members of a research body on the basis of an invalid [Bureau of Customs]
and [Department of Finance] order are not only illegal but also unconstitutional for being violative of [private
respondents'] right to security of tenure.

37. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates
no office; it is, in legal contemplation, inoperative, as if it had not been passed. . . . For these reasons, [Customs
Personnel Order] No. B-189-2013 should be nullified and set aside, and its enforcement enjoined.

38. . . . The consequence [of implementing Customs Personnel Order No. B-189-2013] that is also readily obvious is
the chaos entailed in port operations, the collection of much needed Government revenues and public service as
[private respondents] perform functions either as District Collectors of all the 17 Collection Districts in the country,
or as Deputy Collectors for administration, assessment and operation in those different ports. . . . .

41. It cannot be overemphasized that the issuance of [Customs Personnel Order] No. B-189-2013 is illegal, and
blatantly violates existing law and the Constitution. As above mentioned, respondents intend to have [Customs
Personnel Order] No. B-189-2013 immediately effective. Thus, there is a manifest urgency for this Honorable Court
to immediately restrain [petitioners] from implementing [Customs Personnel Order] No. B-189-2013 upon receipt
of this petition and before the matter can be heard on notice. Otherwise, grave injustice and irreparable injury
would be suffered by [private respondents], in that:

(a)
[Executive Order] No. 140, on which [Customs Personnel Order] No. B-189-2013 is based, has yet to take effect
upon publication in two (2) newspapers of general circulation. [Executive Order] No. 140 was published in the 17
September 2013 issue of the Manila Bulletin, hence, it will only take effect on 2 October 2013. [Customs Personnel
Order] No. B-189-2013 cannot be given any effectivity as it is invalid for being blatantly premature and without
legal basis;

(b)

[Customs Personnel Order] No. B-189-2013 violates [Executive Order] No. 140, as the latter mandates that the
[Department of Finance], with the approval of the [Department of Budget and Management], has to recommend
the composition of the organic personnel of the [Customs Policy Research Office]. No such recommendation by the
[Department of Finance], much less the approval of the [Department of Budget and Management], has been
made. In fact, [Executive Order] No. 140 provides that the transfer of [Bureau of Customs] personnel should
merely augment or reinforce the organic personnel of the [Customs Policy Research Office]. Obviously, without
any organic personnel, there is still nothing to augment or reinforce. The [Customs Policy Research Office] is thus
in limbo, as there is yet no organic personnel in place;

(c)

[Customs Personnel Order] No. B-189-2013 is also contrary to Section 703 of [Republic Act] No. 1937, as amended,
which provides that "(t)he Commissioner of Customs may, with the approval of the Secretary of Finance, assign
any employee of the Bureau of Customs to any port, service, division or office within the Bureau or assign him
duties as the best interest of the service may require." Even Commissioner Biazon, in an interview with [the ABS-
CBN News Channel] admitted that "it is more than a reshuffle because they have actually been transferred to the
[Department of Finance], out of the Bureau of Customs." The Commissioner of Customs thus committed an illegal
and ultra vires act in "detailing" [private respondents] to the [Customs Policy Research Office], an office admittedly
outside the [Bureau of Customs]; and

(d)

[private respondents'] "detail" to the [Customs Policy Research Office] is [petitioners'] scheme to constructively
dismiss and demote [private respondents]. [Customs Personnel Order] No. B- 189-2013 operates as a blanket and
forced relinquishment of [private respondents'] permanent positions as Collectors of Customs in violation of their
constitutional right to security of tenure. [Private respondents] are all "detailed" to the [Customs Policy Research
Office] without any appointment papers providing for their specific functions, status, salary grades, ranks, and
designation, thereby intentionally and effectively placing them on "floating status."

(e)

[Private respondents] would be unduly displaced from their permanent positions with the appointment and/or
designation by the [Bureau of Customs] of new Collectors of Customs. 81 (Emphasis supplied, citations omitted)
An examination of the text of the Petition for declaratory relief readily shows that private respondents originally
questioned a personnel action. They essentially questioned their detail to the Customs Policy and Research Office.
Book V, Title I, Subtitle A, Chapter 5, Section 26 of Executive Order No. 292 defines a personnel action:
SECTION 26. Personnel Actions. — . . . As used in this Title, any action denoting the movement or progress of
personnel in the civil service shall be known as personnel action. Such action shall include appointment through
certification, promotion, transfer, reinstatement, re-employment, detail, reassignment, demotion, and separation.
(Emphasis supplied)
The assailed Customs Personnel Order No. B-189-2013 is a personnel action because it details 27 employees from
the Bureau of Customs to the Customs Policy Research Office. It is a movement of personnel in the civil service.
Cases involving personnel actions are within the exclusive jurisdiction of the Civil Service Commission and not
within the trial courts' jurisdiction.82 The issue is not novel. In Olanda v. Bugayong,83 respondent Leonardo G.
Bugayong (Bugayong), as President of the Philippine Merchant Marine Academy, relieved petitioner Menelieto A.
Olanda (Olanda) from his post as the Dean of the College of Marine Engineering of the Philippine Merchant Marine
Academy84 and imposed a three (3)-month suspension85 on the latter for allegedly "misusing classified
information."86 Olanda filed before the Regional Trial Court of Iba, Zambales a Petition for "quo warranto,
mandamus, and prohibition with prayer for the issuance of a writ of preliminary injunction and damages, claiming
that there was no valid cause to deprive him of his position[.]"87 This court ruled that the trial court had no
jurisdiction.88Hence:
Disciplinary cases and cases involving "personnel actions" affecting employees in the civil service including
"appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment,
demotion and separation" are within the exclusivejurisdiction of the Civil Service Commission which is the sole
arbiter of controversies relating to the civil service. . . . . It was thus error for the trial court, which does not have
jurisdiction, to, in the first, [sic] place take cognizance of the petition of petitioner assailing his relief as Dean and
his designation to another position. This leaves it unnecessary to dwell on the issues herein raised by petitioner.
WHEREFORE, the petition is, upon the ground of lack of jurisdiction of the trial court, hereby DENIED. SO
ORDERED.89 (Emphasis supplied, citation omitted)
In Casimina v. Judge Legaspi,90 petitioner Pablo B. Casimina (Casimina), General Manager of the Philippine
Fisheries Development Authority, issued Special Order No. 82, which reassigned private respondent Emmanuel T.
Illera (Illera), Port Manager of the Iloilo Fishing Port Complex, from Iloilo to the central office in Quezon
City.91 After the denial of his request for reconsideration,92 Illera filed for injunction with a prayer for temporary
restraining order and a writ of preliminary injunction against Casimina before the Regional Trial Court of Iloilo "to
restrain [Casimina] from transferring him to the central office in Quezon City." 93 Casimina filed an Omnibus Motion
to dismiss the Complaint on the ground of, among others, lack of jurisdiction. 94 This court ruled that the trial court
has no jurisdiction over the Petition.95 "[Tjhis case falls within the jurisdiction of the Civil Service Commission (CSC)
because it involves the movement of government personnel to promote order and efficiency in public
service."96 In Mantala v. Salvador,97 Dr. Julia P. Regino (Regino) filed a formal protest before the Committee on
Evaluation and Protest of the Department of Health questioning the appointment of Dr. Mariquita J. Mantala (Dr.
Mantala).98 The Committee on Evaluation and Protest upheld Dr. Mantala's appointment. 99 Upon appeal and
reconsideration, the Civil Service Commission also upheld Dr. Mantala's appointment. 100 The Resolution of the Civil
Service Commission became final and executory.101 Regino then filed an action for quo warranto and mandamus
before the Regional Trial Court in Quezon City.102The trial court annulled and set aside Dr. Mantala's appointment
and directed the Secretary of Health to withdraw Dr. Mantala's appointment and to issue another for
Regino.103 Dr. Mantala then filed a Petition for Review on certiorari before this court. 104 This court granted the
Petition and annulled the Decision of the trial court:105
Disciplinary cases, and cases involving "personnel actions" affecting employees in the civil service—including
"appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment,
demotion and separation," and, of course, employment status and qualification standards—are within the exclusive
jurisdiction of the Civil Service Commission. The Constitution declares the Commission to be "the central personnel
agency of the Government," having power and authority to administer the civil service; to promulgate its own
rules concerning pleadings and practice before it or. before any of its offices; and to render decision in "any case or
matter brought before it within sixty days from the date of its submission for decision or resolution," which
decision, or order or ruling "may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof." . . . . It was thus error, because beyond its competence, for the
respondent Trial Court to take cognizance of the quo warranto and mandamus action instituted by Dr. Regino
which was in essence a protest against the appointment of Dr. Mantala. 106 (Emphasis supplied, citations omitted)
In all these cases, this court upheld the jurisdiction of the Civil Service Commission over complaints involving the
movement of personnel in the civil service.

II.

The doctrine of primary administrative jurisdiction precludes trial courts from resolving a controversy involving a
question that is within the a exclusive jurisdiction of an administrative tribunal. 107 The doctrine disallows courts "to
arrogate unto itself the authority to resolve a controversy the jurisdiction over which is initially lodged with an
administrative body of special competence."108 In Pambujan Sur United Mine Workers v. Samar Mining Company,
Inc.,109 the plaintiff Pambujan Sur United Mine Workers filed a Complaint before the Court of First Instance (now
Regional Trial Court) against the Samar Mining Company, Inc. (Samar Mining) alleging breach of their closed-shop
agreement.110 Samar Mining filed a Motion to Dismiss arguing that the regular courts had no jurisdiction over the
subject matter of the Complaint.111 Samar Mining argued that the Court of Industrial Relations (now National Labor
Relations Commission) had jurisdiction over cases involving conditions of employment. 112 The Court of First
Instance granted the Motion to Dismiss.113 Upon appeal, this court applied the "exclusion theory,"114i.e., "where
jurisdiction is conferred in express terms upon one court, and not upon another [and where] it has been held that
it is the intention that the jurisdiction conferred shall be exclusive" 115 and upheld the exclusive jurisdiction of the
Court of Industrial Relations (now National Labor Relations Commission). 116 Hence:
But judicial wisdom in this particular matter would seem to favor adherence to the exclusion theory, what with the
litigant's ordinary duty to exhaust administrative remedies and the "doctrine of primary administrative
jurisdiction," sense-making and expedient,
"That the courts cannot or will not determine a controversy involving a question which is within the jurisdiction of
an administrative tribunal prior to the decision of that question by the administrative tribunal, where the question
demands the exercise of sound administrative discretion requiring the special knowledge, experience, and services
of the administrative tribunal to determine technical and intricate matters of fact, and a uniformity of ruling is
essential to comply with the purposes of the regulatory statute administered." (42 Am. Jut., 698.) 117
This court also made a similar ruling in Javier v. Court of Appeals.118 In Javier, Normito Javier (Normito) was
"employed by private respondent Jebsens Maritime, Inc. as a boatswain[.]" 119 Normito, however, died at
sea.120 Upon learning of her husband's death, Lolita Javier (Lolita) went to the office of Jebsens Maritime, Inc. and
the latter "promised to give the corresponding death benefits[.]" 121 After Jebsens Maritime, Inc. had failed to pay
the promised death benefits, Lolita filed a Complaint before the Regional Trial Court of Makati for a sum of money
for herself and on behalf of her six (6) minor children against Jebsens Maritime, Inc. and its shipmaster. 122 This
court ruled that under Section 3(d)123 of Executive Order No. 247 or the Reorganization Act of the Philippine
Overseas Employment Administration, it was the Philippine Overseas Employment Administration that had original
and exclusive jurisdiction over Lolita's Complaint and that the trial court had no jurisdiction over the subject matter
of her Complaint.124Hence, under the doctrine of primary administrative jurisdiction, the trial court cannot resolve
the controversy.125cralawred This court ordered the Regional Trial Court to dismiss the case for lack of
jurisdiction.126 In Catipon, Jr. v. Japson,127 respondent Jerome Japson (Japson), "a former Senior Member Services
Representative of [the] [Social Security System,] Bangued, filed a letter-complaint [before] the Civil Service
Commission-[Cordillera Administrative Region] Regional Director[.]" 128 He alleged that petitioner Macario U.
Catipon, Jr. (Catipon) made deliberate false entries in his application to take the Civil Service Professional
Examination.129 The Civil Service Commission-Cordillera Administrative Region Regional Director found Catipon
guilty of conduct prejudicial to the best interest of the service. 130 Catipon appealed to the Court of Appeals, which
dismissed the appeal.131 The Court of Appeals held that instead of filing the appeal before the Court of Appeals,
Catipon should have appealed to the Civil Service Commission, based on Sections 5(A)(1), 132 43,133 and 49134 of the
Civil Service Commission Uniform Rules on Administrative Cases. 135 This court affirmed the Decision of the Court of
Appeals136 and held:
The [Court of Appeals] is further justified in refusing to take cognizance of the petition for review, as "[t]he
doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a
controversy the jurisdiction over which is initially lodged with an administrative body of special competence." When
petitioner's recourse lies in an appeal to the Commission Proper in accordance with the procedure prescribed in
[Revised Uniform Rules on Administrative Cases in the Civil Service], the [Court of Appeals] may not be faulted for
refusing to acknowledge petitioner before it. 137 (Emphasis supplied)
Hence, considering the exclusive jurisdiction of the Civil Service Commission to hear and decide administrative
cases, including those involving personnel actions, as granted by the Constitution, the Regional Trial Court cannot
assume jurisdiction based on the doctrine of primary administrative jurisdiction. In sustaining the trial court's
assumption of jurisdiction over the Petition for declaratory relief, the ponencia held that the case falls under an
exception to the doctrine of exhaustion of administrative remedies. 138 The ponencia states:
In this case, respondents allege that [Customs Personnel Order No. B-189-2013] is contrary to law and
unconstitutional. Respondents assail [Customs Personnel Order No. B-189-2013] as patently illegal, arbitrary, and
oppressive. This case clearly falls within the exceptions where exhaustion of administrative remedies need not be
resorted to by respondents.139
Private respondents, citing Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng
Muntinlupa, Inc. (KBMBPM) v. Dominguez,140 likewise argue that exceptions to the doctrine of exhaustion of
administrative remedies apply.141 Hence:
Moreover, the doctrine of exhaustion of administrative remedies also yields to other exceptions, such as when the
question involved is purely legal, as in the instant case, or where the questioned act is patently illegal, arbitrary or
oppressive.142
The doctrine of exhaustion of administrative remedies does not apply and, consequently, its exceptions. The
doctrine of primary administrative jurisdiction is different from the doctrine of exhaustion of administrative
remedies. Under the doctrine of primary administrative jurisdiction, when an administrative agency is granted
primary jurisdiction over the subject matter, the courts "cannot or will not determine a controversy involving a
question which is within the jurisdiction of an administrative tribunal prior to the decision of that question by the
administrative tribunal[.]"143 The doctrine of primary administrative jurisdiction presupposes that the
administrative agency has jurisdiction over the subject matter while the court does not. The Complaint or Petition,
therefore, cannot be filed before the court. As the issue is jurisdictional, there should be no exception to the
doctrine of primary administrative jurisdiction. When the complaint or petition is filed before a court with no
subject matter jurisdiction, the court has no other option but to dismiss the case.144 On the other hand, under the
doctrine of exhaustion of administrative remedies, before a party may seek intervention from the court, he or she
should have already exhausted all the remedies in the administrative level.145 If there is still a remedy available
within the administrative machinery, "then such remedy should be exhausted first before [the] court's judicial
power can be sought."146 The doctrine of exhaustion of administrative remedies presupposes that both the courts
and the administrative agency have concurrent jurisdiction. This is because non-observance of the doctrine of
exhaustion of administrative remedies does not affect the court's jurisdiction. 147 In Soto v. Jareno,148 this court
ruled:
Failure to observe the doctrine of exhaustion of administrative remedies does not affect the jurisdiction of the
court. We have repeatedly stressed this in a long line of decisions. The only effect of non-compliance with this rule
is that it will deprive the complainant of a cause of action, which is a ground for a motion to dismiss. If not invoked
at the proper time, this ground is deemed waived and the court can then take cognizance of the case and try
it.149 (Emphasis supplied)
Hence, the doctrine of exhaustion of administrative remedies presupposes that the court has jurisdiction over the
subject matter of the complaint or petition. Otherwise, it can never have the power to take cognizance of the case
as contemplated by Soto. While both the court and the administrative agency have jurisdiction over the subject
matter, the general rule is that the courts, because of comity, practicality, and convenience, will not interfere with
the administrative process until the process comes to an end.150 This is because availing administrative remedies
entails lesser expenses and results in a speedier resolution of controversies. 151 On the other hand, since the court
and the administrative agency have concurrent jurisdiction, exceptions may be warranted by the
circumstances,152 and the court may choose to assume jurisdiction over the controversy. Hence, when jurisdiction
is exclusively granted to an administrative agency, the doctrine of exhaustion of administrative remedies does not
apply. Here, considering that the Civil Service Commission is granted exclusive jurisdiction over cases involving
personnel actions, the doctrine of primary administrative jurisdiction, not the doctrine of exhaustion of
administrative remedies, applies. The exceptions to the doctrine of exhaustion of administrative remedies likewise
do not apply because the Regional Trial Court has no jurisdiction to resolve the dispute in the first place. In order
for the exceptions to apply, the court to which the petition was prematurely filed should have jurisdiction;
otherwise, the orders of the court would be null and void for lack of jurisdiction. Decisions or orders rendered by
tribunals and agencies that do not have subject matter jurisdiction are null and void. 153 Hence, the exceptions to
the doctrine of exhaustion of administrative remedies should not be applicable since the Regional Trial Court, the
court to which the Petition for declaratory relief was filed, lacks subject matter jurisdiction, and any order or
decision rendered by it would be null and void.Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong
Pamilihang Bayan ng Muntinlupa, Inc. (KBMBPM) cited by private respondents finds no application here.
In KBMBPM, petitioners questioned the takeover by the Department of Agriculture of the management of
petitioner KBMBPM, a service cooperative organized by and composed of vendors of the New Muntinlupa Public
Market.154 There is no personnel action involved in KBMBPM. Hence, private respondents' reliance on the case is
misplaced. The ponencia held that "[w]hen respondents raised the issue of validity and constitutionality of
[Customs Personnel Order No. B-189-2013], the issue took the case beyond the scope of the [Civil Service
Commission's] jurisdiction because the matter is no longer limited to personnel action. Thus, the [Regional Trial
Court] did not abuse its discretion in taking cognizance of the action." 155 The constitutional issues alleged in the
Petition for declaratory relief do not suffice for the Regional Trial Court to assume jurisdiction. The Civil Service
Commission cannot be ousted from its jurisdiction "by the simple expediency of appending an allegedly
constitutional or legal dimension to an issue"156 that clearly involves a personnel action.157 In Corsiga v. Judge
Defensor,158 petitioner Eduardo Corsiga (Corsiga), "then Regional Irrigation Manager of the [National Irrigation
Administration], Region VI, issued Regional Office Memorandum (ROM) No. 52, reassigning private respondent
[Romeo Ortizo (Ortizo)] to [the] Aganan-Sta. Barbara River Irrigation System[.]"159 Ortizo filed before the "Regional
Trial Court of Iloilo City a complaint for prohibition and injunction, with prayer for issuance of [a] Temporary
Restraining Order and/or Writ of Preliminary Injunction."160 He argued that the transfer or assignment without his
consent is a violation of his constitutional right to security of tenure.161 Corsiga moved to dismiss the Petition for
lack of jurisdiction.162 This court ruled that the Regional Trial Court had no jurisdiction over Ortizo's
Complaint.163 Hence:
It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure in Rule XII, Section 6
of the same rules, that decisions of lower level officials be appealed to the agency head, then to the Civil Service
Commission. Decisions of the Civil Service Commission, in turn, may be elevated to the Court of Appeals. Under
this set up, the trial court does not have jurisdiction over personnel actions and, thus, committed an error in
taking jurisdiction over Civil Case No. 22462. The trial court should have dismissed the case on motion of petitioner
and let private respondent question RMO[sic] No. 52 before the NIA Administrator, and then the Civil Service
Commission. As held in Mantala vs. Salvador, cases involving personnel actions, reassignment included, affecting
civil service employees, are within the exclusive jurisdiction of the Civil Service Commission.164 (Emphasis supplied,
citations omitted)
Despite allegations of Regional Office Memorandum No. 52's constitutional infirmities, this court still upheld the
exclusive jurisdiction of the Civil Service Commission over cases involving personnel actions. In Department of
Agrarian Reform v. Trinidad Valley Realty & Development Corporation, 165 Trinidad Valley Realty & Development
Corporation and the other respondents (Trinidad Valley Realty & Development Corporation, et al.) are registered
owners of a parcel of land in Negros Oriental.166 The Department of Agrarian Reform placed a substantial portion
of the land under the coverage of the Comprehensive Agrarian Reform Law of 1988 or Republic Act No.
6657.167 Administrative Order No. 10, Series of 1989, Administrative Orders No. 12, Series of 1989, No. 9, Series of
1990, and No. 2, Series of 1996, Administrative Order No. 10, Series of 1990, Joint DAR-LRA Memorandum Circular
No. 20, Series of 1997, and Executive Order No. 405, among others, (collectively, Orders) were then
issued.168 Private respondents Trinidad Valley Realty & Development Corporation, et al. filed before the Regional
Trial Court a Petition for declaration of unconstitutionality through certiorari, prohibition and mandamus against
the Land Registration Authority, the Department of Agrarian Reform, and the beneficiaries under the
Comprehensive Agrarian Reform Program questioning the Orders. 169 This was later amended to an ordinary action
of annulment of land titles.170 In its Answer, the Department of Agrarian Reform asserted that "jurisdiction over all
agrarian reform matters is exclusively vested in the [Department of Agrarian Reform,]"171 not in the regular courts.
This court ruled that the Regional Trial Court had no jurisdiction. 172
The Court likewise ruled in the similar case of [Department of Agrarian Reform] v. Cuencathat "[a]ll controversies
on the implementation of the Comprehensive Agrarian Reform Program (CARP) fall under the jurisdiction of the
Department of Agrarian Reform (DAR), even though they raise questions that are also legal or constitutional in
nature." In said case, it was noted that the main thrust of the allegations in the Complaint was the propriety of the
Notice of Coverage and "not x x x the 'pure question of law' spawned by the alleged unconstitutionality of EO 405
— but x x x the annulment of the DAR's Notice of Coverage." The Court thus held that:
To be sure, the issuance of the Notice of Coverage constitutes the first necessary step towards the acquisition of
private land under the CARP. Plainly then, the propriety of the Notice relates to the implementation of the CARP,
which is under the quasi-judicial jurisdiction of the DAR. Thus, the DAR could not be ousted from its authority by
the simple expediency of appending an allegedly constitutional or legal dimension to an issue that is clearly
agrarian.
The legal recourse undertaken by Trinidad Valley Realty and Development Corporation, et al. is on all-fours with
the remedy adopted by the private respondents in Cuenca. In this case, Trinidad Valley Realty and Development
Corporation, et al. cloaked the issue as a constitutional question — assailing the constitutionality of administrative
issuances promulgated to implement the agrarian reform law — in order to annul the titles issued therein.
In Cuenca, private respondents assailed the constitutionality of EO 45 in order to annul the Notice of Coverage
issued therein. The only difference is that in Cuenca, private respondents directly filed with the RTC their complaint
to obtain the aforesaid reliefs while in this case, Trinidad Valley Realty and Development Corporation, et al. filed
their original petition for certiorari with the RTC after the protest of Trinidad Valley Realty and Development
Corporation against the coverage of its landholding under CARP was dismissed by the DAR Regional Director and
such dismissal was affirmed by DAR OIC Secretary Jose Mari B. Ponce. But in both cases, it is evident that the
constitutional angle was an attempt to exclude the cases from the ambit of the jurisdictional prescriptions under
RA 6657.173 (Emphasis supplied, citations omitted)
Invocations of issues of validity and constitutionality of Customs Personnel Order No. B-189-2013 will not suffice
for the courts to assume jurisdiction, if the order sought to be declared invalid is a personnel action. Since the
questioned order is a personnel action, the exclusive jurisdiction of the Civil Service Commission as the sole arbiter
of controversies relating to the civil service must be upheld. In any case, detail of government personnel to other
offices does not involve and violate the employees' security of tenure in the absence of any grave abuse of
discretion or improper motive or purpose.174 Hence, the Regional Trial Court has no jurisdiction over private
respondents' Petition for declaratory relief.

IV.

Private respondents rely on Commissioner of Customs, et al. v. Hypermix Feeds Corporation.175 They argue that
based on Hypermix, "[t]he determination of whether a specific rule or set of rules issued by an administrative
agency contravenes the law or the [Constitution is within the jurisdiction of the regular courts."176 They add that
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."177 In Hypermix, Hypermix Feeds Corporation filed a Petition for declaratory relief before the
Regional Trial Court, with the Petition challenging the validity and constitutionality of Customs Memorandum
Order (CMO) 27-2003.178 CMO 27-2003 classified wheat according to (1) importer or consignee; (2) country of
origin; and (3) port of discharge, and imposed different tariff rates depending on such classification. 179 This court
concluded that "a petition for declaratory relief is the right remedy given the circumstances of the
case."180Hypermix cannot be applied because the circumstances in that case differ from the circumstances here
as Hypermix does not involve a personnel action.

V.

A petition for declaratory relief may prosper only if there is no breach or violation yet of the assailed government
regulation, and adequate relief is not available through other means or other forms of action or proceeding. Rule
63, Section 1 of the Rules of Court provides:
SECTION 1. Who may file petition. - Any person interested under a deed, will, contract or other written instrument,
or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental
regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to
determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder.
(Emphasis supplied)
In Republic v. Roque,181 this court enumerated the requisites for a petition for declaratory relief to prosper:
Case law states that the following are the requisites for an action for declaratory relief:

first, the subject matter of the controversy must be a deed, will, contract or other written instrument, statute,
executive order or regulation, or ordinance;

second, the terms of said documents and the validity thereof are doubtful and require judicial construction;

third, there must have been no breach of the documents in question;

fourth, there must be an actual justiciable controversy or the "ripening seeds" of one between persons whose
interests are adverse;

fifth, the issue must be ripe for judicial determination; and

sixth, adequate relief is not available through other means or other forms of action or proceeding.182 (Emphasis in
the original, citation omitted)

The third and sixth requisites are absent. The Complaint before the lower court did not simply ask for a declaration
of a hypothetical breach. Adequate relief through the Civil Service Commission was also available. Executive Order
No. 140 was published on September 17, 2013. According to Section 9, Executive Order No. 140 shall take effect
immediately. On September 17, 2013, Bureau of Customs Commissioner Rozzano Rufmo B. Biazon issued Customs
Personnel Order No. B-189-2013. On September 30, 2013, private respondents filed their Petition for declaratory
relief. There was no denial by private respondents that they did not report for work upon Custom Personnel Order
No B-189-2013's effectivity.183 Private respondents Arnel C. Alcaraz, Ma. Lourdes V. Mangaoang, Romalino G.
Valdez, Lilibeth S. Sandag, Ma. Liza S. Torres, and Raymond P. Ventura only reported for work after the trial court's
denial of their application for a writ of preliminary injunction.184 By not reporting for work upon the issuance of
Customs Personnel Order No. B-189-2013 on September 17, 2015, private respondents committed a breach of the
Order. Since they committed the breach prior to the filing of their Petition for declaratory relief, the petition is no
longer available. In Martelino, et al. v. National Home Mortgage Finance Corporation, et al.,185 petitioners
(Martelino, et al.) obtained housing loans from respondents National Home Mortgage Finance Corporation and
Home Development Mutual Fund.186 National Home Mortgage Finance Corporation and Home Development
Mutual Fund directly released the proceeds of the housing loans to the subdivision developer, Shelter Philippines,
Inc. (Shelter).187 Shelter did not complete the subdivision pursuant to its subdivision plan.188 Martelino, et al. then
filed a Petition for declaratory relief to determine whether they can suspend payment to National Home Mortgage
Finance Corporation and Home Development Mutual Fund because of Shelter's failure to complete the subdivision
and whether interests and penalties should also be suspended. 189 This court found that at the time of the filing of
their Petition for declaratory relief, Martelino, et al. already suspended payment of their amortizations to National
Home Mortgage Finance Corporation and Home Development Mutual Fund. 190Hence, this court concluded that
the Regional Trial Court cannot assume jurisdiction over the Petition for declaratory relief. 191 Hence:
Indeed, under Section 1, Rule 63, a person must file a petition for declaratory relief before breach or violation of a
deed, will, contract, other written instrument, statute, executive order, regulation, ordinance or any other
governmental regulation. In this case, the petitioners had stated in their petition that respondents assessed them
interest and penalties on their outstanding loans, initiated foreclosure proceedings against petitioner Rafael
Martelino as evidenced by the notice of extra-judicial sale and threatened to foreclose the mortgages of the other
petitioners, all in disregard of their right to suspend payment to Shelter for its failure to complete the
subdivision. Said statements clearly mean one thing: petitioners had already suspended paying their amortization
payments. Unfortunately, their actual suspension of payments defeated the purpose of the action to secure an
authoritative declaration of their supposed right to suspend payment, for their guidance. Thus, the RTC could no
longer assume jurisdiction over the action for declaratory relief because its subject initially unspecified, now
identified as P.D. No. 957 and relied upon — correctly or otherwise — by petitioners, and assumed by the RTC to
be Rep. Act No. 8501, was breached before filing the action. As we said in Tambunting, Jr. v. Sumabat:
. . . The purpose of the action [for declaratory relief] is to secure an authoritative statement of the rights and
obligations of the parties under a statute, deed, contract, etc. for their guidance in its enforcement or compliance
and not to settle issues arising from its alleged breach. It may be entertained only before the breach or violation of
the statute, deed, contract, etc. to which it refers. Where the law or contract has already been contravened prior to
the filing of an action for declaratory relief, the court can no longer assume jurisdiction over the action.... Under
such circumstances, inasmuch as a cause of action has already accrued in favor of one or the other party, there is
nothing more for the court to explain or clarify short of a judgment or final order.192 (Emphasis supplied, citations
omitted)
In Aquino v. Municipality of Malay, Aklan,193 petitioner Crisostomo B. Aquino (Aquino) is "the president and chief
executive officer of Boracay Island West Cove Management Philippines, Inc. (Boracay West Cove)."194 The Office of
the Mayor of Malay, Aklan issued Executive Order No. 10, Series of 2011, ordering the closure and demolition of a
hotel owned by Boracay West Cove. 195 On June 10, 2011, Executive Order No. 10 was implemented partially.196 To
stop the implementation of Executive Order No. 10, Aquino filed a Petition for certiorari with prayer for injunctive
relief before the Court of Appeals. 197The Court of Appeals dismissed the Petition on the ground that the correct
remedy was for Aquino "to file a petition for declaratory relief with the Regional Trial Court." 198 This court
disagreed with the Court of Appeals and stated:
An action for declaratory relief presupposes that there has been no actual breach of the instruments involved or of
the rights arising thereunder. Since the purpose of an action for declaratory relief is to secure an authoritative
statement of the rights and obligations of the parties under a statute, deed, or contract for their guidance in the
enforcement thereof, or compliance therewith, and not to settle issues arising from an alleged breach thereof, it
may be entertained before the breach or violation of the statute, deed or contract to which it refers. A petition for
declaratory relief gives a practical remedy for ending controversies that have not reached the state where another
relief is immediately available; and supplies the need for a form of action that will set controversies at rest before
they lead to a repudiation of obligations, an invasion of rights, and a commission of wrongs. In the case at bar, the
petition for declaratory relief became unavailable by [Executive Order No. 10's] enforcement and implementation.
The closure and demolition of the hotel rendered futile any possible guidelines that may be issued by the trial
court for carrying out the directives in the challenged [Executive Order No. 10]. Indubitably, the C A erred when it
ruled that declaratory relief is the proper remedy given such a situation. 199(Emphasis supplied, citation omitted)
In City of Lapu-Lapu v. Philippine Economic Zone Authority,200 the City of Lapu-Lapu and the Province of Bataan
demanded from the Philippine Economic Zone Authority payment of real property taxes. 201 The Philippine
Economic Zone Authority filed a Petition for declaratory relief before the Regional Trial Court, "praying that the
trial court declare it exempt from payment of real property taxes." 202 This court ruled that the Regional Trial Court
had no jurisdiction to decide Philippine Economic Zone Authority's Petition for declaratory relief. 203 This court
explained:
We rule that the [Philippine Economic Zone Authority] erred in availing itself of a petition for declaratory relief
against the City. The City had already issued demand letters and real property tax assessment against the
[Philippine Economic Zone Authority], in violation of the [Philippine Economic Zone Authority's] alleged tax-exempt
status under its charter.The Special Economic Zone Act of 1995, the subject matter of [Philippine Economic Zone
Authority's] petition for declaratory relief, had already been breached. The trial court, therefore, had no
jurisdiction over the petition for declaratory relief. There are several aspects of jurisdiction. Jurisdiction over the
subject matter is "the power to hear and determine cases of the general class to which the proceedings in question
belong." It is conferred by law, which may either be the Constitution or a statute. Jurisdiction over the subject
matter means "the nature of the cause of action and the relief sought." Thus, the cause of action and character of
the relief sought as alleged in the complaint are examined to determine whether a court had jurisdiction over the
subject matter. Any decision rendered by a court without jurisdiction over the subject matter of the action is
void.204(Emphasis supplied, citations omitted)
Further, Tambunting, Jr. v. Spouses Sumabat205 declared that when a court assumed jurisdiction over a Petition for
declaratory relief when there was already a breach of the subject instrument or government regulation, the orders
made by that court would be null and void for want of jurisdiction. 206 Hence:
In other words, a court has no more jurisdiction over an action for declaratory relief if its subject, i.e., the statute,
deed, contract, etc., has already been infringed or transgressed before the institution of the action. Under such
circumstances, inasmuch as a cause of action has already accrued in favor of one or the other party, there is
nothing more for the court to explain or clarify short of a judgment or final order. Here, an infraction of the
mortgage terms had already taken place before the filing of Civil Case No. C-7496. Thus, the CFI lacked jurisdiction
when it took cognizance of the case in 1979. And in the absence of jurisdiction, its decision was void and without
legal effect. As this Court held in Arevalo v. Benedicto:
Furthermore, the want of jurisdiction by a court over the subject-matter renders its judgment void and a mere
nullity, and considering that a void judgment is in legal effect no judgment, by which no rights are divested, from
which no rights can be obtained, which neither binds nor bars any one, and under which all acts performed and all
claims flowing out of are void, and considering further, that the decision, for want of jurisdiction of the court, is not
a decision in contemplation of law, and, hence, can never become executory, it follows that such a void judgment
cannot constitute a bar to another case by reason of res judicata.207 (Emphasis supplied, citations omitted)
This was reiterated in Malana, et al. v. Tappa, et al.208 where this court declared:
Where the law or contract has already been contravened prior to the filing of an action for declaratory relief, the
courts can no longer assume jurisdiction over the action. In other words, a court has no more jurisdiction over an
action for declaratory relief if its subject has already been infringed or transgressed before the institution of the
action.209
Private respondents argue that Customs Personnel Order No. B-189-2013 is void, producing no effect. Hence,
"there is actually no breach, real or imaginary, to speak of in this case." 210 Subscribing to petitioners' theory will
render ineffective the phrase "before breach or violation thereof found in Section 1 of Rule 63 of the Rules of
Court when a petitioner questions the validity of a written instrument or governmental regulation. By arguing that
the instrument or regulation questioned is void at the onset, a petitioner may file any time a petition for
declaratory relief with no regard to whether he or she violated the "void" instrument or regulation. Private
respondents' belated compliance with Customs Personnel Order No. B-189-2013 cannot cure the defect of want of
jurisdiction. In Gomez v. Palomar, etc., et al.,211 this court declared:
The prime specification of an action for declaratory relief is that it must be brought "before breach or violation" of
the statute has been committed. Rule 64, section 1 so provides. Section 6 of the same rule, which allows the court
to treat an action for declaratory relief as an ordinary action, applies only if the breach or violation occurs after the
filing of the action but before the termination thereof. Hence, if, as the trial court itself admitted, there had been a
breach of the statute before the filing of this action, then indeed the remedy of declaratory relief cannot be availed
of much less can the suit be converted into an ordinary action.212 (Emphasis supplied, citation omitted)
Considering that there was already a breach of Customs Personnel Order No. B-189-2013 when private
respondents filed their Petition for declaratory relief, the Regional Trial Court can no longer act on the Petition for
want of jurisdiction. For a Petition for declaratory relief to prosper, there should be no other adequate relief
available to petitioners.213 "If adequate relief is available through another form of action or proceeding, the other
action must be preferred over an action for declaratory relief." 214 In Ferrer, Jr., et al. v. Mayor Roco, Jr., et
al.,215 this court affirmed the dismissal of a Petition for declaratory relief where the doctrine of primary
administrative jurisdiction applied because it meant that there was another adequate remedy available to
petitioners.216 Here, private respondents' correct remedy was to file a Complaint or Petition before the Civil Service
Commission to assail their detail to the Customs Policy Research Office. Since they have another adequate remedy
available to them, their Petition for declaratory relief must fail. All told, a Petition for declaratory relief was not an
available remedy for private respondents. It was, therefore, error for the Regional Trial Court to assume
jurisdiction over private respondents' Petition for declaratory relief. The Orders of the Regional Trial Court dated
October 1, 2013, October 4, 2013, and October 21, 2013 are declared void for want of jurisdiction. All other Orders
of the Regional Trial Court pursuant to private respondents' Petition for declaratory relief are also void for lack of
jurisdiction. The Regional Trial Court should be directed to dismiss private respondents' Petition for declaratory
relief.

VI.

Customs Personnel Order No. B-189-2013 provides that it "shall be effective immediately and valid until sooner
revoked."217 Civil Service Commission Resolution No. 021181 entitled Policies on Detail and dated September 13,
2002 "govern[s] the detail of employees in all agencies of the government." 218 Section 2 of Policies on Detail
provides:
Section 2. Duration of the Detail - the detail shall be allowed only for a maximum period of one year. Details
beyond one year may be allowed provided it is with the consent of the detailed employee. The extension or
renewal of the period of the detail shall be within the authority of the mother agency. If the employee believes
that there is no justification for the detail, he/she may appeal his/her case to the proper Civil Service Commission
Regional Office. Pending appeal, the detail shall be executory unless otherwise ordered by said regional office.
Decision of said regional office may be further appealed to the Commission en banc.219 (Emphasis supplied)
Customs Personnel Order No. B-189-2013 's provision stating that "[t]his Order shall be effective immediately and
valid until sooner revoked" appears contrary to Section 2 of Resolution No. 02-1181. Pursuant, however, to Section
2 of Civil Service Commission Resolution No. 02-1181, Customs Personnel Order No. B-189-2013 should be read as
valid only for a period of one (1) year. Consistency in executive issuances is of utmost importance. 220 As much as
possible, it is the duty of the courts to harmonize and reconcile them. 221 In Philippine International Trading
Corporation v. Presiding Judge Angeles,222 this court ruled:
Thus, there is no real inconsistency between LOI 444 and EO 133. There is, admittedly, a rearranging of the
administrative functions among the administrative bodies affected by the edict, but not an abolition of executive
power. Consistency in statutes as in executive issuances, is of prime importance, and, in the absence of a showing
to the contrary, all laws are presumed to be consistent with each other. Where it is possible to do so, it is the duty
of courts, in the construction of statutes, to harmonize and reconcile them, and to adopt a construction of a
statutory provision which harmonizes and reconciles it with other statutory provisions. The fact that a later
enactment may relate to the same subject matter as that of an earlier statute is not of itself sufficient to cause an
implied repeal of the latter, since the law may be cumulative or a continuation of the old one. 223 (Emphasis
supplied, citations omitted)

Similarly, this court should also uphold as much as possible the validity of Customs Personnel Order No. B-189-
2013 as a valid exercise of executive power to conform to the Policies on Detail. "Every inten[t] of the law should
lean towards its validity, not its invalidity."224 Hence, the duration of Customs Personnel Order No. B-189-2013,
being independent and severable from the order of detail itself, should be the only provision declared void. Since
there is no record that private respondents consented to be detailed for more than one (1) year from September
17, 2013, Customs Personnel Order No. B-189-2013, while effective for the duration of one (1) year from
enactment, already ceased to take effect. The ponencia ruled that Customs Personnel Order No. B-189-2013
violates Section 3 of Executive Order No. 140 because at the time of its issuance, the Customs Policy Research
Office had no organic personnel yet.225cralawred The ponencia also ruled that the Department of Finance
Secretary had not yet issued rules and regulations for the Customs Policy Research Office. 226 There is nothing in
Executive Order No. 140 that requires that the organic personnel of the Customs Policy Research Office must first
be organized and that rules must first be issued by the Department of Finance Secretary before the Bureau of
Customs can start forming its team that will augment and reinforce the organic personnel of the Customs Policy
Research Office. Courts should avoid as much as possible any construction invalidating administrative
issuances.227 Unless there is a clear violation of Executive Order No. 140, Customs Personnel Order No. B-189-2013
should remain valid.

ACCORDINGLY, the Petition should be GRANTED. Private respondents' Petition for declaratory relief filed before
the Regional Trial Court should be DISMISSED for lack of jurisdiction.

G.R. No. 209331, April 24, 2015

DEPARTMENT OF FINANCE, REPRESENTED BY HON. CESAR V. PURISIMA IN HIS OFFICIAL CAPACITY AS

SECRETARY, AND THE BUREAU OF CUSTOMS, REPRESENTED BY HON. ROZZANO RUFINO B. BIAZON, IN HIS
OFFICIAL CAPACITY AS COMMISSIONER OF CUSTOMS, Petitioners, v. HON. MARINO M. DELA CRUZ, JR., IN HIS
CAPACITY AS EXECUTIVE JUDGE, REGIONAL TRIAL COURT, MANILA, HON. FELICITAS O. LARON-CACANINDIN, IN
HER CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL COURT, MANILA, BRANCH 17, RONNIE C. SILVESTRE,
EDWARD P. DELA CUESTA, ROGEL C. GATCHALIAN, IMELDA D.CRUZ, LILIBETH S. SANDAG, RAYMOND P.
VENTURA, MA. LIZA S. TORRES, ARNEL C. ALCARAZ, MA. LOURDES V. MANGAOANG, FRANCIS AGUSTIN Y. ERPE,
CARLOS T. SO, MARIETTA D. ZAMORANOS, CARMELITA M. TALUSAN,1 AREFILES H. CARREON,2 AND ROMALINO
G. VALDEZ, Respondents.
 DECISION

CARPIO, J.:

The Case

Petitioners assail the Order dated 4 October 20133 issued by Judge Felicitas O. Laron-Cacanindin (Judge Laron-
Cacanindin) of the Regional Trial Court of Manila, Branch 17 (RTC Branch 17), in Civil Case No. 13-130820. The
Order extended the 72-hour Temporary Restraining Order (TRO) issued by Executive Judge Marino M. Dela Cruz, Jr.
(Executive Judge Dela Cruz) in favor of respondents Silvestre, et al.
4
to 20 days or until 21 October 2013 without need of posting bond.

The Antecedent Facts

The case stemmed from the issuance of Executive Order No. 140 (EO 140) on 2 September 2013, which created the
Customs Policy Research Office (CPRO) in the Department of Finance (DOF). EO 140 states that the CPRO "shall be
responsible for reviewing the customs administration policies, rules and procedures, and thereafter providing
sound recommendations for the improvement of the same." Section 3 of EO 140 provides that "CPRO shall be
composed of its organic personnel, as approved by the Department of Budget and Management (DBM) upon
recommendation of the DOF Secretary, augmented and reinforced by DOF and BOC personnel as well as those
detailed or seconded from other agencies, whether attached to the DOF or not. x x x." Section 9 of EO 140 states
that it shall "take effect immediately upon publication in two (2) newspapers of general circulation." EO 140 was
published in Manila Bulletin and Philippine Star on 17 September 2013. On the same day of the publication of EO
140, Bureau of Customs (BOC) Commissioner Rozzano Rufino B. Biazon (Commissioner Biazon) issued Customs
Personnel Order No. B-189-2013 (CPO 189-2013) detailing 27 BOC personnel holding the positions of Collector of
Customs V and VI, including respondents in this case, to CPRO "effective immediately and valid until sooner
revoked." CPO 189-2013 was approved by DOF Secretary Cesar V. Purisima (Secretary Purisima). On 30 September
2013, respondents filed an action for Declaratory Relief with Application for Temporary Restraining Order and/or
Writ of Preliminary Injunction before the Regional Trial Court (RTC) of Manila. On 1 October 2013, Executive Judge
Dela Cruz issued a TRO for a period of 72 hours enjoining petitioners or any person acting for and in their behalf
from implementing CPO 189-2013. Thereafter, the case was raffled to the sala of Judge Laron-Cacanindin. In the
assailed Order of 4 October 2013, Judge Laron-Cacanindin extended Executive Judge Dela Cruz's 72-hour TRO for
20 days or until 21 October 2013. She then set the hearing for the issuance of a preliminary injunction on 18
October 2013. On 21 October 2013, petitioners filed a Petition for Certiorari and Prohibition before this Court, with
prayer for the issuance of a TRO or a writ of preliminary mandatory injunction. Petitioners alleged that the case
involves personnel action affecting public officers which is under the exclusive jurisdiction of the Civil Service
Commission (CSC). Petitioners also alleged that respondents failed to exhaust all administrative remedies available
to them before filing the petition before the RTC. Petitioners also alleged that CPO 189-2013 is an internal
personnel order with application that is limited to and only within BOC and as such, it cannot be the subject of an
action for declaratory relief. In their Comment, respondents alleged that the case involves the validity and
constitutionality of CPO 189-2013, and thus, it is beyond the jurisdiction of the CSC. Respondents further alleged
that EO 140 violated Article 2 of the Civil Code when it became effective immediately after its publication. In their
Reply, petitioners alleged that respondents only assailed the validity of EO 140 to justify their filing of an action for
declaratory relief. As regards its effectivity, petitioners alleged that EO 140 states that it shall "take effect
immediately upon publication in two (2) newspapers of general circulation." In an Order dated 21 October 2013,
Judge Laron-Cacanindin denied respondents' application for the issuance of a writ of preliminary injunction. In an
Order dated 5 November 2013, Judge Laron-Cacanindin inhibited herself from further hearing the case.

The Issues

The issues for determination by this Court are the following:

 1. 1. Whether the RTC has jurisdiction over the action for declaratory relief filed by respondents;
2. 2. Whether respondents failed to exhaust administrative remedies in filing the action before the RTC;
3. 3. Whether EO 140 violated Article 2 of the Civil Code when it became effective immediately after its
publication; and
4. 4. Whether CPO 189-2013 was validly issued.

The Ruling of this Court

Jurisdiction over the Petition

The CSC has jurisdiction over all employees of government branches, subdivisions, instrumentalities, and agencies,
including government-owned or controlled corporations with original charters.5 The CSC is the sole arbiter of
controversies relating to the civil service.6 The rule is that disciplinary cases and cases involving personnel actions,
including "appointment through certification, promotion, transfer, reinstatement, reemployment, detail,
reassignment, demotion, and separation," are within the exclusive jurisdiction of the CSC. 7 This rule is embodied in
Section 1, Rule V of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil
Service Laws (Omnibus Rules) which states:
SECTION 1.x x x. As used in these Rules, any action denoting movement or progress of personnel in the civil service
shall be known as personnel action. Such action shall include promotion, transfer, reinstatement, reemployment,
detail, secondment, reassignment, demotion and separation, x x x.

Under Section 8, Rule VII of the Omnibus Rules, "[a] detail is the movement of an employee from one department
or agency which is temporary in nature, which does not involve a reduction in rank, status or salary and does not
require the issuance of another appointment." CPO 189-2013 is an order detailing personnel from the BOC to
CPRO under the DOF. A reading of the petition filed before the RTC shows that respondents were questioning their
mass detail and reassignment to CPRO. According to respondents, their detail was carried out in bad faith and was
meant to remove them from their permanent positions in the BOC. The action appears to be a personnel action
under the jurisdiction of the CSC. However, the petition went beyond questioning the detail of respondents.
Respondents further assailed the validity and constitutionality of CPO 189-2013. Respondents alleged that CPO
189-2013 was issued even before EC) 140, pursuant to which CPO 189-2013 was issued, became effective.
Respondents alleged that CPO 189-2013 was issued to beat the deadline of the Commission on Elections' ban on
personnel movement from 28 September 2013 to 20 October 2013 due to the scheduled barangay elections.
When respondents raised the issue of validity and constitutionality of CPO 189-2013, the issue took the case
beyond the scope of the CSC's jurisdiction because the matter is no longer limited to personnel action. Thus, the
RTC did not abuse its discretion in taking cognizance of the action.

Failure to Exhaust Administrative Remedies

Petitioners allege that respondents failed to exhaust their administrative remedies before filing the case with the
RTC. The doctrine of exhaustion of administrative remedies allows administrative agencies to carry out their
functions and discharge their responsibilities within the specialized areas of their respective competence. 8 The
doctrine entails lesser expenses and provides for the speedier resolution of controversies. 9

Therefore, direct recourse to the trial court, when administrative remedies are available, is a ground for dismissal
of the action. The doctrine, however, is not without exceptions. Among the exceptions are: (1) where there is
estoppel on the part of the party invoking the doctrine; (2) where the challenged administrative act is patently
illegal, amounting to lack of jurisdiction; (3) where there is unreasonable delay or official inaction that will
irretrievably prejudice the complainant; (4) where the amount involved is relatively so small as to make the rule
impractical and oppressive; (5) where the question involved is purely legal and will ultimately have to be decided
by the courts of justice; (6) where judicial intervention is urgent; (7) where the application of the doctrine may
cause great and irreparable damage; (8) where the controverted acts violate due process; (9) where the issue of
non-exhaustion of administrative remedies had been rendered moot; (10) where there is no other plain, speedy
and adequate remedy; (11) where strong public interest is involved; and (12) in quo warranto proceedings. 10

In this case, respondents allege that CPO 189-2013 is contrary to law and unconstitutional. Respondents assail CPO
189-2013 as patently illegal, arbitrary, and oppressive. This case clearly falls within the exceptions where
exhaustion of administrative remedies need not be resorted to by respondents.

Effectivity of EO 140

Respondents allege that EO 140 took effect only on 2 October 2013, fifteen days after its publication in two
newspapers of general circulation. Hence, respondents argue that when CPO 189-2013 was issued, EO 140 was not
yet effective. Article 2 of the Civil Code of the Philippines, as amended by Executive Order No. 200,11 is clear on this
issue. It states:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official
Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.
The proviso "unless it is otherwise provided" refers to an effectivity date other than after fifteen days following the
completion of the law's publication.
12
Thus, it is within the discretion of the legislature, or the Executive Department in this case, whether to shorten
or extend the fifteen-day period13 as long as there is compliance with the requirement of publication. Here, Section
9 of EO 140 provides that the "order shall take effect immediately upon publication in two (2) newspapers of
general circulation." EO 140 was published in Manila Bulletin and Philippine Star on 17 September 2013. As such,
EO 140 took effect on 17 September 2013. In addition, the Court already ruled that "[interpretative regulations
and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the
public, need not be published."14EO 140 is an internal regulation that affects primarily the personnel of the DOF
and the BOC. It remains valid even without publication.

Validity of CPO 189-2013

Respondents assail the validity of CPO 189-2013. Respondents allege that under EO 140, CPRO shall be composed
of its organic personnel, as approved by the DBM upon recommendation of the DOF Secretary. The organic
personnel was supposed to be augmented and reinforced by DOF and BOC personnel. Respondents allege that
they were detailed to CPRO even before its organic personnel could be constituted. We rule for respondents.
Section 3 of EO 140 provides:
SECTION 3. Personnel and Staffing Complement. The CPRO shall be composed of its organic personnel, as
approved by the Department of Budget and Management (DBM) upon recommendation of the DOF Secretary,
augmented and reinforced by DOF and BOC personnel as well as those detailed or seconded from other agencies,
whether attached to the DOF or not. In addition, the CPRO, upon approval of the DOF Secretary, may hire or
engage technical consultants to provide necessary support in the performance of its mandate.

Respondents were supposed to augment and reinforce the existing organic personnel of CPRO. Yet, at the time of
respondents' detail, CPRO had not been formally organized. CPRO had no organic personnel that had been
approved by the DBM upon recommendation of the DOF Secretary. The DOF Secretary had yet to promulgate rules
and regulations and to prescribe procedures and processes to enable CPRO to effectively exercise its powers and
duties, as required by Section 4 of EO 140. In addition, under Section 8, Rule VII of the Omnibus Rules, a detail is
temporary in nature. In fact, detail of employees is only allowed for a maximum, period for those occupying
professional, technical, and scientific positions.15

Section 8, Rule VII of the Omnibus Rules provides:

SEC. 8. A detail is the movement of an employee from one department or agency to another which is temporary in
nature, which does not involve a reduction in rank, status or salary and does not require the issuance of another
appointment. The employee detailed receives his salary only from his mother unit/agency. Detail shall be allowed
only for a maximum period in the case of employees occupying professional, technical and scientific position. If the
employee believes that there is no justification for the detail, he may appeal his case to the Commission. Pending
appeal, the decision to detail the employee shall be executory unless otherwise ordered by the Commission.
Section 2 of CSC Resolution No. 021181, dated 13 September 2002, 16 clarified the maximum period of detail of
employees. It states:
Section 2. Duration of the detail. The detail shall be allowed only for a maximum period of one year. Details
beyond one year may be allowed provided it is with the consent of the detailed employee. The extension or
renewal of the period of the detail shall be within the authority of the mother agency. If the employee believes
that there is no justification for the detail, he/she may appeal his/her case to the proper Civil Service Commission
Regional Office. Pending appeal, the detail shall be executory unless otherwise ordered by said regional office.
Decision of said regional office may be further appealed to the Commission en banc.
In this case, CPO 189-2013 did not provide for the period of respondents' detail. It only provided that the order
"shall be effective immediately and valid until sooner revoked," making the detail of respondents indefinite. There
was nothing to show that respondents were occupying professional, technical, and scientific positions that would
have allowed their detail for the maximum period provided under Section 8, Rule VII of the Omnibus Rules.
Further, CSC Resolution No. 021181 did not distinguish between an ordinary employee and an employee occupying
professional, technical, and scientific position. Hence, it should have been specified that the maximum period of
respondents' detail should not exceed one year. Petitioners assert, and we quote:
There is a cancer of corruption we must extinguish. The drive to rid the government of graft and corruption
deserves the support of everyone. The principle of good governance cannot, should not, be trivialized nor
oversimplified by tenuous whimpering and individualism intended to detract from the urgent need to cleanse the
Republic from a mainstream culture of unabated corruption, perpetuated with impunity and sense of self-
entitlement. The issue at hand is not about who, but what; it is not about individual loss, but about national gain.
Whether from the birth pains of reform, this nation can gain a foothold, nay, a stride into restoring this nation into
its prideful place from the clutches of a "kleptocratic mafia" that had gained a strangehold into one of the nation's
primary sources of revenue.17

Indeed, we commend and support the reforms being undertaken in the different agencies of the government.
However, we cannot allow department heads to take shortcuts that will undermine and disregard the basic
procedures of the law.

WHEREFORE, we PARTIALLY GRANT the petition. We sustain the validity of Executive Order No. 140. We rule that
the Regional Trial Court has jurisdiction over the action for declaratory relief filed by respondents. We further rule
that Customs Personnel Order No. B-189-2013 was not validly issued.

SO ORDERED.

Peralta,*Del Castillo, and Mendoza, JJ., concur. Leonen, J., see separate dissenting opinion.

Endnotes:

*
Designated acting member per Raffle dated 10 August 2015.
1
Carmelita M. Talusan withdrew as petitioner in Civil Case No. 13-130820, noted by the trial court in its Order
dated 4 October 2013. Rollo, p. 58.
2
Arefiles H. Carreon manifested his intent to withdraw as petitioner in Civil Case No. 13-130820 per letter to
counsel dated 16 October 2013. Id. at 119.
3
Id. at 57-63.
4
Ronnie C. Silvestre, Edward P. Dela Cuesta, Rogel C. Gatchalian, Imelda D. Cruz, Lilibeth S. Sandag, Raymond P.
Ventura, Ma. Liza S. Torres, Arnel C. Alacaraz, Ma. Lourdes V. Mangaoang, Francis Agustin Y. Erpe, Carlos T. So,
Marietta D. Zamoranos, Carmelita M. Talusan, Arefiles H. Carreon, and Romalino G. Valdez.
5
Corsiga v. Judge Defensor, 439 Phil. 875 (2002).
6
Id.
7
Olanda v. Bugayong, 459 Phil. 626 (2003).
8
Addition Hills Mandahiyong Civic & Social Organization, Inc. v. Megaworld Properties & Holdings, Inc., G.R. No.
175039, 18 April 2012, 670 SCRA 83.
9
Id.
10
Vigilar v. Aquino, 654 Phil. 755 (2011).
11
Providing for the Publication of Laws Either in the Official Gazette or in a Newspaper of General Circulation in the
Philippines as a Requirement for their Effectivity.
12
Nagkakaisang Maralila ng Sitio Masigasig, Inc. v. Military Shrine Services-Philippine Veteran Affairs Office,
Department of National Defense, G.R. No. 187587, 5 June 2013, 697 SCRA 359.
13
Tañada v. Tuvera, 230 Phil. 528 (1986), Resolution on Motion for Reconsideration.
14
Id.
15
Section 26(6), Chapter V, Book V, Title I of Executive Order No. 292 provides that the detail shall be allowed
"only for a limited period in the case of employees occupying professional, technical and scientific positions." 16 As
contained in CSC Memorandum Circular No. 21, Series of 2002.
17
Rollo, p. 10.

DISSENTING OPINION

LEONEN, J.:

Respectfully, I dissent. The Civil Service Commission has exclusive jurisdiction over questions regarding personnel
actions affecting civil service employees.3 It is the sole arbiter that decides controversies regarding the civil service
at first instance.4 Courts should not directly assume jurisdiction based on allegations of unconstitutionality and
invalidity of government regulations when the question, in essence, involves a personnel action. This is a Petition
for certiorari and prohibition with very urgent prayer for the immediate issuance of a temporary restraining order
and/or writ of preliminary mandatory injunction5filed by the Department of Finance and the Bureau of Customs
before this court, assailing the Manila Regional Trial Court's Order6 dated October 1, 2013 issued by Executive
Judge Marino M. Dela Cruz, Jr., the Order7 dated October 4, 2013 issued by Presiding Judge Felicitas O. Laron-
Cacanindin, and all other subsequent Orders preventing the implementation of Customs Personnel Order No. B-l
89-2013.8 The Department of Finance and Bureau of Customs also pray for the dismissal of the Petition for
declaratory relief filed by private respondents before the Regional Trial Court of Manila.9 On September 2, 2013,
President Benigno Aquino III issued Executive Order No. 14010 creating the Customs Policy Research Office in the
Department of Finance.11 The Customs Policy Research Office shall review the Bureau of Customs' administration
policies, rules, and procedures, and provide recommendations for their improvement. 12 Section 3 of Executive
Order No. 140 provides for the composition of the Customs Policy Research Office:

SECTION 3. Personnel and Staffing Complement. The [Customs Policy Research Office] shall be composed of its
organic personnel, as approved by the Department of Budget and Management (DBM) upon recommendation of
the [Department of Finance] Secretary, augmented and reinforced by [Department of Finance] and [Bureau of
Customs] personnel as well as those detailed or seconded from other agencies, whether attached to the
[Department of Finance] or not. In addition, the [Customs Policy Research Office], upon approval of the
[Department of Finance] Secretary, may hire or engage technical consultants to provide necessary support in the
performance of its mandate.13
Executive Order No. 140 was published on September 17, 2013 in Manila Bulletin and Philippine Star. 14Section 9 of
Executive Order No. 140 provides:
SECTION 9. Effectivity. This Order shall take effect immediately upon publication in two (2) newspapers of general
circulation.15
On September 17, 2013, or on the same day of publication of Executive Order No. 140, Bureau of Customs
Commissioner Rozzano Rufino B. Biazon issued Customs Personnel Order No. B-189-2013,16with the approval of
Department of Finance Secretary Cesar V. Purisima. 17 Customs Personnel Order No. B-189-2013 detailed 27 Bureau
of Customs personnel to the Customs Policy Research Office under the Department of Finance.18 Thus:

September 17, 2013 CUSTOMS PERSONNEL ORDER No. B-189-2013 Under Section 3 of Executive Order No. 140,
series of 2013, the Customs Policy Research Office ("the CPRO") shall be composed of its organic personnel,
augmented and reinforced by personnel from the Department of Finance and Bureau of Customs as well [as] those
detailed or seconded from other agencies. Pursuant to the foregoing, the following personnel are detailed from
the Bureau of Customs to [Customs Policy Research Office] under the Department of Finance:

FULL NAME
(Surname, First Name)

POSITION TITLE AND SALARY GRADE

1. GATCHALIAN, ROGEL CRUZ Collector of Customs VI (26)

2. SO, CARLOS TAN Collector of Customs VI (26)
3. DELA CUESTA, EDUARD PALAFOX Collector of Customs VI (26)
4. BELMONTE, RICARDO RACIMO Collector of Customs VI (26)
5. MOLINA, ADELINA SANTOS ESTRELLA Collector of Customs VI (26)
6. SILVESTRE, RONNIE CRUZ Collector of Customs VI (26)
7. MANDANGAN, MACABANTUG DIMAPUNTUG Collector of Customs V (25)
8. BAUZON, PR1SCILLA DE VERA Collector of Customs V (25)
9. CRUZ, IMELDA DE JESUS Collector of Customs V (25)
10. TOGONON, MA. SONIA IRINEA CALUYO Collector of Customs V (25)
11. SANDAG L1LIBETH SUMBILLA Collector of Customs V (25)
12. VENTURA, RAYMOND P. Collector of Customs V (25)
13. ROQUE, TERESITA SIOSON Collector of Customs V (25)
14. TORRES, MA. LIZA SEBASTIAN Collector of Customs V (25)
15. MARTIN, MARITESS THEODOSSIS Collector of Customs V (25)
16. ALCARAZ, ARNEL CRUZ Collector of Customs V (25)
17. ALCID, TOMAS LADERA Collector of Customs V (25)
18. MANGAOANQ MA. LOURDES VILLAMAR Collector of Customs V (25)
19. ERPE, FRANCIS AGUSTIN YANCHA Collector of Customs V (25)
20. VILLAGARCIA, ROGELIO VELACRUZ Collector of Customs V (25)
21. ZAMORANOS, MARIETTA DANTE Collector of Customs V (25)
22. TAN, JUAN NAT1VIDAD Collector of Customs V (25)
23. TALUSAN, CARMELITA MANAHAN Collector of Customs V (25)
24. CARREON, AREFILES HAMOY Collector of Customs V (25)
25. PACARDO, RUSTUM LANUEVO Collector of Customs V (25)
26. VALDEZ, ROMALINO GABRIEL Collector of Customs V (25)
27. PABLO, TALEK J. Collector of Customs V (25)
All orders, circulars, memoranda, issuances contrary to or inconsistent herewith are hereby revoked and/or
modified, and all concerned shall be guided accordingly. This Order shall be effective immediaitely and valid until
sooner revoked. For strict compliance. (signed) ROZZANO RUFINO B. BIAZON Commissioner of Customs
APPROVED: (signed) CESAR V. PURISIMA Secretary Department of Finance Date:________19

Only 1220 of the affected employees complied with the directive in Customs Personnel Order No. B-189-2013 and
reported to the Customs Policy Research Office after its effectivity on September 17, 2014. 21The other
1522 affected employees refused to comply with the Order23 and instead filed on September 30, 2013 a
Petition24 for declaratory relief with an application for a temporary restraining order and/or a writ of preliminary
injunction before the Regional Trial Court of Manila.25cralawred The 15 employees assailed the validity of Customs
Personnel Order No. B-l89-2013.26 They argued that Customs Personnel Order No. B-189-2013 violated (a) Section
70327 of Republic Act No. 1937 or the Tariff and Customs Code;28 (b) their right to security of tenure as career
service officers defined under Book V, Title I, Subtitle A, Chapter 2, Section 7 of Executive Order No. 292; 29 and (c)
Section 3 of Executive Order No. 140.30 They further argued that Customs Personnel Order No. B-189-2013 was
invalid for having been issued prior to the effectivity of Executive Order No. 140. 31 They relied on Article 232 of the
Civil Code that provides that laws become effective 15 days after complete publication. 33 On October 1, 2013,
Executive Judge Marino M. Dela Cruz, Jr. granted a 72-hour temporary restraining order to stop the
implementation of Customs Personnel Order No. B-189-2013.34 The case was then raffled to Branch 17 presided by
Judge Felicitas O. Laron-Cacanindin (Judge Laron-Cacanindin).35

On October 4, 2013,36 the Department of Finance and the Bureau of Customs filed a Motion to Dismiss. 37They
argued that the Regional Trial Court had no jurisdiction over the employees' Petition for declaratory relief and that
the requisites for the filing of a Petition for declaratory relief were lacking.38 In the Order dated October 4, 2013,
Judge Laron-Cacanindin extended the temporary restraining order to 20 days after finding that Customs Personnel
Order No. B-189-2013 had "violate[d] the rules on detail because it failed to provide the duration of the
detail."39 In the same Order, Judge Laron-Cacanindin stated that the Order was without prejudice to further
findings of the court after trial on the merits of the main case for declaratory relief. 40 In the Order41 dated October
21, 2013, Judge Laron-Cacanindin denied the employees' application for a writ of preliminary injunction. 42 The
denial of their application for a writ of preliminary injunction prompted six (6) of the employees who filed the
Petition to report to the Customs Policy Research Office.43 The returning employees reasoned that they reported
for work so they would not be charged with insubordination. 44

On October 21, 2013, the Department of Finance and Bureau of Customs filed this Petition for certiorari and
prohibition.45 This court required the 15 employees to file a Comment on the Petition. 46 After filing the
Comment,47 the Department of Finance and Bureau of Customs were ordered to file a Reply. 48 In their Petition for
certiorari, the Department of Finance and Bureau of Customs argued that the Civil Service Commission, not the
Regional Trial Court, had jurisdiction over the subject matter of this case and that the 15 employees failed to
exhaust all available administrative remedies before filing their Petition for declaratory relief.49 According to the
Department of Finance and Bureau of Customs, Customs Personnel Order No. B-189-2013 was a personnel action,
and questions involving personnel actions in the civil service should be lodged before the Civil Service
Commission.50 Further, the Department of Finance and Bureau of Customs argued that some of the requirements
for filing a Petition for declaratory relief were absent.51 First, a declaratory relief is available only when the
government issuance being questioned is a national law or an ordinance of general application, 52 Since Customs
Personnel Order No. B-189-2013 was an internal personnel order whose application was limited within the Bureau
of Customs, it cannot be a subject of a Petition for declaratory relief.53 Second, the declaratory relief was no longer
available because Customs Personnel Order No. B-189-2013 had been breached prior to the filing of the
Petition.54 The 15 employees allegedly committed a breach when they failed to report to the Customs Policy
Research Office upon the effectivity of Customs Personnel Order No. B-189-2013 on September 17, 2013.55 Third, a
declaratory relief was not available to the 15 employees because they had an adequate remedy with the Civil
Service Commission.56 Regarding the duration of the detail, the Department of Finance and Bureau of Customs
argued that the detail was not indefinite and that pursuant to Civil Service Commission Resolution No. 021181 57 or
the Policies on Detail, the detail shall only last for at most, one (1) year.58
In their Comment dated January 8, 2014, the 15 employees countered that the Regional Trial Court had jurisdiction
as the main issue was the validity and constitutionality of Customs Personnel Order No. B-189-2013.59 The
resolution of this issue required the exercise of judicial review, which was beyond the competence of the Civil
Service Commission.60 Since the 15 employees' Petition for declaratory relief alleges that Customs Personnel Order
No. B-189-2013 is unconstitutional and invalid, those allegations should suffice for the Regional Trial Court to
assume jurisdiction.61 According to the 15 employees, Customs Personnel Order No. B-189-2013 is unconstitutional
for violating their right to security of tenure.62 Their detail to the Customs Policy and Research Office amounts to
constructive dismissal63 as they are now "mere researchers[.]"64 The 15 employees argue that all the requisites for
the filing of a Petition for declaratory relief are present.65 They claim that Customs Personnel Order No. B-189-
2013 is a government regulation, affecting their rights, duties, rank, and status. 66 Hence, Customs Personnel Order
No. B-189-2013 is a proper subject of a Petition for declaratory relief. 67 They also argue that Customs Personnel
Order No. B-189-2013 is void, producing no effect.68 According to them, a void or unconstitutional law or issuance
cannot be a source of an obligation so it cannot be breached. 69

This case should consider the following issues: First, whether the Regional Trial Court has jurisdiction over private
respondents' Petition for declaratory relief; Second, whether all the requisites for the filing of a Petition for
declaratory relief are present; and Finally, whether Customs Personnel Order No. B-189-2013 is void because of its
indefinite term.

I.

The Constitution confers jurisdiction over the Civil Service Commission for cases involving the civil service. Article
IX(B), Section 1(1) of the Constitution provides:
SECTION 1.(1) The Civil Service shall be administered by the Civil Service Commissioncomposed of a Chairman and
two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at
least thirty-five years of age, with proven capacity for public administration, and must not have been candidates
for any elective position in the elections immediately preceding their appointment. (Emphasis supplied)
As part of the Civil Service Commission's mandate to administer the civil service, Article IX(B), Section 3 of the
Constitution provides:
SECTION 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a
career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and
courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources
development programs for all levels and ranks, and institutionalize a management climate conducive to public
accountability. It shall submit to the President and the Congress an annual report on its personnel programs.
(Emphasis supplied)
The Constitution gives the Civil Service Commission quasi-judicial powers through Article IX(A), Sections 6 and 7,
which provide:
SECTION 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or
before any of its offices. Such rules, however, shall not diminish, increase, or modify substantive rights.

SECTION 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before
it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted
for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the
Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party
within thirty days from receipt of a copy thereof. (Emphasis supplied)
As the "central personnel agency of the Government," 70 Book V, Title I, Subtitle A, Chapter 3, Section 12(11) of
Executive Order No. 292 or the Administrative Code of 1987 provides:
SECTION 12. Powers and Functions. — The [Civil Service] Commission shall have the following powers and
functions: . . . .

(11)
Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested
appointments, and review decisions and actions of its offices and of the agencies attached to it. Officials and
employees who fail to comply with such decisions, orders, or rulings shall be liable for contempt of the
Commission. Its decisions, orders, or rulings shall be final and executory. Such decisions, orders, or rulings may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) days from receipt of a copy
thereof[.] (Emphasis supplied)
Further, for the implementation of Book V, Title I, Subtitle A, Chapter 3, Section 12(11) of Executive Order No.
292,71 Sections 5(B)(3), 6(B)(3), and 7(B)(2) of Civil Service Commission Memorandum Circular No. 19-99 or the
Revised Uniform Rules on Administrative Cases in the Civil Service lay down the different offices of the civil service
where complaints involving personnel actions should be filed. Hence:
SECTION 5. Jurisdiction of the Civil Service Commission Proper.72 — The Civil Service Commission Proper shall have
jurisdiction over the following cases:
. . . . B. Non-Disciplinary
. . . . 3. Protests against the appointment, or other personnel actions, involving third level officials;73 and . . . .
SECTION 6. Jurisdiction of Civil Service Regional Offices. — The Civil Service Commission Regional Offices shall have
jurisdiction over the following cases:
. . . . B. Non-Disciplinary
....

3. 3. Decisions of national agencies and local government units within their geographical boundaries relative
to personnel actions and non-disciplinary cases brought before it on appeal; and

....
SECTION 7. Jurisdiction of Heads of Agencies. — Heads of Departments, agencies, provinces, cities, municipalities
and other instrumentalities shall have original concurrent jurisdiction, with the Commission, 74 over their respective
officers and employees.
. . . . B. Non-Disciplinary 2. Complaints on personnel actions and other non-disciplinary actions of their respective
personnel. (Emphasis supplied)
As the "central personnel agency of the Government" 75 with quasi-judicial powers76 and as the body tasked to
administer the civil service,77 the Civil Service Commission is the "sole arbiter of controversies relating to the civil
service[,]"78 including personnel actions, as this court has ruled.79 The material allegations in the Complaint or
Petition and the character of the relief sought determine which court has jurisdiction.80 In private respondents' 44
paragraphs in their Petition for declaratory relief filed before the Regional Trial Court, they alleged:
8. On 17 September 2013, without waiting for [Executive Order] No. 140's effectivity on 2 October 2013, the
[Bureau of Customs] issued [Customs Personnel Order] No. B-189-2013, signed by [Bureau of Customs]
Commissioner Rozzano Rufino B. Biazon and approved by [Department of Finance] Secretary, Cesar V. Purisima on
even date. [Customs Personnel Order] No. B-189-2013 states:
Under Section 3 of Executive Order No. 140, series of 2013, the Customs Policy Research Office (the "CPRO") shall
be composed of its organic personnel, augmented and reinforced by personnel from the Department of Finance
and Bureau of Customs as well as those (sic) detailed or seconded from other agencies. Pursuant to the foregoing,
the following personnel are detailed from the Bureau of Customs to [the Customs Policy Research Office] under
the Department of Finance: . . . .
9. Thus, [private respondents'] original and permanent appointments in plantilla positions as Collectors of Customs
VI and V were effectively and constructively revoked even before the effectivity of [Executive Order] No. 140
creating the [Customs Policy Research Office]. They are all "detailed" to the [Customs Policy Research
Office] without any appointment papers providing for their specific functions, status, salary grades, ranks, and
designation. By virtue of the assailed issuance, [private respondents'] were all removed from their respective
permanent positions as Collectors of Customs to form a supposed "research body." 10. The Department of Budget
and Management (DBM), pursuant to [Executive Order] No. 140 has not even approved the composition of the
organic personnel of the [Customs Policy Research Office]. Neither has the [Department of Finance] appeared to.
have made the requisite recommendation for that purpose, as mandated by [Executive Order] No. 140. 11. While
they have not been officially notified thereof, [private respondents] were reliably informed of the issuance of
[Customs Personnel Order] No. B-189-2013 and [petitioners'] attempt to unlawfully "detail" them to the [Customs
Policy Research Office]. . . . . 13. While the [Bureau of Customs] Commissioner's authority to reorganize is
recognized, it is neither absolute nor unbridled. The exercise thereof should not violate the law and the 1987
Constitution. The Constitution clearly mandates that "no officer or employee of the civil service shall be removed
or suspended except for cause provided by law." 14. Section 703 of [Republic Act] No. 1937, as amended, provides
that:
Assignment of Customs Officers and Employees to other duties. - The Commissioner of Customs may, with the
approval of the Secretary of Finance, assign any employee of the Bureau of Customs to any port, service, division
or office within the Bureau or assign him duties as the best interest of the service may require, in accordance with
the staffing pattern or organizational set-up as may be prescribed by the Commissioner of Customs with the
approval of the Secretary of Finance: Provided, that such assignment shall not affect the tenure of office of the
employees nor result in the change of status, demotion in rank and/or deduction of salary.
15. Section 2 of [Republic Act] No. 6656 [or An Act to Protect the Security of Tenure of Civil Service Officers and
Employees in the Implementation of Government Reorganization] further provides that due notice and hearing are
required to remove a public officer or employee pursuant to a bona fide reorganization, viz:
No officer or employee in the career service shall be removed except for a valid cause and after due notice and
hearing. A valid cause for removalexists when, pursuant to a bona fide reorganization, a position has been
abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the
exigencies of the service, or other lawful causes allowed by the Civil Service Law.
16. Thus, while the necessity and indispensability of reorganization when public interest demands may be justified,
civil service employees, much more career service officers with permanent appointments like [private
respondents], cannot be removed, suspended, or demoted from office except for cause provided by law. . . . . 18. In
this case, [Customs Personnel Order] No. B-l89-2013 allegedly "detailed" all 15 [private respondents], together with
12 other Collectors of Customs, to an advisory capacity of a policy coordinating body (CPRO) under the guise of
reorganization, thus effectively rendering vacant the 27 positions of collector of customs throughout the country.
19. Section 8, Rule VII of Civil Service Commission (CSC) Resolution No. 91-1631, otherwise known as the "Omnibus
Civil Service Rules and Regulations," provides that a "detail" is "the movement of an employee from one
department or agency to another which is temporary in nature, which does not involve a reduction in rank, status
or salary and does not require the issuance of another appointment." 20. The patent nullity of [Customs Personnel
Order] No. B-l89- 2013 is readily apparent since Section 703 of [the Tariff and Customs Code] merely authorizes
the [Bureau of Customs] Commissioner to assign or move [Bureau of Customs] personnel only within the Bureau.
Since the [Customs Policy Research Office] is a newly created "office" outside of the [Bureau of Customs], the
[Bureau of Customs] Commissioner's issuance of [Customs Personnel Order] No. B-l89-2013 which "details"
[private respondents] to the [Customs Policy Research Office] is clearly an ultra vires act, and is therefore invalid.
In fact, the [Bureau of Customs] Commissioner's own admission proves this ultra vires and invalid issuance, thus:
"It is more than a reshuffle because [private respondents] have actually been transferred to the [Department of
Finance], out of the Bureau of Customs" Biazon said in an ANC interview, confirming news first reported by the
Philippine Daily Inquirer. "Instead of just reassignment [to] another port, they're basically reassigned to another
office." "After their transfer out of the [Bureau of Customs], the next-in-rank collectors or division heads are taking
over as officers-in-charge of the different ports," he said.
21. There is no bona fide reorganization that took place. [Private respondents'] mass"detail" to the [Customs Policy
Research Office] was without any clear or definite direction as to their career status and functions. As a
consequence, [private respondents] were intentionally and effectively placed on a "floating status." 22.
Furthermore, [Executive Order] No. 140 clearly provides that the [Customs Policy Research Office] shall be
composed of its organic personnel, and that said policy research body - after the organization of its own organic
personnel - shall merely be augmented and reinforced by Department of Finance and Bureau of Customs
personnel. Despite the absence of any organic personnel, much less approval from the Department of Budget and
Management or even a recommendation from the [Department of Finance], [private respondents] have, in speed
haste, already been ordered to be "detailed" by the [Bureau of Customs] to the [Customs Policy Research Office],
and thus, effectively removed from their current respective permanent positions. 23. The landmark case of Dario v.
Mison, et al., where the Supreme Court voided the personnel reorganization within the [Bureau of Customs], is
highly instructive in this case, thus:
Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. . . . .
24. By no stretch of the imagination can the issuance of [Customs Personnel Order] No. B-189-2013 be said to have
been carried out in good faith. The undue haste in issuing [Customs Personnel Order] No. B-189- 2013 clearly
shows that respondents are attempting to beat the deadline on the COMELEC election ban on personnel
movementfrom 28 September 2013 to 28 October 2013 due to the forthcoming Barangay Elections. It cannot be
denied that [Executive Order] No. 140, which was signed by the President on 2 September 2013, has yet to take
effect on 2 October 2013, which is 15 days after its publication in two (2) newspapers of general circulation. On 17
September 2013, however, the [Bureau of Customs] already issued [Customs Personnel Order] No. B-189-2013,
which is based on [Executive Order] No. 140, and attempted to serve copies thereof to [respondents] on 26 to 27
September 2013 supposedly just in time before the COMELEC election ban on personnel movement takes effect on
28 September 2013. 25. More importantly, [Executive Order] No. 140 mandates that the transfer of [Bureau of
Customs] personnel should merely augment or reinforce the organic personnel of the [Customs Policy Research
Office]. Obviously, without any organic personnel, there is still nothing to augment or reinforce. . . . Hence, [private
respondents'] "detail" to the [Customs Policy Research Office] absent any compliance with the requirements under
[Executive Order] No. 140, was surely carried out in bad faith, and was meant to illegally remove [private
respondents] from their respective permanent positions, in blatant violation of the law and the Constitution. 26. It
should also be stressed that [private respondents] were appointed as Collectors of Customs with Position Titles VI
and V, with specific functions, duties, titles, and ranks clearly provided for in their respective appointment papers.
In contrast, their supposed "detail" to the [Customs Policy Research Office] under [Customs Personnel Order] No.
B-189-2013 does not even provide for a definite period of duty, their titles, new functions, or ranks. 27. Moreover,
under CSC Memorandum Circular No. 06-05, otherwise known as the "Guidelines on Designation" it is clear that:
. . . . B. Designees can only be designated to positions within the level they are currently occupying. However,
Division Chiefs may be designated to perform the duties of third level positions First level personnel cannot be
designated to perform the duties of second level positions. . . . .

29. The basis of [private respondents'] reassignment or the exigency necessary to remove them from their
positions is likewise inexistent. Such blanket "detail" relinquishes [private respondents'] permanent positions as
Collectors of Customs without due process and is contrary to their Constitutional right to security of tenure.
Clearly, the disparity between the positions of a Collector of Customs and a mere researcher is blatant. Therefore,
the transfer from the former to the latter unmistakeably denotes demotion.... . . . .

30. In the case of Pastor v. City of Pasig, the Supreme Court held that a reassignment or even detail which is
indefinite and which results in a reduction of rank and status is effectively a constructive dismissal from the
service. . . . . . . .

31. The principles on constructive dismissal clearly find analogous application to [private respondents]. By
definition, constructive dismissal is a quitting because continued employment is rendered impossible,
unreasonable or unlikely; when there is a demotion in rank or a diminution of pay. The test of constructive
dismissal is whether a reasonable person in the employee's position would have felt compelled to give up his
position under the circumstances. 11 is an act amounting to dismissal but is made to appear as if it were not.
Constructive dismissal is therefore a dismissal in disguise. The law recognizes and resolves this situation in favor of
employees in order to protect their rights and interests from the coercive acts of the employer. Thus, the Supreme
Court has ruled that the management prerogative to transfer an employee "cannot be used as a subterfuge by the
employer to rid himself of an undesirable worker."

32. Evidently, [private respondents'] "detail" to the [Customs Policy Research Office] operated as a blanket and
forced relinquishment of their permanent positions as Collectors of Customs in violation of their right to security of
tenure. In view thereof, it behooves upon this Honorable Court to correct such abuse of powers and retain [private
respondents] to their rightful ranks. . . . .
35. ... in accordance with the Supreme Court's ruling in Tañada v. Tuvera, laws and executive issuances shall take
effect after fifteen (15) days following the completion of their publication in the Official Gazette, or in a newspaper
of general circulation.

36. In this case, [Executive Order] No. 140 was published in the 17 September 2013 issue of the broadsheet
newspaper, Manila Bulletin. Thus, following the above legal standards, it is clear that [Executive Order] No. 140 has
yet to take legal effect on 2 October 2013. In other words, the [Bureau of Customs'] issuance of [Customs
Personnel Order] No. B-189-2013 on 17 September 2013 simply, has no legal basis, and is therefore premature and
patently invalid. To deprive [private respondents] of their permanent positions as Collectors of Customs and to
"detail" all 15 of them indefinitely as members of a research body on the basis of an invalid [Bureau of Customs]
and [Department of Finance] order are not only illegal but also unconstitutional for being violative of [private
respondents'] right to security of tenure.

37. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates
no office; it is, in legal contemplation, inoperative, as if it had not been passed. . . . For these reasons, [Customs
Personnel Order] No. B-189-2013 should be nullified and set aside, and its enforcement enjoined.

38. . . . The consequence [of implementing Customs Personnel Order No. B-189-2013] that is also readily obvious is
the chaos entailed in port operations, the collection of much needed Government revenues and public service as
[private respondents] perform functions either as District Collectors of all the 17 Collection Districts in the country,
or as Deputy Collectors for administration, assessment and operation in those different ports. . . . .

41. It cannot be overemphasized that the issuance of [Customs Personnel Order] No. B-189-2013 is illegal, and
blatantly violates existing law and the Constitution. As above mentioned, respondents intend to have [Customs
Personnel Order] No. B-189-2013 immediately effective. Thus, there is a manifest urgency for this Honorable Court
to immediately restrain [petitioners] from implementing [Customs Personnel Order] No. B-189-2013 upon receipt
of this petition and before the matter can be heard on notice. Otherwise, grave injustice and irreparable injury
would be suffered by [private respondents], in that:

(a)

[Executive Order] No. 140, on which [Customs Personnel Order] No. B-189-2013 is based, has yet to take effect
upon publication in two (2) newspapers of general circulation. [Executive Order] No. 140 was published in the 17
September 2013 issue of the Manila Bulletin, hence, it will only take effect on 2 October 2013. [Customs Personnel
Order] No. B-189-2013 cannot be given any effectivity as it is invalid for being blatantly premature and without
legal basis;

(b)

[Customs Personnel Order] No. B-189-2013 violates [Executive Order] No. 140, as the latter mandates that the
[Department of Finance], with the approval of the [Department of Budget and Management], has to recommend
the composition of the organic personnel of the [Customs Policy Research Office]. No such recommendation by the
[Department of Finance], much less the approval of the [Department of Budget and Management], has been
made. In fact, [Executive Order] No. 140 provides that the transfer of [Bureau of Customs] personnel should
merely augment or reinforce the organic personnel of the [Customs Policy Research Office]. Obviously, without
any organic personnel, there is still nothing to augment or reinforce. The [Customs Policy Research Office] is thus
in limbo, as there is yet no organic personnel in place;
(c)

[Customs Personnel Order] No. B-189-2013 is also contrary to Section 703 of [Republic Act] No. 1937, as amended,
which provides that "(t)he Commissioner of Customs may, with the approval of the Secretary of Finance, assign
any employee of the Bureau of Customs to any port, service, division or office within the Bureau or assign him
duties as the best interest of the service may require." Even Commissioner Biazon, in an interview with [the ABS-
CBN News Channel] admitted that "it is more than a reshuffle because they have actually been transferred to the
[Department of Finance], out of the Bureau of Customs." The Commissioner of Customs thus committed an illegal
and ultra vires act in "detailing" [private respondents] to the [Customs Policy Research Office], an office admittedly
outside the [Bureau of Customs]; and

(d)

[private respondents'] "detail" to the [Customs Policy Research Office] is [petitioners'] scheme to constructively
dismiss and demote [private respondents]. [Customs Personnel Order] No. B- 189-2013 operates as a blanket and
forced relinquishment of [private respondents'] permanent positions as Collectors of Customs in violation of their
constitutional right to security of tenure. [Private respondents] are all "detailed" to the [Customs Policy Research
Office] without any appointment papers providing for their specific functions, status, salary grades, ranks, and
designation, thereby intentionally and effectively placing them on "floating status."

(e)

[Private respondents] would be unduly displaced from their permanent positions with the appointment and/or
designation by the [Bureau of Customs] of new Collectors of Customs. 81 (Emphasis supplied, citations omitted)
An examination of the text of the Petition for declaratory relief readily shows that private respondents originally
questioned a personnel action. They essentially questioned their detail to the Customs Policy and Research Office.
Book V, Title I, Subtitle A, Chapter 5, Section 26 of Executive Order No. 292 defines a personnel action:
SECTION 26. Personnel Actions. — . . . As used in this Title, any action denoting the movement or progress of
personnel in the civil service shall be known as personnel action. Such action shall include appointment through
certification, promotion, transfer, reinstatement, re-employment, detail, reassignment, demotion, and separation.
(Emphasis supplied)
The assailed Customs Personnel Order No. B-189-2013 is a personnel action because it details 27 employees from
the Bureau of Customs to the Customs Policy Research Office. It is a movement of personnel in the civil service.
Cases involving personnel actions are within the exclusive jurisdiction of the Civil Service Commission and not
within the trial courts' jurisdiction.82 The issue is not novel. In Olanda v. Bugayong,83 respondent Leonardo G.
Bugayong (Bugayong), as President of the Philippine Merchant Marine Academy, relieved petitioner Menelieto A.
Olanda (Olanda) from his post as the Dean of the College of Marine Engineering of the Philippine Merchant Marine
Academy84 and imposed a three (3)-month suspension85 on the latter for allegedly "misusing classified
information."86 Olanda filed before the Regional Trial Court of Iba, Zambales a Petition for "quo warranto,
mandamus, and prohibition with prayer for the issuance of a writ of preliminary injunction and damages, claiming
that there was no valid cause to deprive him of his position[.]"87 This court ruled that the trial court had no
jurisdiction.88Hence:
Disciplinary cases and cases involving "personnel actions" affecting employees in the civil service including
"appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment,
demotion and separation" are within the exclusivejurisdiction of the Civil Service Commission which is the sole
arbiter of controversies relating to the civil service. . . . . It was thus error for the trial court, which does not have
jurisdiction, to, in the first, [sic] place take cognizance of the petition of petitioner assailing his relief as Dean and
his designation to another position. This leaves it unnecessary to dwell on the issues herein raised by petitioner.
WHEREFORE, the petition is, upon the ground of lack of jurisdiction of the trial court, hereby DENIED. SO
ORDERED.89 (Emphasis supplied, citation omitted)
In Casimina v. Judge Legaspi,90 petitioner Pablo B. Casimina (Casimina), General Manager of the Philippine
Fisheries Development Authority, issued Special Order No. 82, which reassigned private respondent Emmanuel T.
Illera (Illera), Port Manager of the Iloilo Fishing Port Complex, from Iloilo to the central office in Quezon
City.91 After the denial of his request for reconsideration,92 Illera filed for injunction with a prayer for temporary
restraining order and a writ of preliminary injunction against Casimina before the Regional Trial Court of Iloilo "to
restrain [Casimina] from transferring him to the central office in Quezon City." 93 Casimina filed an Omnibus Motion
to dismiss the Complaint on the ground of, among others, lack of jurisdiction. 94 This court ruled that the trial court
has no jurisdiction over the Petition.95 "[Tjhis case falls within the jurisdiction of the Civil Service Commission (CSC)
because it involves the movement of government personnel to promote order and efficiency in public
service."96 In Mantala v. Salvador,97 Dr. Julia P. Regino (Regino) filed a formal protest before the Committee on
Evaluation and Protest of the Department of Health questioning the appointment of Dr. Mariquita J. Mantala (Dr.
Mantala).98 The Committee on Evaluation and Protest upheld Dr. Mantala's appointment. 99 Upon appeal and
reconsideration, the Civil Service Commission also upheld Dr. Mantala's appointment.100 The Resolution of the Civil
Service Commission became final and executory.101 Regino then filed an action for quo warranto and mandamus
before the Regional Trial Court in Quezon City.102The trial court annulled and set aside Dr. Mantala's appointment
and directed the Secretary of Health to withdraw Dr. Mantala's appointment and to issue another for
Regino.103 Dr. Mantala then filed a Petition for Review on certiorari before this court. 104 This court granted the
Petition and annulled the Decision of the trial court:105
Disciplinary cases, and cases involving "personnel actions" affecting employees in the civil service—including
"appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment,
demotion and separation," and, of course, employment status and qualification standards—are within the exclusive
jurisdiction of the Civil Service Commission. The Constitution declares the Commission to be "the central personnel
agency of the Government," having power and authority to administer the civil service; to promulgate its own
rules concerning pleadings and practice before it or. before any of its offices; and to render decision in "any case or
matter brought before it within sixty days from the date of its submission for decision or resolution," which
decision, or order or ruling "may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof." . . . . It was thus error, because beyond its competence, for the
respondent Trial Court to take cognizance of the quo warranto and mandamus action instituted by Dr. Regino
which was in essence a protest against the appointment of Dr. Mantala. 106 (Emphasis supplied, citations omitted)
In all these cases, this court upheld the jurisdiction of the Civil Service Commission over complaints involving the
movement of personnel in the civil service.

II.

The doctrine of primary administrative jurisdiction precludes trial courts from resolving a controversy involving a
question that is within the a exclusive jurisdiction of an administrative tribunal. 107 The doctrine disallows courts "to
arrogate unto itself the authority to resolve a controversy the jurisdiction over which is initially lodged with an
administrative body of special competence."108 In Pambujan Sur United Mine Workers v. Samar Mining Company,
Inc.,109 the plaintiff Pambujan Sur United Mine Workers filed a Complaint before the Court of First Instance (now
Regional Trial Court) against the Samar Mining Company, Inc. (Samar Mining) alleging breach of their closed-shop
agreement.110 Samar Mining filed a Motion to Dismiss arguing that the regular courts had no jurisdiction over the
subject matter of the Complaint.111 Samar Mining argued that the Court of Industrial Relations (now National Labor
Relations Commission) had jurisdiction over cases involving conditions of employment. 112 The Court of First
Instance granted the Motion to Dismiss.113 Upon appeal, this court applied the "exclusion theory,"114i.e., "where
jurisdiction is conferred in express terms upon one court, and not upon another [and where] it has been held that
it is the intention that the jurisdiction conferred shall be exclusive" 115 and upheld the exclusive jurisdiction of the
Court of Industrial Relations (now National Labor Relations Commission).116 Hence:
But judicial wisdom in this particular matter would seem to favor adherence to the exclusion theory, what with the
litigant's ordinary duty to exhaust administrative remedies and the "doctrine of primary administrative
jurisdiction," sense-making and expedient,
"That the courts cannot or will not determine a controversy involving a question which is within the jurisdiction of
an administrative tribunal prior to the decision of that question by the administrative tribunal, where the question
demands the exercise of sound administrative discretion requiring the special knowledge, experience, and services
of the administrative tribunal to determine technical and intricate matters of fact, and a uniformity of ruling is
essential to comply with the purposes of the regulatory statute administered." (42 Am. Jut., 698.) 117
This court also made a similar ruling in Javier v. Court of Appeals.118 In Javier, Normito Javier (Normito) was
"employed by private respondent Jebsens Maritime, Inc. as a boatswain[.]"119 Normito, however, died at
sea.120 Upon learning of her husband's death, Lolita Javier (Lolita) went to the office of Jebsens Maritime, Inc. and
the latter "promised to give the corresponding death benefits[.]"121 After Jebsens Maritime, Inc. had failed to pay
the promised death benefits, Lolita filed a Complaint before the Regional Trial Court of Makati for a sum of money
for herself and on behalf of her six (6) minor children against Jebsens Maritime, Inc. and its shipmaster.122 This
court ruled that under Section 3(d)123 of Executive Order No. 247 or the Reorganization Act of the Philippine
Overseas Employment Administration, it was the Philippine Overseas Employment Administration that had original
and exclusive jurisdiction over Lolita's Complaint and that the trial court had no jurisdiction over the subject matter
of her Complaint.124Hence, under the doctrine of primary administrative jurisdiction, the trial court cannot resolve
the controversy.125cralawred This court ordered the Regional Trial Court to dismiss the case for lack of
jurisdiction.126 In Catipon, Jr. v. Japson,127 respondent Jerome Japson (Japson), "a former Senior Member Services
Representative of [the] [Social Security System,] Bangued, filed a letter-complaint [before] the Civil Service
Commission-[Cordillera Administrative Region] Regional Director[.]" 128 He alleged that petitioner Macario U.
Catipon, Jr. (Catipon) made deliberate false entries in his application to take the Civil Service Professional
Examination.129 The Civil Service Commission-Cordillera Administrative Region Regional Director found Catipon
guilty of conduct prejudicial to the best interest of the service. 130 Catipon appealed to the Court of Appeals, which
dismissed the appeal.131 The Court of Appeals held that instead of filing the appeal before the Court of Appeals,
Catipon should have appealed to the Civil Service Commission, based on Sections 5(A)(1), 132 43,133 and 49134 of the
Civil Service Commission Uniform Rules on Administrative Cases.135 This court affirmed the Decision of the Court of
Appeals136 and held:
The [Court of Appeals] is further justified in refusing to take cognizance of the petition for review, as "[t]he
doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a
controversy the jurisdiction over which is initially lodged with an administrative body of special competence." When
petitioner's recourse lies in an appeal to the Commission Proper in accordance with the procedure prescribed in
[Revised Uniform Rules on Administrative Cases in the Civil Service], the [Court of Appeals] may not be faulted for
refusing to acknowledge petitioner before it. 137 (Emphasis supplied)
Hence, considering the exclusive jurisdiction of the Civil Service Commission to hear and decide administrative
cases, including those involving personnel actions, as granted by the Constitution, the Regional Trial Court cannot
assume jurisdiction based on the doctrine of primary administrative jurisdiction. In sustaining the trial court's
assumption of jurisdiction over the Petition for declaratory relief, the ponencia held that the case falls under an
exception to the doctrine of exhaustion of administrative remedies. 138 The ponencia states:
In this case, respondents allege that [Customs Personnel Order No. B-189-2013] is contrary to law and
unconstitutional. Respondents assail [Customs Personnel Order No. B-189-2013] as patently illegal, arbitrary, and
oppressive. This case clearly falls within the exceptions where exhaustion of administrative remedies need not be
resorted to by respondents.139
Private respondents, citing Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng
Muntinlupa, Inc. (KBMBPM) v. Dominguez,140 likewise argue that exceptions to the doctrine of exhaustion of
administrative remedies apply.141 Hence:
Moreover, the doctrine of exhaustion of administrative remedies also yields to other exceptions, such as when the
question involved is purely legal, as in the instant case, or where the questioned act is patently illegal, arbitrary or
oppressive.142
The doctrine of exhaustion of administrative remedies does not apply and, consequently, its exceptions. The
doctrine of primary administrative jurisdiction is different from the doctrine of exhaustion of administrative
remedies. Under the doctrine of primary administrative jurisdiction, when an administrative agency is granted
primary jurisdiction over the subject matter, the courts "cannot or will not determine a controversy involving a
question which is within the jurisdiction of an administrative tribunal prior to the decision of that question by the
administrative tribunal[.]"143 The doctrine of primary administrative jurisdiction presupposes that the
administrative agency has jurisdiction over the subject matter while the court does not. The Complaint or Petition,
therefore, cannot be filed before the court. As the issue is jurisdictional, there should be no exception to the
doctrine of primary administrative jurisdiction. When the complaint or petition is filed before a court with no
subject matter jurisdiction, the court has no other option but to dismiss the case. 144 On the other hand, under the
doctrine of exhaustion of administrative remedies, before a party may seek intervention from the court, he or she
should have already exhausted all the remedies in the administrative level. 145 If there is still a remedy available
within the administrative machinery, "then such remedy should be exhausted first before [the] court's judicial
power can be sought."146 The doctrine of exhaustion of administrative remedies presupposes that both the courts
and the administrative agency have concurrent jurisdiction. This is because non-observance of the doctrine of
exhaustion of administrative remedies does not affect the court's jurisdiction. 147 In Soto v. Jareno,148 this court
ruled:
Failure to observe the doctrine of exhaustion of administrative remedies does not affect the jurisdiction of the
court. We have repeatedly stressed this in a long line of decisions. The only effect of non-compliance with this rule
is that it will deprive the complainant of a cause of action, which is a ground for a motion to dismiss. If not invoked
at the proper time, this ground is deemed waived and the court can then take cognizance of the case and try
it.149 (Emphasis supplied)
Hence, the doctrine of exhaustion of administrative remedies presupposes that the court has jurisdiction over the
subject matter of the complaint or petition. Otherwise, it can never have the power to take cognizance of the case
as contemplated by Soto. While both the court and the administrative agency have jurisdiction over the subject
matter, the general rule is that the courts, because of comity, practicality, and convenience, will not interfere with
the administrative process until the process comes to an end.150 This is because availing administrative remedies
entails lesser expenses and results in a speedier resolution of controversies. 151 On the other hand, since the court
and the administrative agency have concurrent jurisdiction, exceptions may be warranted by the
circumstances,152 and the court may choose to assume jurisdiction over the controversy. Hence, when jurisdiction
is exclusively granted to an administrative agency, the doctrine of exhaustion of administrative remedies does not
apply. Here, considering that the Civil Service Commission is granted exclusive jurisdiction over cases involving
personnel actions, the doctrine of primary administrative jurisdiction, not the doctrine of exhaustion of
administrative remedies, applies. The exceptions to the doctrine of exhaustion of administrative remedies likewise
do not apply because the Regional Trial Court has no jurisdiction to resolve the dispute in the first place. In order
for the exceptions to apply, the court to which the petition was prematurely filed should have jurisdiction;
otherwise, the orders of the court would be null and void for lack of jurisdiction. Decisions or orders rendered by
tribunals and agencies that do not have subject matter jurisdiction are null and void. 153 Hence, the exceptions to
the doctrine of exhaustion of administrative remedies should not be applicable since the Regional Trial Court, the
court to which the Petition for declaratory relief was filed, lacks subject matter jurisdiction, and any order or
decision rendered by it would be null and void.Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong
Pamilihang Bayan ng Muntinlupa, Inc. (KBMBPM) cited by private respondents finds no application here.
In KBMBPM, petitioners questioned the takeover by the Department of Agriculture of the management of
petitioner KBMBPM, a service cooperative organized by and composed of vendors of the New Muntinlupa Public
Market.154 There is no personnel action involved in KBMBPM. Hence, private respondents' reliance on the case is
misplaced. The ponencia held that "[w]hen respondents raised the issue of validity and constitutionality of
[Customs Personnel Order No. B-189-2013], the issue took the case beyond the scope of the [Civil Service
Commission's] jurisdiction because the matter is no longer limited to personnel action. Thus, the [Regional Trial
Court] did not abuse its discretion in taking cognizance of the action." 155 The constitutional issues alleged in the
Petition for declaratory relief do not suffice for the Regional Trial Court to assume jurisdiction. The Civil Service
Commission cannot be ousted from its jurisdiction "by the simple expediency of appending an allegedly
constitutional or legal dimension to an issue"156 that clearly involves a personnel action.157 In Corsiga v. Judge
Defensor,158 petitioner Eduardo Corsiga (Corsiga), "then Regional Irrigation Manager of the [National Irrigation
Administration], Region VI, issued Regional Office Memorandum (ROM) No. 52, reassigning private respondent
[Romeo Ortizo (Ortizo)] to [the] Aganan-Sta. Barbara River Irrigation System[.]"159 Ortizo filed before the "Regional
Trial Court of Iloilo City a complaint for prohibition and injunction, with prayer for issuance of [a] Temporary
Restraining Order and/or Writ of Preliminary Injunction."160 He argued that the transfer or assignment without his
consent is a violation of his constitutional right to security of tenure.161 Corsiga moved to dismiss the Petition for
lack of jurisdiction.162 This court ruled that the Regional Trial Court had no jurisdiction over Ortizo's
Complaint.163 Hence:
It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure in Rule XII, Section 6
of the same rules, that decisions of lower level officials be appealed to the agency head, then to the Civil Service
Commission. Decisions of the Civil Service Commission, in turn, may be elevated to the Court of Appeals. Under
this set up, the trial court does not have jurisdiction over personnel actions and, thus, committed an error in
taking jurisdiction over Civil Case No. 22462. The trial court should have dismissed the case on motion of petitioner
and let private respondent question RMO[sic] No. 52 before the NIA Administrator, and then the Civil Service
Commission. As held in Mantala vs. Salvador, cases involving personnel actions, reassignment included, affecting
civil service employees, are within the exclusive jurisdiction of the Civil Service Commission.164 (Emphasis supplied,
citations omitted)
Despite allegations of Regional Office Memorandum No. 52's constitutional infirmities, this court still upheld the
exclusive jurisdiction of the Civil Service Commission over cases involving personnel actions. In Department of
Agrarian Reform v. Trinidad Valley Realty & Development Corporation, 165 Trinidad Valley Realty & Development
Corporation and the other respondents (Trinidad Valley Realty & Development Corporation, et al.) are registered
owners of a parcel of land in Negros Oriental.166 The Department of Agrarian Reform placed a substantial portion
of the land under the coverage of the Comprehensive Agrarian Reform Law of 1988 or Republic Act No.
6657.167 Administrative Order No. 10, Series of 1989, Administrative Orders No. 12, Series of 1989, No. 9, Series of
1990, and No. 2, Series of 1996, Administrative Order No. 10, Series of 1990, Joint DAR-LRA Memorandum Circular
No. 20, Series of 1997, and Executive Order No. 405, among others, (collectively, Orders) were then
issued.168 Private respondents Trinidad Valley Realty & Development Corporation, et al. filed before the Regional
Trial Court a Petition for declaration of unconstitutionality through certiorari, prohibition and mandamus against
the Land Registration Authority, the Department of Agrarian Reform, and the beneficiaries under the
Comprehensive Agrarian Reform Program questioning the Orders. 169 This was later amended to an ordinary action
of annulment of land titles.170 In its Answer, the Department of Agrarian Reform asserted that "jurisdiction over all
agrarian reform matters is exclusively vested in the [Department of Agrarian Reform,]" 171 not in the regular courts.
This court ruled that the Regional Trial Court had no jurisdiction.172
The Court likewise ruled in the similar case of [Department of Agrarian Reform] v. Cuencathat "[a]ll controversies
on the implementation of the Comprehensive Agrarian Reform Program (CARP) fall under the jurisdiction of the
Department of Agrarian Reform (DAR), even though they raise questions that are also legal or constitutional in
nature." In said case, it was noted that the main thrust of the allegations in the Complaint was the propriety of the
Notice of Coverage and "not x x x the 'pure question of law' spawned by the alleged unconstitutionality of EO 405
— but x x x the annulment of the DAR's Notice of Coverage." The Court thus held that:
To be sure, the issuance of the Notice of Coverage constitutes the first necessary step towards the acquisition of
private land under the CARP. Plainly then, the propriety of the Notice relates to the implementation of the CARP,
which is under the quasi-judicial jurisdiction of the DAR. Thus, the DAR could not be ousted from its authority by
the simple expediency of appending an allegedly constitutional or legal dimension to an issue that is clearly
agrarian.
The legal recourse undertaken by Trinidad Valley Realty and Development Corporation, et al. is on all-fours with
the remedy adopted by the private respondents in Cuenca. In this case, Trinidad Valley Realty and Development
Corporation, et al. cloaked the issue as a constitutional question — assailing the constitutionality of administrative
issuances promulgated to implement the agrarian reform law — in order to annul the titles issued therein.
In Cuenca, private respondents assailed the constitutionality of EO 45 in order to annul the Notice of Coverage
issued therein. The only difference is that in Cuenca, private respondents directly filed with the RTC their complaint
to obtain the aforesaid reliefs while in this case, Trinidad Valley Realty and Development Corporation, et al. filed
their original petition for certiorari with the RTC after the protest of Trinidad Valley Realty and Development
Corporation against the coverage of its landholding under CARP was dismissed by the DAR Regional Director and
such dismissal was affirmed by DAR OIC Secretary Jose Mari B. Ponce. But in both cases, it is evident that the
constitutional angle was an attempt to exclude the cases from the ambit of the jurisdictional prescriptions under
RA 6657.173 (Emphasis supplied, citations omitted)
Invocations of issues of validity and constitutionality of Customs Personnel Order No. B-189-2013 will not suffice
for the courts to assume jurisdiction, if the order sought to be declared invalid is a personnel action. Since the
questioned order is a personnel action, the exclusive jurisdiction of the Civil Service Commission as the sole arbiter
of controversies relating to the civil service must be upheld. In any case, detail of government personnel to other
offices does not involve and violate the employees' security of tenure in the absence of any grave abuse of
discretion or improper motive or purpose.174 Hence, the Regional Trial Court has no jurisdiction over private
respondents' Petition for declaratory relief.

IV.

Private respondents rely on Commissioner of Customs, et al. v. Hypermix Feeds Corporation.175 They argue that
based on Hypermix, "[t]he determination of whether a specific rule or set of rules issued by an administrative
agency contravenes the law or the [Constitution is within the jurisdiction of the regular courts." 176 They add that
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."177 In Hypermix, Hypermix Feeds Corporation filed a Petition for declaratory relief before the
Regional Trial Court, with the Petition challenging the validity and constitutionality of Customs Memorandum
Order (CMO) 27-2003.178 CMO 27-2003 classified wheat according to (1) importer or consignee; (2) country of
origin; and (3) port of discharge, and imposed different tariff rates depending on such classification. 179 This court
concluded that "a petition for declaratory relief is the right remedy given the circumstances of the
case."180Hypermix cannot be applied because the circumstances in that case differ from the circumstances here
as Hypermix does not involve a personnel action.

V.

A petition for declaratory relief may prosper only if there is no breach or violation yet of the assailed government
regulation, and adequate relief is not available through other means or other forms of action or proceeding. Rule
63, Section 1 of the Rules of Court provides:
SECTION 1. Who may file petition. - Any person interested under a deed, will, contract or other written instrument,
or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental
regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to
determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder.
(Emphasis supplied)
In Republic v. Roque,181 this court enumerated the requisites for a petition for declaratory relief to prosper:

Case law states that the following are the requisites for an action for declaratory relief:

first, the subject matter of the controversy must be a deed, will, contract or other written instrument, statute,
executive order or regulation, or ordinance;

second, the terms of said documents and the validity thereof are doubtful and require judicial construction;

third, there must have been no breach of the documents in question;

fourth, there must be an actual justiciable controversy or the "ripening seeds" of one between persons whose
interests are adverse;

fifth, the issue must be ripe for judicial determination; and

sixth, adequate relief is not available through other means or other forms of action or proceeding. 182 (Emphasis in
the original, citation omitted)

The third and sixth requisites are absent. The Complaint before the lower court did not simply ask for a declaration
of a hypothetical breach. Adequate relief through the Civil Service Commission was also available. Executive Order
No. 140 was published on September 17, 2013. According to Section 9, Executive Order No. 140 shall take effect
immediately. On September 17, 2013, Bureau of Customs Commissioner Rozzano Rufmo B. Biazon issued Customs
Personnel Order No. B-189-2013. On September 30, 2013, private respondents filed their Petition for declaratory
relief. There was no denial by private respondents that they did not report for work upon Custom Personnel Order
No B-189-2013's effectivity.183 Private respondents Arnel C. Alcaraz, Ma. Lourdes V. Mangaoang, Romalino G.
Valdez, Lilibeth S. Sandag, Ma. Liza S. Torres, and Raymond P. Ventura only reported for work after the trial court's
denial of their application for a writ of preliminary injunction. 184 By not reporting for work upon the issuance of
Customs Personnel Order No. B-189-2013 on September 17, 2015, private respondents committed a breach of the
Order. Since they committed the breach prior to the filing of their Petition for declaratory relief, the petition is no
longer available. In Martelino, et al. v. National Home Mortgage Finance Corporation, et al.,185 petitioners
(Martelino, et al.) obtained housing loans from respondents National Home Mortgage Finance Corporation and
Home Development Mutual Fund.186 National Home Mortgage Finance Corporation and Home Development
Mutual Fund directly released the proceeds of the housing loans to the subdivision developer, Shelter Philippines,
Inc. (Shelter).187 Shelter did not complete the subdivision pursuant to its subdivision plan. 188 Martelino, et al. then
filed a Petition for declaratory relief to determine whether they can suspend payment to National Home Mortgage
Finance Corporation and Home Development Mutual Fund because of Shelter's failure to complete the subdivision
and whether interests and penalties should also be suspended. 189 This court found that at the time of the filing of
their Petition for declaratory relief, Martelino, et al. already suspended payment of their amortizations to National
Home Mortgage Finance Corporation and Home Development Mutual Fund. 190Hence, this court concluded that
the Regional Trial Court cannot assume jurisdiction over the Petition for declaratory relief. 191 Hence:
Indeed, under Section 1, Rule 63, a person must file a petition for declaratory relief before breach or violation of a
deed, will, contract, other written instrument, statute, executive order, regulation, ordinance or any other
governmental regulation. In this case, the petitioners had stated in their petition that respondents assessed them
interest and penalties on their outstanding loans, initiated foreclosure proceedings against petitioner Rafael
Martelino as evidenced by the notice of extra-judicial sale and threatened to foreclose the mortgages of the other
petitioners, all in disregard of their right to suspend payment to Shelter for its failure to complete the
subdivision. Said statements clearly mean one thing: petitioners had already suspended paying their amortization
payments. Unfortunately, their actual suspension of payments defeated the purpose of the action to secure an
authoritative declaration of their supposed right to suspend payment, for their guidance. Thus, the RTC could no
longer assume jurisdiction over the action for declaratory relief because its subject initially unspecified, now
identified as P.D. No. 957 and relied upon — correctly or otherwise — by petitioners, and assumed by the RTC to
be Rep. Act No. 8501, was breached before filing the action. As we said in Tambunting, Jr. v. Sumabat:
. . . The purpose of the action [for declaratory relief] is to secure an authoritative statement of the rights and
obligations of the parties under a statute, deed, contract, etc. for their guidance in its enforcement or compliance
and not to settle issues arising from its alleged breach. It may be entertained only before the breach or violation of
the statute, deed, contract, etc. to which it refers. Where the law or contract has already been contravened prior to
the filing of an action for declaratory relief, the court can no longer assume jurisdiction over the action.... Under
such circumstances, inasmuch as a cause of action has already accrued in favor of one or the other party, there is
nothing more for the court to explain or clarify short of a judgment or final order. 192 (Emphasis supplied, citations
omitted)
In Aquino v. Municipality of Malay, Aklan,193 petitioner Crisostomo B. Aquino (Aquino) is "the president and chief
executive officer of Boracay Island West Cove Management Philippines, Inc. (Boracay West Cove)." 194 The Office of
the Mayor of Malay, Aklan issued Executive Order No. 10, Series of 2011, ordering the closure and demolition of a
hotel owned by Boracay West Cove. 195 On June 10, 2011, Executive Order No. 10 was implemented partially. 196 To
stop the implementation of Executive Order No. 10, Aquino filed a Petition for certiorari with prayer for injunctive
relief before the Court of Appeals. 197The Court of Appeals dismissed the Petition on the ground that the correct
remedy was for Aquino "to file a petition for declaratory relief with the Regional Trial Court." 198 This court
disagreed with the Court of Appeals and stated:
An action for declaratory relief presupposes that there has been no actual breach of the instruments involved or of
the rights arising thereunder. Since the purpose of an action for declaratory relief is to secure an authoritative
statement of the rights and obligations of the parties under a statute, deed, or contract for their guidance in the
enforcement thereof, or compliance therewith, and not to settle issues arising from an alleged breach thereof, it
may be entertained before the breach or violation of the statute, deed or contract to which it refers. A petition for
declaratory relief gives a practical remedy for ending controversies that have not reached the state where another
relief is immediately available; and supplies the need for a form of action that will set controversies at rest before
they lead to a repudiation of obligations, an invasion of rights, and a commission of wrongs. In the case at bar, the
petition for declaratory relief became unavailable by [Executive Order No. 10's] enforcement and implementation.
The closure and demolition of the hotel rendered futile any possible guidelines that may be issued by the trial
court for carrying out the directives in the challenged [Executive Order No. 10]. Indubitably, the C A erred when it
ruled that declaratory relief is the proper remedy given such a situation. 199(Emphasis supplied, citation omitted)
In City of Lapu-Lapu v. Philippine Economic Zone Authority,200 the City of Lapu-Lapu and the Province of Bataan
demanded from the Philippine Economic Zone Authority payment of real property taxes. 201 The Philippine
Economic Zone Authority filed a Petition for declaratory relief before the Regional Trial Court, "praying that the
trial court declare it exempt from payment of real property taxes." 202 This court ruled that the Regional Trial Court
had no jurisdiction to decide Philippine Economic Zone Authority's Petition for declaratory relief. 203 This court
explained:
We rule that the [Philippine Economic Zone Authority] erred in availing itself of a petition for declaratory relief
against the City. The City had already issued demand letters and real property tax assessment against the
[Philippine Economic Zone Authority], in violation of the [Philippine Economic Zone Authority's] alleged tax-exempt
status under its charter.The Special Economic Zone Act of 1995, the subject matter of [Philippine Economic Zone
Authority's] petition for declaratory relief, had already been breached. The trial court, therefore, had no
jurisdiction over the petition for declaratory relief. There are several aspects of jurisdiction. Jurisdiction over the
subject matter is "the power to hear and determine cases of the general class to which the proceedings in question
belong." It is conferred by law, which may either be the Constitution or a statute. Jurisdiction over the subject
matter means "the nature of the cause of action and the relief sought." Thus, the cause of action and character of
the relief sought as alleged in the complaint are examined to determine whether a court had jurisdiction over the
subject matter. Any decision rendered by a court without jurisdiction over the subject matter of the action is
void.204(Emphasis supplied, citations omitted)
Further, Tambunting, Jr. v. Spouses Sumabat205 declared that when a court assumed jurisdiction over a Petition for
declaratory relief when there was already a breach of the subject instrument or government regulation, the orders
made by that court would be null and void for want of jurisdiction.206 Hence:
In other words, a court has no more jurisdiction over an action for declaratory relief if its subject, i.e., the statute,
deed, contract, etc., has already been infringed or transgressed before the institution of the action. Under such
circumstances, inasmuch as a cause of action has already accrued in favor of one or the other party, there is
nothing more for the court to explain or clarify short of a judgment or final order. Here, an infraction of the
mortgage terms had already taken place before the filing of Civil Case No. C-7496. Thus, the CFI lacked jurisdiction
when it took cognizance of the case in 1979. And in the absence of jurisdiction, its decision was void and without
legal effect. As this Court held in Arevalo v. Benedicto:
Furthermore, the want of jurisdiction by a court over the subject-matter renders its judgment void and a mere
nullity, and considering that a void judgment is in legal effect no judgment, by which no rights are divested, from
which no rights can be obtained, which neither binds nor bars any one, and under which all acts performed and all
claims flowing out of are void, and considering further, that the decision, for want of jurisdiction of the court, is not
a decision in contemplation of law, and, hence, can never become executory, it follows that such a void judgment
cannot constitute a bar to another case by reason of res judicata.207 (Emphasis supplied, citations omitted)
This was reiterated in Malana, et al. v. Tappa, et al.208 where this court declared:
Where the law or contract has already been contravened prior to the filing of an action for declaratory relief, the
courts can no longer assume jurisdiction over the action. In other words, a court has no more jurisdiction over an
action for declaratory relief if its subject has already been infringed or transgressed before the institution of the
action.209
Private respondents argue that Customs Personnel Order No. B-189-2013 is void, producing no effect. Hence,
"there is actually no breach, real or imaginary, to speak of in this case."210 Subscribing to petitioners' theory will
render ineffective the phrase "before breach or violation thereof found in Section 1 of Rule 63 of the Rules of
Court when a petitioner questions the validity of a written instrument or governmental regulation. By arguing that
the instrument or regulation questioned is void at the onset, a petitioner may file any time a petition for
declaratory relief with no regard to whether he or she violated the "void" instrument or regulation. Private
respondents' belated compliance with Customs Personnel Order No. B-189-2013 cannot cure the defect of want of
jurisdiction. In Gomez v. Palomar, etc., et al.,211 this court declared:
The prime specification of an action for declaratory relief is that it must be brought "before breach or violation" of
the statute has been committed. Rule 64, section 1 so provides. Section 6 of the same rule, which allows the court
to treat an action for declaratory relief as an ordinary action, applies only if the breach or violation occurs after the
filing of the action but before the termination thereof. Hence, if, as the trial court itself admitted, there had been a
breach of the statute before the filing of this action, then indeed the remedy of declaratory relief cannot be availed
of much less can the suit be converted into an ordinary action.212 (Emphasis supplied, citation omitted)
Considering that there was already a breach of Customs Personnel Order No. B-189-2013 when private
respondents filed their Petition for declaratory relief, the Regional Trial Court can no longer act on the Petition for
want of jurisdiction. For a Petition for declaratory relief to prosper, there should be no other adequate relief
available to petitioners.213 "If adequate relief is available through another form of action or proceeding, the other
action must be preferred over an action for declaratory relief." 214 In Ferrer, Jr., et al. v. Mayor Roco, Jr., et
al.,215 this court affirmed the dismissal of a Petition for declaratory relief where the doctrine of primary
administrative jurisdiction applied because it meant that there was another adequate remedy available to
petitioners.216 Here, private respondents' correct remedy was to file a Complaint or Petition before the Civil Service
Commission to assail their detail to the Customs Policy Research Office. Since they have another adequate remedy
available to them, their Petition for declaratory relief must fail. All told, a Petition for declaratory relief was not an
available remedy for private respondents. It was, therefore, error for the Regional Trial Court to assume
jurisdiction over private respondents' Petition for declaratory relief. The Orders of the Regional Trial Court dated
October 1, 2013, October 4, 2013, and October 21, 2013 are declared void for want of jurisdiction. All other Orders
of the Regional Trial Court pursuant to private respondents' Petition for declaratory relief are also void for lack of
jurisdiction. The Regional Trial Court should be directed to dismiss private respondents' Petition for declaratory
relief.

VI.

Customs Personnel Order No. B-189-2013 provides that it "shall be effective immediately and valid until sooner
revoked."217 Civil Service Commission Resolution No. 021181 entitled Policies on Detail and dated September 13,
2002 "govern[s] the detail of employees in all agencies of the government." 218 Section 2 of Policies on Detail
provides:
Section 2. Duration of the Detail - the detail shall be allowed only for a maximum period of one year. Details
beyond one year may be allowed provided it is with the consent of the detailed employee. The extension or
renewal of the period of the detail shall be within the authority of the mother agency. If the employee believes
that there is no justification for the detail, he/she may appeal his/her case to the proper Civil Service Commission
Regional Office. Pending appeal, the detail shall be executory unless otherwise ordered by said regional office.
Decision of said regional office may be further appealed to the Commission en banc.219 (Emphasis supplied)
Customs Personnel Order No. B-189-2013 's provision stating that "[t]his Order shall be effective immediately and
valid until sooner revoked" appears contrary to Section 2 of Resolution No. 02-1181. Pursuant, however, to Section
2 of Civil Service Commission Resolution No. 02-1181, Customs Personnel Order No. B-189-2013 should be read as
valid only for a period of one (1) year. Consistency in executive issuances is of utmost importance. 220 As much as
possible, it is the duty of the courts to harmonize and reconcile them. 221 In Philippine International Trading
Corporation v. Presiding Judge Angeles,222 this court ruled:
Thus, there is no real inconsistency between LOI 444 and EO 133. There is, admittedly, a rearranging of the
administrative functions among the administrative bodies affected by the edict, but not an abolition of executive
power. Consistency in statutes as in executive issuances, is of prime importance, and, in the absence of a showing
to the contrary, all laws are presumed to be consistent with each other. Where it is possible to do so, it is the duty
of courts, in the construction of statutes, to harmonize and reconcile them, and to adopt a construction of a
statutory provision which harmonizes and reconciles it with other statutory provisions. The fact that a later
enactment may relate to the same subject matter as that of an earlier statute is not of itself sufficient to cause an
implied repeal of the latter, since the law may be cumulative or a continuation of the old one.223 (Emphasis
supplied, citations omitted)
Similarly, this court should also uphold as much as possible the validity of Customs Personnel Order No. B-189-
2013 as a valid exercise of executive power to conform to the Policies on Detail. "Every inten[t] of the law should
lean towards its validity, not its invalidity."224 Hence, the duration of Customs Personnel Order No. B-189-2013,
being independent and severable from the order of detail itself, should be the only provision declared void. Since
there is no record that private respondents consented to be detailed for more than one (1) year from September
17, 2013, Customs Personnel Order No. B-189-2013, while effective for the duration of one (1) year from
enactment, already ceased to take effect. The ponencia ruled that Customs Personnel Order No. B-189-2013
violates Section 3 of Executive Order No. 140 because at the time of its issuance, the Customs Policy Research
Office had no organic personnel yet.225cralawred The ponencia also ruled that the Department of Finance
Secretary had not yet issued rules and regulations for the Customs Policy Research Office. 226 There is nothing in
Executive Order No. 140 that requires that the organic personnel of the Customs Policy Research Office must first
be organized and that rules must first be issued by the Department of Finance Secretary before the Bureau of
Customs can start forming its team that will augment and reinforce the organic personnel of the Customs Policy
Research Office. Courts should avoid as much as possible any construction invalidating administrative
issuances.227 Unless there is a clear violation of Executive Order No. 140, Customs Personnel Order No. B-189-2013
should remain valid.

ACCORDINGLY, the Petition should be GRANTED. Private respondents' Petition for declaratory relief filed before
the Regional Trial Court should be DISMISSED for lack of jurisdiction.

G.R. No. 182133, June 23, 2015

UNITED OVERSEAS BANK OF THE PHILIPPINES, INC., Petitioner, v. THE BOARD OF COMMISSIONERS-HLURB, J.O.S.
MANAGING BUILDERS, INC., AND EDUPLAN PHILS., INC., Respondents.

DECISION

PERALTA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the
Decision1 and Resolution2 of the Court of Appeals (CA), dated February 27, 2006 and March 5, 2008, respectively,
in CAG.R.SP No. 86401.

The antecedents are as follows:LawlibraryofCRAlaw

Respondent J.O.S. Managing Builders, Inc. (JOS Managing Builders) is the registered owner and developer of the
condominium project Aurora Milestone Tower. On December 16, 1997, JOS Managing Builders and respondent
EDUPLAN Philippines, Inc. (EDUPLAN) entered into a Contract to Sell covering Condominium Unit E, 10 th Floor of
the Aurora Milestone Tower with an area of 149.72 square meters, more or less. In August 1998, EDUPLAN
effected full payment, and in December 1998, JOS Managing Builders and EDUPLAN executed a Deed of Absolute
Sale over the condominium unit. Notwithstanding the execution of the deed of sale in favor of EDUPLAN, JOS
Managing Builders failed to cause the issuance of a Condominium Certificate of Title over the condominium unit in
the name of EDUPLAN. EDUPLAN learned that the lots on which the condominium building project Aurora
Milestone Tower was erected had been mortgaged by JOS Managing Builders to petitioner United Overseas Bank
of the Philippines (United Overseas Bank) without the prior written approval of the Housing and Land Use
Regulatory Board (HLURB). Due to the inability of JOS Managing Builders to deliver the condominium certificate of
title covering the unit purchased by EDUPLAN, the latter filed a complaint for specific performance and damages
against JOS Managing Builders and United Overseas Bank before the HLURB praying that: (a) the mortgage
between JOS Managing Builders and United Overseas Bank be declared null and void; (b) JOS Managing Builders
and United Overseas Bank be compelled to cause the issuance and release of the Condominium Certificate of Title;
and (c) JOS Managing Builders be ordered to provide emergency power facilities, to refund the monthly telephone
carrier charges, and to permanently cease and desist from further collecting such charges.

In its defense, JOS Managing Builders alleged that it could not issue an individual Condominium Certificate of Title
in favor of EDUPLAN, because petitioner United Overseas Bank has custody of the Transfer Certificates of Title
covering the condominium building.

United Overseas Bank, on the other hand, alleged that JOS Managing Builders is the owner of several parcels of
land covered by Transfer Certificate of Title (TCT) Nos. N-146444, N-146445 and N-143601. On April 3, 1997, JOS
Managing Builders executed in favor of United Overseas Bank a Real Estate Mortgage 3 over the said parcels of land
and the improvements existing or to be erected thereon to secure the Two Hundred Million Peso
(PhP200,000,000.00)4 loan it acquired from the bank. The subject condominium building project Aurora Milestone
Tower, which is situated in the said parcels of land, are part of the properties mortgaged to United Overseas Bank.
JOS Managing Builders defaulted in the payment of its loan obligations to United Overseas Bank. Hence, United
Overseas Bank foreclosed the mortgage constituted over properties of JOS Managing Builders and the subject
properties were sold by public auction on March 22, 1999 wherein United Overseas Bank was declared as the
highest bidder. Subsequently, a certificate of sale was issued in favor of United Overseas Bank corresponding to
the foreclosed properties, which was registered with the Register of Deeds of Quezon City on April 27, 1999.

On August 15, 2001, the HLURB Arbiter ruled,5 in favor of EDUPLAN and declared the mortgage executed between
JOS Managing Builders and United Overseas Bank as well as the foreclosure proceedings null and void, pointing out
that the mortgage was executed without the approval of the HLURB as required under Section 18 of Presidential
Decree (P.D.) No. 957.6 The Arbiter held that that since EDUPLAN has paid the full purchase price of the
condominium unit, JOS Managing Builders and United Overseas Bank should cause the release from encumbrance
of the mother titles to the condominium building project, and issue the corresponding condominium certificate of
title in favor of EDUPLAN. Further, JOS Managing Builders should provide EDUPLAN with emergency power
facilities and refund it with the monthly telephone carrier charges it has been collecting since September 1999, and
permanently cease and desist from further imposing and collecting such fees. Moreover, JOS Managing Builders
was directed to pay EDUPLAN damages, attorney's fees and costs of suit. The dispositive portion of the decision
reads:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary

Wherefore, the foregoing premises considered and as prayed for, judgment is hereby rendered in favor of the
Complainant and against the Respondents as follows:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
1. Declaring the mortgage executed by Respondent J.O.S. Managing Builders in favor of Respondent United
Overseas Bank (Westmont) as null and void, including the foreclosure of the mortgage, for being in violation of
Section 18 of P.D. 957;

2. Ordering Respondents to cause the release from the encumbrances of the "mother titles" to the Condominium
Building Project and, issuance of the individual Condominium Certificate of Title of Complainant to its
Condominium Unit, free from any and all liens and encumbrances;

3. Ordering Respondent J.O.S. Managing Builders to provide the Complainant with emergency power facilities,
strictly as represented in its sales brochures;

4. Ordering Respondent J.O.S. Managing Builders to refund to Complainant the monthly telephone carrier charges
it has been collecting since September 1, 1999 and permanently cease and desist from further imposing and
collecting said charges;
5. Ordering Respondent J.O.S. to pay the complainant P100,000.00 by way of temperate damages, P50,000.00 by
way of exemplary damages, P40,000.00 as and by way of Attorney's Fees; and the costs of suit.

6. Ordering Respondent J.O.S. Managing Builders to pay Respondent United Overseas Bank (Westmont) the loan
release value of the subject condominium unit.
United Overseas Bank then filed a petition for review with the HLURB. On August 20, 2004, the HLURB Board of
Commissioners affirmed the Arbiter's decision, but deleted the award of emergency power facilities and refund of
the monthly telephone carrier charges. Hence, United Overseas Bank filed a petition for review under Rule 43
before the CA.7redarclaw

On February 27, 2006, the CA dismissed the petition.8 A motion for reconsideration was filed, but it was denied for
lack of merit.9 The CA held that United Overseas Bank did not exhaust the administrative remedies available to it
due to its failure to appeal the decision of the HLURB Board of Commissioners to the Office of the President before
going to the CA.

Hence, the petition assigning the lone error:LawlibraryofCRAlaw

ChanRoblesVirtualawlibrary
THE COURT OF APPEALS ERRED IN REFUSING TO APPLY THE EXCEPTION TO THE DOCTRINE OF EXHAUSTION OF
ADMINISTRATIVE REMEDIES.10
Petitioner United Overseas Bank argues that the CA erred when it dismissed the petition due to its failure to
exhaust administrative remedies. It alleges that the question on whether the HLURB is correct in declaring null and
void the entire mortgage constituted by JOS Managing Builders in favor of United Overseas Bank, as well as the
foreclosure of the entire mortgage, is a legal question which is an exception to the rule on exhaustion of
administrative remedies.

The petition is meritorious.

The doctrine of exhaustion of administrative remedies is a cornerstone of our judicial system. The thrust of the
rule is that courts must allow administrative agencies to carry out their functions and discharge their
responsibilities within the specialized areas of their respective competence.11 It has been held, however, that the
doctrine of exhaustion of administrative remedies and the doctrine of primary jurisdiction are not iron-clad rules.
In the case of Republic v. Lacap,12 the Court enumerated the numerous exceptions to these rules, namely: (a)
where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged administrative act
is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that
will irretrievably prejudice the complainant; (d) where the amount involved is relatively so small as to make the
rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately have to be
decided by the courts of justice; (f) where judicial intervention is urgent; (g) where the application of the doctrine
may cause great and irreparable damage; (h) where the controverted acts violate due process; (i) where the issue
of non-exhaustion of administrative remedies has been rendered moot; (j) where there is no other plain, speedy
and adequate remedy; (k) where strong public interest is involved; and (1) in quo warrantoproceedings.13redarclaw

The situation in paragraph (e) of the foregoing enumeration obtains in this case.

The issue on whether non-compliance with the clearance requirement with the HLURB would result to the
nullification of the entire mortgage contract or only a part of it is purely legal which will have to be decided
ultimately by a regular court of law. It does not involve an examination of the probative value of the evidence
presented by the parties. There is a question of law when the doubt or difference arises as to what the law is on a
certain state of facts, and not as to the truth or the falsehood of alleged facts. Said question at best could be
resolved only tentatively by the administrative authorities. The final decision on the matter rests not with them but
with the courts of justice. Exhaustion of administrative remedies does not apply, because nothing of an
administrative nature is to be or can be done. The issue does not require technical knowledge and experience, but
one that would involve the interpretation and application of law.14 There is, thus, no need to exhaust
administrative remedies, under the premises.

The Court will now proceed to the legal issue on hand.

Petitioner United Overseas Bank alleges that the HLURB erred in declaring null and void the entire mortgage
constituted by JOS Managing Builders in its favor, as EDUPLAN does not claim ownership over all the properties
mortgaged by JOS Managing Builders in favor of United Overseas Bank, but only over a single condominium
unit, i.e., Unit E, 10th Floor of the Aurora Milestone Tower.

We agree with petitioner.

The HLURB erred in declaring null and void the entire mortgage executed between JOS Managing Builders and
United Overseas Bank.

At the onset, it is worthy to note that jurisprudence have varying conclusions of the issue at hand. In Far East Bank
& Trust Co. v Marquez,15 the Court sustained the HLURB when it declared the mortgage entered into between the
subdivision developer and the bank as unenforceable against the lot buyer for failure of the developer to obtain
the prior written approval of the HLURB. However, we were categorical that the HLURB acted beyond bounds
when it nullified the mortgage covering the entire parcel of land, of which the lot subject of the buyer's complaint
is merely a part of.

In Far East Bank, the Court held that:LawlibraryofCRAlaw

ChanRoblesVirtualawlibrary
Acts executed against the provisions of mandatory or prohibitory laws shall be void. Hence, the mortgage over the
lot is null and void insofar as private respondent is concerned.

The remedy granted by the HLURB and sustained by the Office of the President is proper only insofar as it refers to
the lot of respondent. In short, the mortgage contract is void as against him. Since there is no law stating the
specifics of what should be done under the circumstances, that which is in accord with equity, should be ordered.
The remedy granted by the HLURB in the first and the second paragraphs of the dispositive portion of its Decision
insofar as it referred to respondent's lot is in accord with equity.

The HLURB, however, went overboard in its disposition in paragraphs 3 and 4, which pertained not only to the lot
but to the entire parcel of land mortgaged. Such ruling was improper. The subject of this litigation is limited only to
the lot that respondent is buying, not to the entire parcel of land. He has no personality or standing to bring suit on
the whole property, as he has actionable interest over the subject lot only. (Citations omitted and underscoring
ours)16
In Metropolitan Bank and Trust Co., Inc. v. SLGT Holdings, Inc.,17 however, the Court nullified the entire mortgage
contract executed between the subdivision developer and the bank albeit the fact that only two units or lot
buyer/s filed a case for declaration of nullity of mortgage. In the said case, the entire mortgage contract was
nullified on the basis of the principle of indivisibility of mortgage as provided in Article 2089 18 of the New Civil
Code.

This notwithstanding, in the fairly recent case of Philippine National Bank v. Lim,19 the Court reverted to our
previous ruling in Far East Bank that a unit buyer has no standing to seek for the complete nullification of the
entire mortgage, because he has an actionable interest only over the unit he has bought. Hence, in the said case,
the mortgage was nullified only insofar as it affected the unit buyer.

We find the recent view espoused in Philippine National Bank to be in accord with law and equity. While a
mortgage may be nullified if it was in violation of Section 18 of P.D. No. 957, such nullification applies only to the
interest of the complaining buyer. It cannot extend to the entire mortgage. A buyer of a particular unit or lot has
no standing to ask for the nullification of the entire mortgage.
Since EDUPLAN has an actionable interest only over Unit E, 10th Floor, Aurora Milestone Tower, it is but logical to
conclude that it has no standing to seek for the complete nullification of the subject mortgage and the HLURB was
incorrect when it voided the whole mortgage between JOS Managing Builders and United Overseas Bank.

Considering that EDUPLAN had already paid the full purchase price of the subject unit, the latter is entitled to the
transfer of ownership of the subject property in its favor. This right is provided for in Section 25 of P.D. No. 957, 50
wit:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
Issuance of Title. The owner or development shall deliver the title of the lot or unit to the buyer upon full payment
of the lot or unit, x x x.
Verily, JOS Managing Builders has the obligation to cause the delivery of the Title to the subject condominium unit
in favor of EDUPALN.

Nevertheless, despite the fact that the mortgage constituted between JOS Managing Builders and United Overseas
Bank cannot bind EDUPLAN, because of the non-observance of the provision of P.D. No. 957 by JOS managing
Builders, the mortgage between the former and United Overseas Bank is still valid.

In the present case, it is undisputed that JOS Managing Builders mortgaged several parcels of land, including all the
buildings and improvements therein covered by TCT Nos. N-146444, N-146445 and N-143601 to United Overseas
Bank without prior clearance from the HLURB. The said omission clearly violates Section 18 of P.D. No. 957 (The
Subdivision and condominium Buyers' Protective Decree), which provides as follows:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
Section 18. Mortgages. - No mortgage on any unit or lot shall be made by the owner or developer without prior
written approval of the [HLURB]. xxx (Word in bracket added)
It should be noted, however, that the failure of JOS Managing Builders to secure prior approval of the mortgage
from the HLURB and United Overseas Bank's failure to inquire on the status of the property offered for mortgage
placed the condominium developer and the creditor Bank in pari delicto.20 Hence, they cannot ask the courts for
relief for such parties should be left where they are found for being equally at fault.

More importantly, it should be understood that the prior approval requirement is intended to protect buyers of
condominium units from fraudulent manipulations perpetrated by unscrupulous condominium sellers and
operators, such as their failure to deliver titles to the buyer or titles free from lien and encumbrances.21 This is
pursuant to the intent of P.D. No. 957 to protect hapless buyers from the unjust practices of unscrupulous
developers which may constitute mortgages over condominium projects sans the knowledge of the former and the
consent of the HLURB.22redarclaw

Thus, failure to secure the HLURB'S prior written approval as required by P.D. No. 957 will not annul the entire
mortgage between the condominium developer and the creditor bank, otherwise the protection intended for
condominium buyers will inadvertently be extended to the condominium developer even though, by failing to
secure the government's prior approval, it is the party at fault.

To rule otherwise would certainly affect the stability of large-scale mortgages, which is prevalent in the real estate
industry. To be sure, mortgagee banks would be indubitably placed at risk if condominium developers are
empowered to unilaterally invalidate mortgage contracts based on their mere failure to secure prior written
approval of the mortgage by the HLURB, which could be easily caused by inadvertence or by deliberate intent.

From all the foregoing, the HLURB erred when it declared the entire mortgage constituted by JOS Managing
Builders, Inc. in favor of United Overseas Bank null and void based solely on the complaint of EDUPLAN which was
only claiming ownership over a single condominium unit of Aurora Milestone Tower. Accordingly, the mortgage
executed between JOS Managing Builders and United Overseas Bank is valid.

WHEREFORE, the petition is GRANTED. The Decision and Resolution of the Court of Appeals, dated February 27,
2006 and March 5, 2008, respectively, in CA-G.R. SP No. 86401, are REVERSED and SET ASIDE. The Decision of the
HLURB, dated August 20, 2004, is AFFIRMED with MODIFICATION. The mortgage executed and the succeeding
foreclosure proceedings between respondent J.O.S. Managing Builders, Inc. and petitioner United Overseas Bank
of the Philippines, Inc., with respect to respondent EDUPLAN Philippines, Inc.'s unit E., 10TH Floor, Aurora Milestone
Tower, is declared null and void.

SO ORDERED.

A.M. No. MTJ-12-1813

OFFICE OF THE COURT ADMINISTRATOR, Complainant

vs
JUDGE ELIZA B. YU, METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY, Respondent

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

A.M. N0.12-1-09-MeTC

RE: LETTER DATED 21 JULY 2011 OF EXECUTIVE JUDGE BIBIANO G. COLASITO AND THREE (3) OTHER JUDGES OF
THE METROPOLITAN TRIAL COURT, PASAY CITY, FOR THE SUSPENSION OR DETAIL TO ANOTHER STATION OF
JUDGE ELIZA B. YU, BRANCH 47, SAME COURT.

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

A.M. NO. MTJ-13-1836

(Formerly A.M. No. 11-11-115- MeTC)

RE: LETTER DATED MAY 2, 2011 OF HON. ELIZA B. YU, PRESIDING JUDGE, METROPOLITAN TRIAL COURT, BRANCH
47, PASAY CITY.

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

A.M. NO. MTJ-12-1815

(Formerly OCA IPI No. 11-2401- MTJ)

LEILANI A. TEJERO-LOPEZ, Complainant,

vs.
JUDGE ELIZA B. YU, BRANCH 47, METROPOLITAN TRIAL COURT, PASA Y CITY, Respondent.

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

OCA IPI NO. 11-2398-MTJ

JOSEFINA G. LABID, Complainant,

vs.
JUDGE ELIZA B. YU, METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY, Respondent.
x-----------------------x

OCA IPI NO. 11-2399-MTJ

AMOR V. ABAD, FROILAN ROBERT L. TOMAS, ROMER H. A VILES, EMELINA J. SAN MIGUEL, NORMAN D.S.
GARCIA, MAXIMA SA YO and DENNIS ECHEGOYEN, Complainants,
vs.
HON. ELIZA B. YU, PRESIDING JUDGE, METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY,Respondent.

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

OCA IPI NO. 11-2378-MTJ

EXECUTIVE JUDGE BIBIANO G. COLAS ITO, VICE EXECUTIVE JUDGE BONIFACIO S. PASCUA, JUDGE RESTITUTO V.
MANGALINDAN, JR., JUDGE CATHERINE P. MANODON, MIGUEL C. INFANTE (CLERK OF COURT IV, OCC-METC),
RACQUEL C. DIANO (CLERK OF COURT Ill, METC, BRANCH 45), EMMA ANNIE D. ARAFILES (ASSISTANT CLERK OF
COURT, OCC-METC), PEDRO C. DOCTOLERO, JR. (CLERK OF COURT Ill, METC, BRANCH 44), LYDIA T. CASAS (CLERK
OF COURT III, METC, BRANCH 46), ELEANOR N. BA YOG (LEGAL RESEARCHER,METC,BRANCH 45), LEILANIE A.
TEJERO (LEGAL RESEARCHER, METC, BRANCH 46), ANA MARIA V. FRANCISCO (CASHIER I, OCCMETC), SOLEDAD J.
BASSIG (CLERK III, OCC-METC), MARISSA MASHHOOR RASTGOOY (RECORDS OFFICER, OCC-METC), MARIE LUZ M.
OBIDA (ADMINISTRATIVE OFFICER, OCC-METC), VIRGINIA D. GALANG (RECORDS OFFICER I, OCC-METC),
AUXENCIO JOSEPH CLEMENTE (CLERK OF COURT III, METC, BRANCH 48), EVELYN P. DEPALOBOS (LEGAL
RESEARCHER, METC, BRANCH 44), MA. CECILIA GERTRUDES R. SALVADOR (LEGAL RESEARCHER, METC, BRANCH
48), JOSEPH B. PAMATMAT (CLERK Ill, OCCMETC), ZENAIDA N. GERONIMO (COURT STENOGRAPHER, OCC-METC),
BENJIE V. ORE (PROCESS SERVER, OCC-METC), FORTUNATO E. DIEZMO (PROCESS SERVER, OCCMETC), NO MER B.
VILLANUEVA (UTILITY WORKER, OCC-METC), ELSA D. GARNET (CLERK Ill, OCCMETC), FATIMA V. ROJAS (CLERK III,
OCC-METC), EDUARDO E. EBREO (SHERIFF III, METC, BRANCH 45), RONALYN T. ALMARVEZ (COURT
STENOGRAPHER II, METC, BRANCH 45), MA. VICTORIA C. OCAMPO (COURT STENOGRAPHER II, METC, BRANCH
45), ELIZABETH LIPURA (CLERK III METC, BRANCH 45), MARY ANN J. CAYANAN (CLERK III, METC, BRANCH 45),
MANOLO MANUEL E. GARCIA (PROCESS SERVER, METC, BRANCH 45), EDWINA A. JUROK (UTILITY WORKER, OCC-
METC), ARMINA B. ALMONTE (CLERK III, OCC-METC), ELIZABETH G. VILLANUEVA (RECORDS OFFICER, METC,
BRANCH 44), ERWIN RUSS B. RAGASA (SHERIFF III, METC, BRANCH 44), BIEN T. CAMBA (COURT STENOGRAPHER
II, METC, BRANCH 44), MARLON M. SULIGAN (COURT STENOGRAPHER II, METC, BRANCH 44), CHANDA B.
TOLENTINO (COURT STENOGRAPHER II, METC, BRANCH 44), FERDINAND R. MOLINA (COURT INTERPRETER,
METC, BRANCH 44), PETRONILO C. PRIMACIO, JR. (PROCESS SERVER, METC, BRANCH 45), EDWARD ERIC SANTOS
(UTILITY WORKER, METC, BRANCH 45), EMILIO P. DOMINE (UTILITY WORKER, METC, BRANCH 45), ARNOLD P.
OBIAL (UTILITY WORKER, METC, BRANCH 44), RICARDO E. LAMPITOC (SHERIFF III, METC, BRANCH 46), JEROME
H. A VILES (COURT STENOGRAPHER II, METC, BRANCH 46), ANA LEA M. ESTACIO (COURT STENOGRAPHER II,
METC, BRANCH 46), LANIE F. AGUINALDO (CLERK III, METC, BRANCH 44), JASMINE L. LINDAIN (CLERK III, METC,
BRANCH 44), RONALDO S. QUIJANO (PROCESS SERVER, METC, BRANCH 44), DOMINGO H. HOCOSOL (UTILITY
WORKER, METC, BRANCH 48), EDWIN P. UBANA (SHERIFF III, METC, BRANCH 48), MARVIN 0. BALICUATRO
(COURT STENOGRAPHER II, METC, BRANCH 48), MA. LUZ D. DIONISIO (COURT STENOGRAPHER II, METC,
BRANCH 48), MARIBEL A. MOLINA (COURT STENOGRAPHER II, METC, BRANCH 48), CRISTINA E. LAMPITOC
(COURT STENOGRAPHER II, METC, BRANCH 46), MELANIE DC. BEGASA (CLERK III, METC, BRANCH 46), EV
ANGELINE M. CHING (CLERK III, METC, BRANCH 46), LA WREN CE D. PEREZ (PROCESS SERVER, METC, BRANCH
46), EDMUNDO VERGARA (UTILITY WORKER, METC, BRANCH 46), AMOR V. ABAD (COURT INTERPRETER, METC,
BRANCH 47), ROMER H. A VILES (COURT STENOGRAPHER II, METC, BRANCH 47), FROILAN ROBERT L. TOMAS
(COURT STENOGRAPHER II, METC, BRANCH 47), MAXIMA C. SAYO (PROCESS SERVER, BRANCH 47), SEVILLA B.
DEL CASTILLO (COURT INTERPRETER, METC, BRANCH 48), AIDA JOSEFINA IGNACIO (CLERK III, METC, BRANCH
48), BENIGNO A. MARZAN (CLERK III, METC, BRANCH 48), KARLA MAE R. PACUNAYEN (CLERK III, METC, BRANCH
48), IGNACIO M. GONZALES (PROCESS SERVER, METC, BRANCH 48), EMELINA J. SAN MIGUEL (RECORDS OFFICER,
OCC, DETAILED AT BRANCH 47), DENNIS M. ECHEGOYEN (SHERIFF III, OCC-METC), NORMAN GARCIA (SHERIFF III,
METC, BRANCH 47), NOEL G. LABID (UTILITY WORKER I, BRANCH 47), Complainant,
vs.
HON. ELIZA B. YU, PRESIDING JUDGE, METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY,Respondent.

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

OCA IPI NO. 12-2456-MTJ

JUDGE BIBIANO G. COLASITO, JUDGE BONIFACIO S. PASCUA, JUDGE RESTITUTO V. MANGALINDAN, JR. and
CLERK OF COURT MIGUEL C. INFANTE, Complainants,
vs.
HON. ELIZA B. YU, PRESIDING JUDGE, METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY,Respondent.

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

A.M. NO. MTJ-13-1821

JUDGE EMILY L. SAN GASPAR- GITO, METROPOLITAN TRIAL COURT, BRANCH 20, MANILA, Complainant,
vs.
JUDGE ELIZA B. YU, METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY, Respondent.

RESOLUTION

PER CURIAM:

We hereby consider and resolve respondent Eliza B. Yu's Motion for Reconsideration with Explanation for the Show
Cause Order filed vis-a-vis the decision promulgated on November 22, 2016 disposing against her as follows:

WHEREFORE, the Court FINDS and PRONOUNCES respondent JUDGE ELIZA B. YU GUILTY of GROSS
INSUBORDINATION; GROSS IGNORANCE OF THE LAW; GROSS MISCONDUCT; GRAVE ABUSE OF AUTHORITY;
OPPRESSION; and CONDUCT UNBECOMING OF A JUDICIAL OFFICIAL; and, ACCORDINGLY, DISMISSES her from the
service EFFECTIVE IMMEDIATELY, with FORFEITURE OF ALL HER BENEFITS, except accrued leave credits, and
further DISQUALIFIES her from reinstatement or appointment to any public office or employment, including to one
in any government-owned or government-controlled corporations.

Respondent JUDGE ELIZA B. YU is directed to show cause in writing within ten (10) days from notice why she
should not be disbarred for violation of the Lawyer's Oath, the Code of Professional Responsibility, and the Canons
of Professional Ethics as outlined herein.

Let a copy of this decision be furnished to the Office of the Court Administrator for its information and guidance.

SO ORDERED.1

In her motion, the respondent repeatedly denies committing all the administrative offenses for which she was held
guilty, and insists on the absence of proof to support the findings against her. She pleads that the Court
reconsiders based on the following:

1. Noncompliance with A.O. No. 19-2011

The complaint against her was premature because of the pendency of her protest against night court duty. A.O.
No. 19-2011 did not carry a penal provision, and was only directory because of the use of the permissive
word may. In addition to A.O. No. 19-2011 being noncompliant with the requirements of a valid administrative
order, the requirement of night court duty violated Section 5, Rule XVII of the Omnibus Rules Implementing Book V
of the Administrative Code,2 which limited the working hours for government officials and employees. It was also
not illegal to write to the Secretary of the Department of Tourism (DOT) considering that he was the requesting
authority regarding the rendering of the night court duty. She did not publicly broadcast her disobedience to A.O.
No. 19-2011 when she wrote the letter to the Secretary. There was no law prohibiting her from writing the protest
letters. At any rate, she had the right to do so under the Freedom of Speech Clause. She did not refuse to obey
A.O. No. 19-2011 because she actually allowed her staff to report for night duty. She did not willfully and
intentionally disobey because her protest had legal basis. She would also violate Section 3(a)3 of Republic Act No.
3019 (Anti-Graft and Corrupt Practices Act) if she would comply with the patently illegal A.O. No. 19-2011.4

2. Refusal to honor the appointments of Ms. Mariejoy P. Lagman and Ms. Leilani Tejero-Lopez

The respondent claims that she did not refuse to honor the appointment because rejection was different from
protesting the appointment. She merely exercised her statutory right as a judge to question the appointment of
the branch clerk of court assigned to her sala. Under Canon 2, Section 3 of the New Code of Judicial Conduct for the
Philippine Judiciary,5 she was mandated to bring to the proper authorities the irregularities surrounding the
appointments. Moreover, the contents of the complaint letter and the protest could not be used against her
pursuant to the constitutional right against self-incrimination. She did not also commit any act of cruelty against
Ms. Tejera-Lopez; on the contrary, it was Ms. Tejero-Lopez who "went beyond the norms of decency by her
persistent and annoying application in my court that it actually became a harassment." Her opposition against the
appointment of Ms. Lagman was meritorious. She only employed the wrong choice of words with her choice of the
term privileged communication that was viewed negatively. There was no proof of the alleged verbal threats,
abuse, misconduct or oppression committed against Ms. Tejero-Lopez. It was not proper to penalize a judge based
on a "letter with few words that other people find objectionable."6

3. Show-cause order respondent issued against fellow judges

The respondent posits that the show-cause order she issued to her fellow judges had legal basis because "anything
that is legal cannot be an assumption of the role of a tyrant wielding power with unbridled breath." 7 It was
premature to rule that she thereby abused and committed misconduct because she did not issue any ruling on the
explanation by the other judges.8 She did not violate Section 5, Canon 3 and Section 8, Canon 4 of the Code of
Judicial Conduct. What the other judges should have done was to avail themselves of the appropriate remedy. 9

4. Refusal to sign the leave of absence of Mr. Noel Labid

The refusal to sign the application for leave of absence had factual and legal bases. 10 Moreover, she should be
presumed to have acted in good faith if she misconstrued the rules on approval of application of leave. 11

5. Allowing on-the-job trainees

The respondent claims that she did not order the trainees to perform judicial tasks. She asserts that she could not
remember their affidavit. She had no personal knowledge that the trainees were made to serve as assistant court
stenographers. Based on what she heard, the trainees were only in the premises of her court for a few hours. She
reminds that she allowed the trainees to merely observe proceedings. OCA Circular No. 111-2005 was impliedly
amended when paralegals and law students were allowed to be trained under the Hustisyeah Project. 12

6. Designation of an officer-in-charge and ordering reception of evidence by a non-lawyer

The respondent denies having violated CSC Memorandum Circular No. 06-05 when she designated an officer-in-
charge. There was no proof showing that she willfully and deliberately intended to cause public damage. In fact,
the OCA recognized Mr. Ferdinand Santos as the OIC of her branch in several letters. There was no proof that she
violated Section 9, Rule 30 of the Rules of Court. The ex parte reception of evidence by a non-lawyer clerk of court
was allowed under the Rules of Court, as well as by Section 2l(e), Administrative Circular No. 35-2004, and
Administrative Circular No. 37-93.13

7. Allowing criminal proceedings to continue despite the absence of counsel

The respondent merely followed the Rules of Criminal Procedure in allowing criminal proceedings despite absence
of counsel. In so doing, she relied in good faith on the rulings in People v. Arcilla,14Bravo v. Court of
Appeals,15 and People v. Malinao.16 Under Section l(c), Rule 115 of the Rules of Criminal Procedure, the accused
may be allowed to defend himself in person without the assistance of counsel. 17

8. Sending of inappropriate email messages

The respondent maintains that the e-mail messages were hearsay because the certification by the SC-MISO was
not presented to her, depriving her of the opportunity to object. Her granting access by the MISO to her private e-
mails was conditional to prove tampering. Her

Lycos e-mail account was hacked. She did not completely waive her right to privacy. Considering that she did not
authenticate said e-mail messages, the same were inadmissible for being hearsay. The e-mail messages with her
full name written in capital letters as the sender did not emanate from her because her Yahoo! and MSN accounts
carried her name with only the first letters being capitalized. The e-mails reproduced in the decision were not the
same messages that she had requested Judge San Gaspar-Gito to delete. There were words that she did not write
on the e-mail messages pertaining to her demand for reimbursement of $10.00. Her writing style was different
from what appeared in the e-mail messages. She denies having opened the "Rudela San Gaspar" account. It was
wrong to penalize her based on assumptions and speculations. She did not commit electronic libel. Her funny and
innocent comments were not actionable documents. The certification by the SC MISO was not an authentication as
to the truthfulness of the contents of the e-mail messages and as to the identification of the sender or author of
the messages. It was wrong and unjust to impute wrongdoing to her when there was no proof that she had sent
the inappropriate messages. The disclaimer in the e-mails were not printed in the decision; hence, the messages
were inadmissible. The presentation of the messages without her consent as the sender was covered by the
exclusionary rule. Letters and communications in writing were guaranteed and protected by Sections
2,18 3(1),19 Article III of the 1987 Constitution, and Article 723 of the Civil Code,20 Articles 22621 and 22822 of
the Revised Penal Code, Section 2756 of the Revised Administrative Code,23 Sections 3224 and 3325 of the R.A. No.
8792. There was no proof that she had apologized through e-mail, and had sent messages with sexual undertones
and lewd graphics. Judge Gita had a dirty mind because nothing was wrong with the 69 image by Felicien Raps. She
(respondent) did not commit internet stalking. She had difficulty in remembering the private communications,
which were taken out of context. It was Judge Gita who must have a problem because she had kept the trash
messages. She (respondent) did not transgress any law. The allegations against her were hearsay. She submitted a
letter proposal for a "winwin" solution so that she would not pursue any criminal action against Judge Gito. She did
not violate Section 8, Canon 4 of the New Code of Judicial Conduct because it was one of her staff who had typed
the letter addressed to Atty. San Gaspar. To find her to have abused her power and committed impropriety was
unwarranted. Her absence from the investigation conducted by Justice Abdulwahid could not be taken against her
and could not be construed as her admission of wrong doing or as an evasion of truth. There was no proof that she
had used the phrase our court to advance her personal interest.26

Ruling of the Court

We deny the respondent's Motion for Reconsideration with Explanation for the Show Cause Order for the following
reasons.
1.

The respondent's Motion for Reconsideration is denied for lack of merit

The submissions tendered in the respondent's Motion for Reconsideration with Explanation for the Show Cause
Order were matters that the Court had already exhaustively considered and fully resolved in the decision of
November 22, 2016. We deem it unnecessary to dwell at length on such submissions. We still hold and declare
that the respondent flagrantly and blatantly violated the Lawyer's Oath, and several canons and rules of the Code
of Professional Responsibility, the Canon of Judicial Ethics and the New Judicial Code of Conduct.

Nonetheless, we propose to expound on some points for greater enlightenment on the issues and grounds taken
into consideration in removing the respondent from the Judiciary, and for purposes of providing the requisite
predicate to the ruling on the directive for her to show sufficient cause in writing why she should not also be
disbarred from the Roll of Attorneys.

The respondent insists that there was no proof to support the adverse findings of the Court. She is absolutely
mistaken. The records involved in these cases were voluminous, because they consisted of the affidavits and other
evidence submitted by the several complainants as well as her own pleadings and motions, most of which
constituted proof of her administrative wrongdoings. As the per curiam decision of November 22, 2016 indicated,
her explanations vis-a-vis the complaints often backfired against her, and all the more incriminated her by
systematically exposing her personal and professional ineptitude and stilted logic. In short, the evidence against
her was too compelling to ignore, and sufficed to warrant the supreme action of her removal from the Judiciary.
She was more than aware that the quantum of evidence required in administrative proceedings like these was
substantial evidence, or that amount of relevant evidence that a reasonable mind might accept as adequate to
support a conclusion.27

The respondent's argument that she was deprived of the guarantee against self-incrimination has no basis. As a
judge, she was quite aware that the constitutional guarantee only set the privilege of an individual to refuse to
answer incriminating questions that may directly or indirectly render her criminally liable. The constitutional
guarantee simply secures to a witness - whether a party or not - the right to refuse to answer any particular
incriminatory question.28 The privilege did not prohibit legitimate inquiry in non-criminal matters. At any rate, the
rule only finds application in case of oral testimony and does not apply to object evidence. As the Court has
pointed out in People v. Malimit:29

[The right against self-incrimination], as put by Mr. Justice Holmes in Holt vs. United States, "x x x is a prohibition of
the use of physical or moral compulsion, to extort communications from him x x x" It is simply a prohibition against
legal process to extract from the [accused] 's own lips, against his will, admission of his guilt. It docs not apply to
the instant case where the evidence sought to be excluded is not an incriminating statement but an object
evidence. Wigmore, discussing the question now before us in his treatise on evidence, thus, said:

If, in other words (the rule) created inviolability not only for his [physical control of his] own vocal utterances, but
also for his physical control in whatever form exercise, then, it would be possible for a guilty person to shut himself
up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence
anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the
evidential articles - a clear reduction ad absurdum. In other words, it is not merely compulsion that is the kernel of
the privilege, x x x but testimonial compulsion.30

The respondent's correspondences were outside the scope of the constitutional proscription against self-
incrimination. She had not been subjected to testimonial compulsion in which she could validly raise her right
against self-incrimination. Worthy to recall is that she had herself voluntarily waived her right to be present and to
confront the complainant and her witnesses and evidence during the administrative investigation conducted by CA
Associate Justice Hakim Abdulwahid. She was emphatically granted the opportunity to confront the complainant
and her witnesses but the voluntary and knowing waiver of her presence divested her of the right to insist on the
right to confrontation, if any.

The respondent contends that she was not given the opportunity to raise her objection to the certification issued
by the SC-MISO. This contention is dismissed also because of the same voluntary waiver of her presence from the
proceedings held before Justice Abdulwahid.

At any rate, the respondent alternatively pleads for compassion and mercy, and vows not to repeat the same
transgressions. In this connection, she would have the Court consider in her favor the following mitigating
circumstances pursuant to Section 48, Rule 10 of the Revised Rules of Administrative Cases in Civil Service,31which
provides thus:

1. Medications on allergies as analogous circumstance to an unsubstantiated charge;

2. Good faith on each the unsubstantiated charge xxx;

3. First time offense of the unsubstantiated charge;

4. Lack of education or lack of experience on administrative matters as analogous circumstance to the

unsubstantiated charge;

5. Newness or short number in the judicial service as analogous circumstance to the unsubstantiated charge;

6. Very different work culture from previous employment as unsubstantiated charge;

7. Lack of prejudice to the public as analogous circumstance to the unsubstantiated charge;

8. Remorse for not listening to the unsolicited advices of Court Administrator Jose Midas Marquez and Assistant
Court Administrator Thelma Bahia as analogous circumstance to the unsubstantiated charge;

9. Lack of intent to commit any wrong as analogous circumstance to the unsubstantiated charge;

10. Previously received awards in the performance of his duties to the unsubstantiated charge; and

11. Outstanding court performance as to cases disposal for year to the unsubstantiated charge. 32

The respondent's pleading is unworthy of sympathy.

Firstly, the respondent does not thereby present any compelling argument on how her having medications for
allergies was analogous to physical illness under Section 48(a) of the Revised Rules of Administrative Cases in Civil
Service. Although the list of circumstances in Section 48 is not exclusive because the provision expressly
recognizes other analogous circumstances, she cannot simply state any situation without pointing out why it would
be analogous to the listed circumstances. The Court is unable to appreciate how her consumption of medications
for allergies could generate arrogance, insubordination, gross ignorance of laws, and offensive conduct that
manifested themselves in the periods material to the administrative complaints.

Secondly, the respondent's overall conduct negated her allegation of good faith. Good faith implies the lack of any
intention to commit a wrongdoing. Based on the totality of her acts and actuations, her claims of good faith and
lack of intent to commit a wrong cannot be probable. According to Civil Service Commission v. Maala,33 good faith
as a defense in administrative investigations has been discussed in this wise:

In common usage, the term "good faith" is ordinarily used to describe that state of mind denoting "honesty of
intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry; an honest
intention to abstain from taking any unconscientious advantage of another, even through technicalities of law,
together with absence of all information, notice, or benefit or belief of facts which render transaction
unconscientious."

In short, good faith is actually a question of intention. Although this is something internal, we can ascertain a
person's intention by relying not on his own protestations of good faith, which is self-serving, but on evidence of
his conduct and outward acts. (bold emphasis supplied)

The respondent is reminded that her removal from the Judiciary by reason of her gross insubordination and gross
misconduct did not proceed only from her non-compliance with A.O. No. 19-2011. Other acts and actuations were
also efficient causes, namely: (1) her refusal to abide by the directive of MeTC Executive Judge Bibiano Colasito
that resulted in the disruption of orderliness in the other Pasay City MeTCs to the prejudice of the public service
and public interest; (2) her direct communications to the DOT Secretary and other agencies that seriously
breached established protocols, thereby opening an irregular avenue to publicly broadcast her defiance to the
directive of the Court itself; and (3) her willful disregard of the direct advice by the Court Administrator despite the
latter being the official expressly authorized by law to assist the Court in exercising administrative supervision over
all lower courts and personnel.34

Furthermore, we emphatically observed and pointed out in the decision of November 22, 2016 the following:

In all, Judge Yu exhibited an unbecoming arrogance in committing insubordination and gross misconduct. By her
refusal to adhere to and abide by A.O. No. 19-2011, she deliberately disregarded her duty to serve as the
embodiment of the law at all times. She thus held herself above the law by refusing to be bound by the issuance of
the Court as the duly constituted authority on court procedures and the supervision of the lower courts. To
tolerate her insubordination and gross misconduct is to abet lawlessness on her part. She deserved to be removed
from the service because she thereby revealed her unworthiness of being part of the Judiciary. (Bold emphasis
supplied)

We have stated in the decision of November 22, 2016 that the respondent's recalcitrant streak did not end with
her unbecoming repudiation of and defiance to A.O. No. 19-2011. To recall, she also exhibited extreme arrogance
in rejecting the valid appointments of Ms. Lagman and Ms. Tejero-Lopez despite being fully aware that the
appointing powers pertained to and were being thereby exercised by the Court, and that she was bereft of any
discretion to control or reject the appointments. Under no circumstance could she be justified in draping herself
with the mantle of good faith in regard to her insubordination and arrogance.

We also reject the respondent's appeal for relief based on her supposed lack of experience as a neophyte judge,
and her previously received awards and outstanding court performance. Lack of experience had no relevance in
determining her administrative liabilities for acts and actuations fundamentally irregular or contrary to judicial
ethical standards. We even believe that her being a novice in the Judiciary, instead of mitigating her liability, could
have aggravated her offense, for her being a neophyte judge should have impelled her instead to practice greater
prudence and caution in her daily actuations and performance. But instead of pausing and hesitating, she acted
rashly and imprudently by condescendingly asserting herself over her peers, by flagrantly disobeying her superiors,
including this Court, and by ignoring obvious boundaries that should have kept her in check or reined her in. On
the other hand, the awards for outstanding performances as a professional and as a judge, far from accenting her
good qualities as a person, rather highlighted her unworthiness to remain on the Bench by showing that her
misconduct and general bad attitude as a member thereof has put the awards and recognitions in serious
question.
2.

Disbarment is also to be imposed on the respondent

The respondent's accountability did not end with her removal from the Judiciary. In the decision of November 22,
2016, we declared that her misdemeanor as a member of the Bench could also cause her expulsion from the Legal
Profession through disbarment. Consequently, we directed her to show good and sufficient cause why her actions
and actuations should not also be considered grounds for her disbarment, justifying our directive in the following
manner, viz.:

The foregoing findings may already warrant Judge Yu's disbarment.

A.M. No. 02-9-02-SC, dated September 17, 2002 and entitled Re: Automatic Conversion of Some Administrative
Cases Against Justices of the Court of Appeals and the Sandiganbayan; Judges of Regular and Special Courts; and
Court Officials Who are Lawyers as Disciplinary

Proceedings Against Them Both as Such Officials and as Members of the Philippine Bar, relevantly states:

Some administrative cases against Justices of the Court of Appeals and the Sandiganbayan; judges of regular and
special courts; and court officials who are lawyers are based on grounds which are likewise grounds for the
disciplinary action of members of the Bar for violation of the Lawyer's Oath, the Code of Professional
Responsibility, and the Canons of Professional Ethics, or for such other forms of breaches of conduct that have
been traditionally recognized as grounds for the discipline of lawyers.

In any of the foregoing instances, the administrative case shall also be considered a disciplinary action against the
respondent Justice, judge or court official concerned as a member of the Bar. The respondent may forthwith be
required to comment on the complaint and show cause why he should not also be suspended, disbarred or
otherwise disciplinarily sanctioned as a member of the Bar. Judgment in both respects may be incorporated in one
decision or resolution.

Under Section 27, Rule 138 of the Rules of Court, an attorney may be disbarred on the ground of gross misconduct
and willful disobedience of any lawful order of a superior court. Given her wanton defiance of the Court's own
directives, her open disrespect towards her fellow judges, her blatant abuse of the powers appurtenant to her
judicial office, and her penchant for threatening the defenseless with legal actions to make them submit to her
will, we should also be imposing the penalty of disbarment.1âwphi1 The object of disbarment is not so much to
punish the attorney herself as it is to safeguard the administration of justice, the courts and the public from the
misconduct of officers of the court. Also, disbarment seeks to remove from the Law Profession attorneys who have
disregarded their Lawyer's Oath and thereby proved themselves unfit to continue discharging the trust and respect
given to them as members of the Bar.

The administrative charges against respondent Judge Yu based on grounds that were also grounds for disciplinary
actions against members of the Bar could easily be treated as justifiable disciplinary initiatives against her as a
member of the Bar. This treatment is explained by the fact that her membership in the Bar was an integral aspect
of her qualification for judgeship. Also, her moral and actual unfitness to remain as a Judge, as found in these
cases, reflected her indelible unfitness to remain as a member of the Bar. At the very least, a Judge like her who
disobeyed the basic rules of judicial conduct should not remain as a member of the Bar because she had thereby
also violated her Lawyer's Oath.

Indeed, respondent Judge Yu's violation of the fundamental tenets of judicial conduct embodied in the New Code
of Judicial Conduct for the Philippine Judiciary would constitute a breach of the following canons of the Code of
Professional Responsibility, to wit:
CANON 1 - A LA WYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT
FOR LAW AND FOR LEGAL PROCESSES.

Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in
the legal system.

CANON 6 - THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICE IN THE DISCHARGE OF THEIR
OFFICIAL TASKS.

Rule 6.02 - A lawyer in the government service shall not use his public position to promote or advance his private
interests, nor allow the latter to interfere with his public duties.

CANON 11 - A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL
OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.

Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts.

The Court does not take lightly the ramifications of Judge Yu's misbehavior and misconduct as a judicial officer. By
penalizing her with the supreme penalty of dismissal from the service, she should not anymore be allowed to
remain a member of the Law Profession.

However, this rule of fusing the dismissal of a Judge with disbarment does not in any way dispense with or set
aside the respondent's right to due process. As such, her disbarment as an offshoot of A.M. No. 02-9-02-SC
without requiring her to comment on the disbarment would be violative of her right to due process. To accord due
process to her, therefore, she should first be afforded the opportunity to defend her professional standing as a
lawyer before the Court would determine whether or not to disbar her.

In her comment, the respondent reiterates her submissions in the Motion for Reconsideration with Explanation for
the Show Cause Order. Considering that we have dismissed her pleadings altogether for the reasons given earlier,
her disbarment is now inevitable.

Section 27, Rule 138 of the Rules of Court reads:

Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds. - A member of the bar may be
removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross
misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral
turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a
willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for
a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers, constitutes malpractice.

Accordingly, gross misconduct, violation of the Lawyer's Oath, and willful disobedience of any lawful order by the
Court constitute grounds to disbar an attorney. In the respondent's case, she was herein found to have committed
all of these grounds for disbarment, warranting her immediate disbarment as a consequence.

We deem it worthwhile to remind that the penalty of disbarment being hereby imposed does not equate to
stripping the respondent of the source of her livelihood. Disbarment is intended to protect the administration of
justice by ensuring that those taking part in it as attorneys should be competent, honorable and reliable to enable
the courts and the clients they serve to rightly repose their confidence in them. 35
Once again, we express our disdain for judges and attorneys who undeservedly think too highly of themselves,
their personal and professional qualifications and qualities at the expense of the nobility of the Law Profession. It is
well to remind the respondent that membership in the Law Profession is not like that in any ordinary trade. The
Law is a noble calling, and only the individuals who are competent and fit according to the canons and standards
set by this Court, the law and the Rules of Court may be bestowed the privilege to practice it.36

Lastly, every lawyer must pursue only the highest standards in the practice of his calling. The practice of law is a
privilege, and only those adjudged qualified are permitted to do so. 37 The respondent has fallen short of this
standard thus meriting her expulsion from the profession.

WHEREFORE, the Court DENIES the Motion for Reconsideration with Explanation for the Show Cause
Order with FINALITY; DISBARS EFFECTIVE IMMEDIATELY respondent ELIZA B. YU pursuant to A.M. No. 02-9-02-SC
for violation of the Lawyer's Oath, the Code of Professional Responsibility, and the Canons of Professional
Ethics; and

ORDERS the striking off of respondent ELIZA B. YU's name from the Roll of Attorneys.

Let copies of this resolution be furnished to: (a) the Office of the Court Administrator for dissemination to all
courts throughout the country for their information and guidance; (b) the Integrated Bar of the Philippines; and (c)
the Office of the Bar Confidant to be appended to the respondent's personal record as a member of the Bar.

SO ORDERED.

G.R. No. 185740 July 23, 2013

THE PROVINCIAL GOVERNMENT OF CAMARINES NORTE, represented by GOVERNOR JESUS O. TYPOCO,

JR., Petitioner,
vs.
BEATRIZ O. GONZALES, Respondent.

DECISION

BRION, J.:

We resolve the Provincial Government of Camarines Norte's (petitioner) petition for review on certiorari 1 assailing
the Decision2 dated June 25, 2008 and the Resolution3 dated December 2, 2008 of the Court of Appeals (CA) in CA-
G.R. SP No. 97425, reinstating respondent Beatriz O. Gonzales as the Province of Camarines Norte’s provincial
administrator, or to an equivalent position.

Factual Antecedents

Gonzales was appointed as the provincial administrator of the Province of Camarines Norte by then Governor Roy
A. Padilla, Jr. on April 1, 1991. Her appointment was on a permanent capacity. On March 8, 1999, Governor Jess B.
Pimentel sent Gonzales a memorandum directing her to explain in writing why no administrative charges should
be filed against her for gross insubordination/gross discourtesy in the course of official duties, and conduct grossly
prejudicial to the best interest of the service; this was later on captioned as Administrative Case No. 001. After
Gonzales submitted her comment, an Ad Hoc Investigation Committee found her guilty of the charges against her,
and recommended to Governor Pimentel that she be held administratively liable. 4 On September 30, 1999,
Governor Pimentel adopted the Ad Hoc Investigation Committee’s recommendation and dismissed Gonzales. 5

Proceedings before the Civil Service Commission

Gonzales appealed Governor Pimentel’s decision to the Civil Service Commission (CSC). The CSC issued Resolution
No. 0014186 modifying Governor Pimentel’s decision, finding Gonzales guilty of insubordination and suspending
her for six months. This decision was appealed by Governor Pimentel, which the CSC denied in its Resolution No.
001952.7

Gonzales then filed a motion for execution and clarification of Resolution No. 001418, in which she claimed that
she had already served her six-month suspension and asked to be reinstated. The CSC issued Resolution No.
002245,8which directed Gonzales’ reinstatement.

Governor Pimentel reinstated Gonzales as provincial administrator on October 12, 2000, but terminated her
services the next day for lack of confidence. He then wrote a letter9 to the CSC reporting his compliance with its
order, and Gonzales’ subsequent dismissal as a confidential employee. In his letter, Governor Pimentel cited
Resolution No. 0001158,10 where the CSC ruled that the provincial administrator position is highly confidential and
is coterminous in nature.

The CSC responded through Resolution No. 030008,11 which again directed Gonzales’ reinstatement as provincial
administrator. It clarified that while the Local Government Code of 1991 (Republic Act No. RA 7160) made the
provincial administrator position coterminous and highly confidential in nature, this conversion cannot operate to
prejudice officials who were already issued permanent appointments as administrators prior to the new law’s
effectivity. According to the CSC, Gonzales has acquired a vested right to her permanent appointment as provincial
administrator and is entitled to continue holding this office despite its subsequent classification as a coterminous
position. The conversion of the provincial administrator position from a career to a non-career service should not
jeopardize Gonzales’ security of tenure guaranteed to her by the Constitution. As a permanent appointee,
Gonzales may only be removed for cause, after due notice and hearing. Loss of trust and confidence is not among
the grounds for a permanent appointee’s dismissal or discipline under existing laws.

In a letter12 dated February 17, 2005, Gonzales wrote the CSC alleging that Governor Jesus O. Typoco, Jr.,
Camarines Norte’s incumbent governor, refused to reinstate her. The CSC responded with Resolution No.
061988,13 which ordered Gonzales’ reinstatement to the provincial administrator position, or to an equivalent
position.Thus, the petitioner, through Governor Typoco, filed a petition for review before the CA, seeking to nullify
the CSC’s Resolution No. 030008 and Resolution No. 061988.

The Appellate Court’s Ruling

The CA supported the CSC’s ruling that reinstated Gonzales as provincial administrator or to an equivalent
position.14

Citing Aquino v. Civil Service Commission,15 the CA emphasized that an appointee acquires a legal right to his
position once he assumes a position in the civil service under a completed appointment. This legal right is
protected both by statute and the Constitution, and he cannot be removed from office without cause and previous
notice and hearing. Appointees cannot be removed at the mere will of those vested with the power of removal, or
without any cause.

The CA then enumerated the list of valid causes for a public officer’s removal under Section 46, 16 Book V, Title I,
Subtitle A of the Revised Administrative Code (Administrative Code), and noted that lack of confidence was not in
the list. Thus, the CA concluded that Gonzales’ dismissal on the ground of loss of confidence violated her security
of tenure, and that she has the right to be reinstated with payment of backwages.

The CA further held that Gonzales’ dismissal was illegal because it was done without due process. The proceedings
under Administrative Case No. 001 cannot be the basis for complying with the requirements of due process
because they are separate and distinct from the proceedings in the present controversy. Thus, Gonzales was
illegally terminated when she was dismissed for lack of confidence, without any hearing, the day after she was
reinstated.

Lastly, the CA noted that Resolution No. 002245, which modified Governor Pimentel’s decision, has long been final
and executory. The petitioner did not file any petition for reconsideration against Resolution No. 002245, and
hence, it is no longer alterable.

The petitioner sought a reconsideration17 of the CA’s Decision, which the CA denied in a Resolution18 dated
December 2, 2008.

The Present Petition

In its present petition for review on certiorari, the petitioner argues that the provincial administrator position has
been converted into a highly confidential, coterminous position by RA 7160. Hence, Gonzales no longer enjoyed
security of tenure to the position she held prior to RA 7160’s enactment.

In her Comment19 and Memorandum,20 Gonzales maintained that the provincial administrator remained a career
service position. Section 721 of Presidential Decree No. 807, which was one of the bases of the Court in Laurel V v.
Civil Service Commission22 to declare the provincial administrator as a career service position, is a verbatim copy of
Section 7,23 Chapter 2 of the Administrative Code. This classification, established by law and jurisprudence, cannot
be altered by the mere implementing rules and regulations of RA 7160. And assuming arguendo that the provincial
administrator position has indeed become a primarily confidential position, this reclassification should not apply
retroactively to Gonzales’ appointment on a permanent capacity prior to RA 7160’s effectivity.

Issues

The parties’ arguments, properly joined, present to us the following issues:

1) Whether Congress has re-classified the provincial administrator position from a career service to a
primarily confidential, non-career service position; and

2) Whether Gonzales has security of tenure over her position as provincial administrator of the Province
of Camarines Norte.

The Court’s Ruling

We find the petition meritorious.

Congress has reclassified the provincial administrator position as a primarily confidential, non-career position

We support the CSC’s conclusion that the provincial administrator position has been classified into a primarily
confidential, non-career position when Congress, through RA 7160, made substantial changes to it. First, prior to
RA 7160, Batas Pambansa Blg. 337, the old Local Government Code (LGC), did not include a provincial
administrator position among the listing of mandatory provincial officials, 24 but empowered the Sangguniang
Panlalawigan to create such other offices as might then be necessary to carry out the purposes of the provincial
government.25 RA 7160 made the position mandatory for every province.26 Thus, the creation of the provincial
administrator position under the old LGC used to be a prerogative of the Sangguniang Panlalawigan.

Second, in introducing the mandatory provincial administrator position, RA 7160 also amended the qualifications
for the provincial administrator position. While Section 480 27 of RA 7160 retained the requirement of civil service
eligibility for a provincial administrator, together with the educational requirements, it shortened the six-year work
experience requirement to five years. 28 It also mandated the additional requirements of residence in the local
government concerned, and imposed a good moral character requirement.

Third, RA 7160 made the provincial administrator position coterminous with its appointing authority, reclassifying
it as a non-career service position that is primarily confidential.

Before RA 7160 took effect, Laurel classified the provincial administrator position as an open career position which
required qualification in an appropriate examination prior to appointment. Laurel placed the provincial
administrator position under the second major level of positions in the career service under Section 7 of
Presidential Decree No. 807. This provision reads:

Section 7. Classes of Positions in the Career Service.

(a) Classes of positions in the career service appointment to which requires examinations shall be grouped into
three major levels as follows:

xxxx

2. The second level shall include professional, technical, and scientific positions which involve professional,
technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college
work up to Division Chief level.

Section 480 of RA 7160 made the provincial administrator’s functions closely related to the prevailing provincial
administration by identifying the incumbent with the provincial governor to ensure the alignment of the
governor’s direction for the province with what the provincial administrator would implement. In contrast with the
general direction provided by the provincial governor under the Manual of Position Descriptions cited in Laurel,
Section 480(b) of RA 7160 now mandates constant interaction between the provincial administrator and the
provincial governor, to wit:

(b) The administrator shall take charge of the office of the administrator and shall:

(1) Develop plans and strategies and upon approval thereof by the governor or mayor, as the case may
be, implement the same particularly those which have to do with the management and administration-
related programs and projects which the governor or mayor is empowered to implement and which the
sanggunian is empowered to provide for under this Code;

(2) In addition to the foregoing duties and functions, the administrator shall:

(i) Assist in the coordination of the work of all the officials of the local government unit, under the supervision,
direction, and control of the governor or mayor, and for this purpose, he may convene the chiefs of offices and
other officials of the local government unit;

xxxx
(4) Recommend to the sanggunian and advise the governor and mayor, as the case may be, on all other matters
relative to the management and administration of the local government unit. [emphases and italics ours]

As the CSC correctly noted in Resolution No. 0001158,29 the administrator position demands a close intimate
relationship with the office of the governor (its appointing authority) to effectively develop, implement and
administer the different programs of the province. The administrator’s functions are to recommend to the
Sanggunian and to advise the governor on all matters regarding the management and administration of the
province, thus requiring that its occupant enjoy the governor’s full trust and confidence.

To emphasize the close relations that the provincial administrators’ functions have with the office of the governor,
RA 7160 even made the provincial administrator position coterminous with its appointing authority. 30 This
provision, along with the interrelations between the provincial administrator and governor under Section 480,
renders clear the intent of Congress to make the provincial administrator position primarily confidential under the
non-career service category of the civil service.

Congress’ reclassification of the provincial administrator position in RA 7160 is a valid exercise of legislative power
that does not violate Gonzales’ security of tenure

Having established that Congress has changed the nature of the provincial administrator position to a primarily
confidential employee, the next question to address would be its impact on Gonzales’ security of tenure. According
to the petitioner, Gonzales lost her security of tenure when the provincial administrator position became a
primarily confidential position. Gonzales, on the other hand, retorted that the conversion of the position should
not be retroactively applied to her, as she is a permanent appointee. Both the CA and the CSC ruled in favor of the
latter, and gave premium to Gonzales’ original permanent appointment under the old LGC. They posit that
Gonzales acquired a vested legal right over her position from the moment she assumed her duties as provincial
administrator. Thus, she cannot be removed from office except for cause and after due hearing; otherwise such
removal would amount to a violation of her security of tenure.

The arguments presented by the parties and ruled upon by the CA reflect a conceptual entanglement between the
nature of the position and an employee’s right to hold a position. These two concepts are different. The nature of
a position may change by law according to the dictates of Congress. The right to hold a position, on the other hand,
is a right that enjoys constitutional and statutory guarantee, but may itself change according to the nature of the
position.

Congress has the power and prerogative to introduce substantial changes in the provincial administrator position
and to reclassify it as a primarily confidential, non-career service position. Flowing from the legislative power to
create public offices is the power to abolish and modify them to meet the demands of society; 31 Congress can
change the qualifications for and shorten the term of existing statutory offices. When done in good faith, these
acts would not violate a public officer’s security of tenure, even if they result in his removal from office or the
shortening of his term.32 Modifications in public office, such as changes in qualifications or shortening of its tenure,
are made in good faith so long as they are aimed at the office and not at the incumbent. 33

In Salcedo and Ignacio v. Carpio and Carreon,34 for instance, Congress enacted a law modifying the offices in the
Board of Dental Examiners. The new law, RA 546, raised the qualifications for the board members, and provided
for a different appointment process. Dr. Alfonso C. Salcedo and Dr. Pascual Ignacio, who were incumbent board
members at the time RA 546 took effect, filed a special civil action for quo warranto against their replacements,
arguing that their term of office under the old law had not yet expired, and neither had they abandoned or been
removed from office for cause. We dismissed their petition, and held that Congress may, by law, terminate the
term of a public office at any time and even while it is occupied by the incumbent. Thus, whether Dr. Salcedo and
Dr. Ignacio were removed for cause or had abandoned their office is immaterial.
More recently, in Dimayuga v. Benedicto II,35 we upheld the removal of Chona M. Dimayuga, a permanent
appointee to the Executive Director II position, which was not part of the career executive service at the time of
her appointment. During her incumbency, the CSC, by authority granted under Presidential Decree No. 1, classified
the Executive Director II position to be within the career executive service. Since Dimayuga was not a career
executive service officer, her initially permanent appointment to the position became temporary; thus, she could
be removed from office at any time.

In the current case, Congress, through RA 7160, did not abolish the provincial administrator position but
significantly modified many of its aspects. It is now a primarily confidential position under the non-career service
tranche of the civil service. This change could not have been aimed at prejudicing Gonzales, as she was not the
only provincial administrator incumbent at the time RA 7160 was enacted. Rather, this change was part of the
reform measures that RA 7160 introduced to further empower local governments and decentralize the delivery of
public service. Section 3(b) of RA 7160 provides as one of its operative principles that:

(b) There shall be established in every local government unit an accountable, efficient, and dynamic organizational
structure and operating mechanism that will meet the priority needs and service requirements of its communities.

Thus, Gonzales’ permanent appointment as provincial administrator prior to the enactment of RA 7160 is
immaterial to her removal as provincial administrator. For purposes of determining whether Gonzales’ termination
violated her right to security of tenure, the nature of the position she occupied at the time of her removal should
be considered, and not merely the nature of her appointment at the time she entered government service.

In echoing the CSC and the CA’s conclusion, the dissenting opinion posits the view that security of tenure protects
the permanent appointment of a public officer, despite subsequent changes in the nature of his position.

Citing Gabriel v. Domingo,36 the dissenting opinion quotes our categorical declaration that "a permanent employee
remains a permanent employee unless he is validly terminated," and from there attempts to draw an analogy
between Gabriel and the case at hand.

The very first sentence of Gabriel spells out its vast difference from the present case. The sole and main issue in
Gabriel is whether backwages and other monetary benefits could be awarded to an illegally dismissed government
employee, who was later ordered reinstated. From this sentence alone can be discerned that the issues involved
related to the consequences of illegal dismissal rather than to the dismissal itself. Nowhere in Gabrielwas there
any mention of a change in the nature of the position held by the public officer involved.

Further, key factual differences make Gabriel inapplicable to the present case, even if only by analogy: first, the
public officer in Gabriel received a Memorandum stating that he would be appointed as Transportation District
Supervisor III under their office reorganization. Second, the Court in Gabriel clearly pointed out that the reason for
his eventual appointment as a casual employee, which led to his termination from service, was due to a pending
protest he filed before the CSC – indicating that there was no ground for him to not receive the appointment
earlier promised. In contrast, the issue of Gonzales is whether the appointing authority’s lack of trust and
confidence in the appointee was sufficient cause for the termination of employment of a primarily confidential
employee. And third, there was a change in the position held by the public officer in Gabriel. He was a permanent
employee who was extended a different appointment, which was casual in nature, because of a protest that he
earlier filed. In contrast, the current case involves a public officer who held the same position whose nature
changed because of the passage of RA 7160.

The dissent also quotes the penultimate paragraph of Civil Service Commission v. Javier 37 to support its contention
that permanent appointees could expect protection for their tenure and appointments in the event that the Court
determines that the position is actually confidential in nature:
The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various
GOCCs. The officers likely assumed their positions on permanent career status, expecting protection for their
tenure and appointments, but are now re-classified as primarily confidential appointees. Such concern is
unfounded, however, since the statutes themselves do not classify the position of corporate secretary as
permanent and career in nature. Moreover, there is no absolute guarantee that it will not be classified as
confidential when a dispute arises. As earlier stated, the Court, by legal tradition, has the power to make a final
determination as to which positions in government are primarily confidential or otherwise. In the light of the
instant controversy, the Court's view is that the greater public interest is served if the position of a corporate
secretary is classified as primarily confidential in nature.38

The quoted portion, however, even bolsters our theory. Read together with its succeeding paragraph, the quoted
portion in Civil Service Commission v. Javier39 actually stands for the proposition that other corporate secretaries in
government-owned and –controlled corporations cannot expect protection for their tenure and appointments
upon the reclassification of their position to a primarily confidential position. There, the Court emphasized that
these officers cannot rely on the statutes providing for their permanent appointments, if and when the Court
determines these to be primarily confidential. In the succeeding paragraph after the portion quoted by the dissent,
we even pointed out that there is no vested right to public office, nor is public service a property right. Thus:

Moreover, it is a basic tenet in the country's constitutional system that "public office is a public trust," and that
there is no vested right in public office, nor an absolute right to hold office. No proprietary title attaches to a public
office, as public service is not a property right. Excepting constitutional offices which provide for special immunity
as regards salary and tenure, no one can be said to have any vested right in an office. The rule is that offices in
government, except those created by the constitution, may be abolished, altered, or created anytime by statute.
And any issues on the classification for a position in government may be brought to and determined by the
courts.40(emphases and italics ours)

Executive Order No. 503 does not grant Gonzales security of tenure in the provincial administrator position on a
permanent capacity

In extending security of tenure to Gonzales’ permanent appointment as provincial administrator, the dissenting
opinion cites as authority Executive Order No. (EO) 503 which provided certain safeguards against the termination
of government employees affected by the implementation of RA 7160. According to the dissenting opinion, EO 503
is an obvious indication of the executive department’s intent to protect and uphold both the national government
and the local government employees’ security of tenure. It cites Section 2(a), paragraph 8 (providing for the tenure
of an administrator) to prove its point:

8. Incumbents of positions, namely administrator, legal officer, and information officer declared by the Code as
coterminous, who hold permanent appointments, shall continue to enjoy their permanent status until they vacate
their positions.

At first glance, EO 503 does seem to extend the provincial administrators’ security of tenure in their permanent
appointments even beyond the effectivity of RA 7160. EO 503, however, does not apply to employees of the local
government affected by RA 7160’s enactment. The title of EO 503 clearly provides for its scope of application, to
wit:

Executive Order No. 503. Providing for the Rules and Regulations Implementing the Transfer of Personnel and
Assets, Liabilities and Records of National Government Agencies whose Functions are to be Devolved to the Local
Government Units and for other Related Purposes. [underscore, italics and emphases ours]

A reading of EO 503’s whereas clauses confirms that it applies only to national government employees whose
functions are to be devolved to local governments:
WHEREAS, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, hereinafter referred to
as the Code, transfers the responsibility for the delivery of basic services and facilities from the national
government agencies (NGAs) concerned to the local government units (LGUs);

WHEREAS, the Code stipulated that the transfer of basic services and facilities shall be accompanied by the
transfer of the national personnel concerned and assets to ensure continuity in the delivery of such services and
facilities;

WHEREAS, responsive rules and regulations are needed to affect the required transfer of national personnel
concerned and assets to the LGUs. [underscores, italics and emphases ours]

Thus, paragraph 8, section 2(a) of EO 503 cannot apply to Gonzales, a provincial administrator. As explained
earlier, the existence of the provincial administrator position was a prerogative of the Sanggunian Panlalawigan,
and was not even a mandatory public office under the old LGC. It is clearly not a national government position
whose functions are to be devolved to the local governments.

The dissenting opinion, on the other hand, argues that EO 503 does not apply to national government employees
only. According to the dissent, the phrase "and for related purposes" in EO 503’s title could encompass personnel
not necessarily employed by national government agencies but by local government units such as the
administrator, the legal officer and the information officer, as enumerated in Section 2(a), paragraph 8 thereof.
This provision, according to the dissent, fills the crucial gap left by RA 7160 which did not provide whether the
term of an incumbent provincial administrator would automatically become coterminous with that of the
appointing authority upon RA 7160’s effectivity.

This kind of construction effectively adds to EO 503’s object matters that it did not explicitly provide for. The
phrase "and for other related purposes" can only add to EO 503 matters related to the devolution of personnel,
basic services and facilities to local government units. The impact of the change in a local government position’s
nature is clearly different from the implementation of devolution and its ancillary effects: the former involves a
change in a local government position’s functions and concept of tenure, while the latter involves (among other
things) the transfer of national government employees to local government units. This difference is highlighted by
the fact that EO 503, as reflected by its whereas clauses, was issued to implement Section 17 of RA 7160. In
contrast, the change in the nature of the provincial administrator position may be gleaned from Section 480 of RA
7160. Hence, by no stretch of reasonable construction can the phrase "and for other related purposes" in EO 503’s
title be understood to encompass the consequences of the change in the local government position’s nature.

Furthermore, construing that the administrator position in Section 2(a), paragraph 8 pertains to city, municipal
and/or provincial administrators would result in a legal infirmity. EO 503 was issued pursuant to the President’s
ordinance powers to provide for rules that are general or permanent in character for the purpose of implementing
the President’s constitutional or statutory powers.41 Exercising her constitutional duty to ensure that all laws are
faithfully executed, then President Corazon Aquino issued EO 503 to ensure the executive’s compliance with
paragraph (i), Section 17 of RA 7160, which requires local government units to absorb the personnel of national
agencies whose functions shall be devolved to them. 42 This is reflected in EO 503’s title and whereas clauses, and
its limited application as discussed earlier.

Thus, the dissenting opinion’s interpretation would result in the judicial recognition of an act of the Executive
usurping a legislative power. The grant of permanent status to incumbent provincial administrators, despite the
clear language and intent of RA 7160 to make the position coterminous, is an act outside the President’s legitimate
powers. The power to create, abolish and modify public offices is lodged with Congress. 43 The President cannot,
through an Executive Order, grant permanent status to incumbents, when Congress by law has declared that the
positions they occupy are now confidential. Such act would amount to the President’s amendment of an act of
Congress – an act that the Constitution prohibits. Allowing this kind of interpretation violates the separation of
powers, a constitutionally enshrined principle that the Court has the duty to uphold.44
The dissent counters this argument by pointing out that Section 2(a), paragraph 8 of EO 503 enjoys the legal
presumption of validity. Unless the law or rule is annulled in a direct proceeding, the legal presumption of its
validity stands. The EO’s validity, however, is not in question in the present case. What is at issue is a proper
interpretation of its application giving due respect to the principle of separation of powers, and the dissenting
opinion’s interpretation does violence to this principle.

Gonzales has security of tenure, but only as a primarily confidential employee

To be sure, both career and non-career service employees have a right to security of tenure.1âwphi1 All
permanent officers and employees in the civil service, regardless of whether they belong to the career or non-
career service category, are entitled to this guaranty; they cannot be removed from office except for cause
provided by law and after procedural due process.45 The concept of security of tenure, however, labors under a
variation for primarily confidential employees due to the basic concept of a "primarily confidential" position.
Serving at the confidence of the appointing authority, the primarily confidential employee’s term of office expires
when the appointing authority loses trust in the employee. When this happens, the confidential employee is not
"removed" or "dismissed" from office; his term merely "expires" 46 and the loss of trust and confidence is the "just
cause" provided by law that results in the termination of employment. In the present case where the trust and
confidence has been irretrievably eroded, we cannot fault Governor Pimentel’s exercise of discretion when he
decided that he could no longer entrust his confidence in Gonzales.

Security of tenure in public office simply means that a public officer or employee shall not be suspended or
dismissed except for cause, as provided by law and after due process. It cannot be expanded to grant a right to
public office despite a change in the nature of the office held. In other words, the CSC might have been legally
correct when it ruled that the petitioner violated Gonzales’ right to security of tenure when she was removed
without sufficient just cause from her position, but the situation had since then been changed. In fact, Gonzales
was reinstated as ordered, but her services were subsequently terminated under the law prevailing at the time of
the termination of her service; i.e., she was then already occupying a position that was primarily confidential and
had to be dismissed because she no longer enjoyed the trust and confidence of the appointing authority. Thus,
Gonzales’ termination for lack of confidence was lawful. She could no longer be reinstated as provincial
administrator of Camarines Norte or to any other comparable position. This conclusion, however, is without
prejudice to Gonzales’ entitlement to retirement benefits, leave credits, and future employment in government
service.

WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET ASIDE the Decision
dated June 25, 2008 and the Resolution dated December 2, 2008 of the Court of Appeals in CAG.R. SP No. 97425.

SO ORDERED.

G.R. No. 164679 July 27, 2011

OFFICE OF THE OMBUDSMAN, Petitioner,

vs.
ULDARICO P. ANDUTAN, JR., Respondent.

DECISION

BRION, J.:

Through a petition for review on certiorari,1 the petitioner Office of the Ombudsman (Ombudsman) seeks the
reversal of the decision2 of the Court of Appeals (CA), dated July 28, 2004, in "Uldarico P. Andutan, Jr. v. Office of
the Ombudsman and Fact Finding and Intelligence Bureau (FFIB), etc.," docketed as CA-G.R. SP No. 68893. The
assailed decision annulled and set aside the decision of the Ombudsman dated July 30, 2001,3 finding Uldarico P.
Andutan, Jr. guilty of Gross Neglect of Duty.

THE FACTUAL ANTECEDENTS

Andutan was formerly the Deputy Director of the One-Stop Shop Tax Credit and Duty Drawback Center of the
Department of Finance (DOF). On June 30, 1998, then Executive Secretary Ronaldo Zamora issued a Memorandum
directing all non-career officials or those occupying political positions to vacate their positions effective July 1,
1998.4 On July 1, 1998, pursuant to the Memorandum, Andutan resigned from the DOF. 5

On September 1, 1999, Andutan, together with Antonio P. Belicena, former Undersecretary, DOF; Rowena P.
Malonzo, Tax Specialist I, DOF; Benjamin O. Yao, Chairman and Executive Officer, Steel Asia Manufacturing
Corporation (Steel Asia); Augustus S. Lapid, Vice-President, Steel Asia; Antonio M. Lorenzana, President and Chief
Operating Officer, Steel Asia; and Eulogio L. Reyes, General Manager, Devmark Textiles Ind. Inc., was criminally
charged by the Fact Finding and Intelligence Bureau (FFIB) of the Ombudsman with Estafa through Falsification of
Public Documents, and violations of Section 3(a), (e) and (j) of Republic Act No. (R.A.) 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act.6 As government employees, Andutan, Belicena and Malonzo were
likewise administratively charged of Grave Misconduct, Dishonesty, Falsification of Official Documents and
Conduct Prejudicial to the Best Interest of the Service. 7

The criminal and administrative charges arose from anomalies in the illegal transfer of Tax Credit Certificates
(TCCs) to Steel Asia, among others.8

During the investigation, the FFIB found that Steel Asia fraudulently obtained TCCs worth Two Hundred Forty-Two
Million, Four Hundred Thirty-Three Thousand, Five Hundred Thirty-Four Pesos (₱242,433,534.00).9 The FFIB
concluded that Belicena, Malonzo and Andutan – in their respective capacities – irregularly approved the "issuance
of the TCCs to several garment/textile companies and allowing their subsequent illegal transfer" to Steel Asia. 10

On November 11, 1999, the Ombudsman ordered the respondents therein (respondents) to submit their counter-
affidavits. Only Malonzo complied with the order, prompting the Ombudsman to set a Preliminary Conference on
March 13, 2000.

Upon the respondents’ failure to appear at the March 20, 2000 hearing, the Ombudsman deemed the case
submitted for resolution.

On July 30, 2001, the Ombudsman found the respondents guilty of Gross Neglect of Duty. 11 Having been separated
from the service, Andutan was imposed the penalty of forfeiture of all leaves, retirement and other benefits and
privileges, and perpetual disqualification from reinstatement and/or reemployment in any branch or
instrumentality of the government, including government owned and controlled agencies or corporations. 12

After failing to obtain a reconsideration of the decision,13 Andutan filed a petition for review on certiorari before
the CA.

On July 28, 2004,14 the CA annulled and set aside the decision of the Ombudsman, ruling that the latter "should not
have considered the administrative complaints" because: first, Section 20 of R.A. 6770 provides that the
Ombudsman "may not conduct the necessary investigation of any administrative act or omission complained of if
it believes that x x x [t]he complaint was filed after one year from the occurrence of the act or omission
complained of";15 and second, the administrative case was filed after Andutan’s forced resignation. 16

THE PETITIONER’S ARGUMENTS

In this petition for review on certiorari, the Ombudsman asks the Court to overturn the decision of the CA. It
submits, first, that contrary to the CA’s findings, administrative offenses do not prescribe after one year from their
commission,17 and second, that in cases of "capital" administrative offenses, resignation or optional retirement
cannot render administrative proceedings moot and academic, since accessory penalties such as perpetual
disqualification and the forfeiture of retirement benefits may still be imposed. 18

The Ombudsman argues that Section 20 of R.A. 6770 is not mandatory. Consistent with existing jurisprudence, the
use of the word "may" indicates that Section 20 is merely directory or permissive. 19 Thus, it is not ministerial upon
it to dismiss the administrative complaint, as long as any of the circumstances under Section 20 is present. 20 In any
case, the Ombudsman urges the Court to examine its mandate under Section 13, Article XI of the 1987
Constitution, and hold that an imposition of a one (1) year prescriptive period on the filing of cases
unconstitutionally restricts its mandate.21

Further, the Ombudsman submits that Andutan’s resignation from office does not render moot the administrative
proceedings lodged against him, even after his resignation. Relying on Section VI(1) of Civil Service Commission
(CSC) Memorandum Circular No. 38,22 the Ombudsman argues that "[a]s long as the breach of conduct was
committed while the public official or employee was still in the service x x x a public servant’s resignation is not a
bar to his administrative investigation, prosecution and adjudication." 23 It is irrelevant that Andutan had already
resigned from office when the administrative case was filed since he was charged for "acts performed in office
which are inimical to the service and prejudicial to the interests of litigants and the general public." 24 Furthermore,
even if Andutan had already resigned, there is a need to "determine whether or not there remains penalties
capable of imposition, like bar from reentering the (sic) public service and forfeiture of benefits."25 Finally, the
Ombudsman reiterates that its findings against Andutan are supported by substantial evidence.

THE RESPONDENT’S ARGUMENTS

Andutan raises three (3) counterarguments to the Ombudsman’s petition.

First, Andutan submits that the CA did not consider Section 20(5) of R.A. 6770 as a prescriptive period; rather, the
CA merely held that the Ombudsman should not have considered the administrative complaint. According to
Andutan, Section 20(5) "does not purport to impose a prescriptive period x x x but simply prohibits the Office of
the Ombudsman from conducting an investigation where the complaint [was] filed more than one (1) year from
the occurrence of the act or omission complained of."26 Andutan believes that the Ombudsman should have
referred the complaint to another government agency.27 Further, Andutan disagrees with the Ombudsman’s
interpretation of Section 20(5). Andutan suggests that the phrase "may not conduct the necessary investigation"
means that the Ombudsman is prohibited to act on cases that fall under those enumerated in Section 20(5). 28

Second, Andutan reiterates that the administrative case against him was moot because he was no longer in the
public service at the time the case was commenced. 29 According to Andutan, Atty. Perez v. Judge Abiera30 and
similar cases cited by the Ombudsman do not apply since the administrative investigations against the respondents
in those cases were commenced prior to their resignation. Here, Andutan urges the Court to rule otherwise since
unlike the cases cited, he had already resigned before the administrative case was initiated. He further notes that
his resignation from office cannot be characterized as "preemptive, i.e. made under an atmosphere of fear for the
imminence of formal charges"31 because it was done pursuant to the Memorandum issued by then Executive
Secretary Ronaldo Zamora.

Having established the propriety of his resignation, Andutan asks the Court to uphold the mootness of the
administrative case against him since the cardinal issue in administrative cases is the "officer’s fitness to remain in
office, the principal penalty imposable being either suspension or removal." 32 The Ombudsman’s opinion - that
accessory penalties may still be imposed - is untenable since it is a fundamental legal principle that "accessory
follows the principal, and the former cannot exist independently of the latter." 33
Third, the Ombudsman’s findings were void because procedural and substantive due process were not observed.
Likewise, Andutan submits that the Ombudsman’s findings lacked legal and factual bases.

ISSUES

Based on the submissions made, we see the following as the issues for our resolution:

I. Does Section 20(5) of R.A. 6770 prohibit the Ombudsman from conducting an administrative
investigation a year after the act was committed?

II. Does Andutan’s resignation render moot the administrative case filed against him?

III. Assuming that the administrative case is not moot, are the Ombudsman’s findings supported by
substantial evidence?

THE COURT’S RULING

We rule to deny the petition.

The provisions of Section 20(5) are merely directory; the Ombudsman is not prohibited from conducting an
investigation a year after the supposed act was committed.

The issue of whether Section 20(5) of R.A. 6770 is mandatory or discretionary has been settled by
jurisprudence.34In Office of the Ombudsman v. De Sahagun,35 the Court, speaking through Justice Austria-Martinez,
held:

[W]ell-entrenched is the rule that administrative offenses do not prescribe [Concerned Taxpayer v. Doblada, Jr.,
A.M. No. P-99-1342, September 20, 2005, 470 SCRA 218; Melchor v. Gironella, G.R. No. 151138, February 16, 2005,
451 SCRA 476; Heck v. Judge Santos, 467 Phil. 798, 824 (2004); Floria v. Sunga, 420 Phil. 637, 648-649 (2001)].
Administrative offenses by their very nature pertain to the character of public officers and employees. In
disciplining public officers and employees, the object sought is not the punishment of the officer or employee but
the improvement of the public service and the preservation of the public’s faith and confidence in our government
[Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481; Remolona v. Civil Service
Commission, 414 Phil. 590, 601 (2001)].

Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:

SEC. 20. Exceptions. – The Office of the Ombudsman may not conduct the necessary investigation of any
administrative act or omission complained of if it believes that:

xxxx

(5) The complaint was filed after one year from the occurrence of the act or omission complained of. (Emphasis
supplied)

proscribes the investigation of any administrative act or omission if the complaint was filed after one year from the
occurrence of the complained act or omission.

In Melchor v. Gironella [G.R. No. 151138, February 16, 2005, 451 SCRA 476], the Court held that the period stated
in Section 20(5) of R.A. No. 6770 does not refer to the prescription of the offense but to the discretion given to
the Ombudsman on whether it would investigate a particular administrative offense. The use of the word "may" in
the provision is construed as permissive and operating to confer discretion [Melchor v. Gironella, G.R. No. 151138,
February 16, 2005, 451 SCRA 476, 481; Jaramilla v. Comelec, 460 Phil. 507, 514 (2003)]. Where the words of a
statute are clear, plain and free from ambiguity, they must be given their literal meaning and applied without
attempted interpretation [Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481; National
Federation of Labor v. National Labor Relations Commission, 383 Phil. 910, 918 (2000)].

In Filipino v. Macabuhay [G.R. No. 158960, November 24, 2006, 508 SCRA 50], the Court interpreted Section 20 (5)
of R.A. No. 6770 in this manner:

Petitioner argues that based on the abovementioned provision [Section 20(5) of RA 6770)], respondent's complaint
is barred by prescription considering that it was filed more than one year after the alleged commission of the acts
complained of.

Petitioner's argument is without merit.

The use of the word "may" clearly shows that it is directory in nature and not mandatory as petitioner contends.
When used in a statute, it is permissive only and operates to confer discretion; while the word "shall" is
imperative, operating to impose a duty which may be enforced. Applying Section 20(5), therefore, it is
discretionary upon the Ombudsman whether or not to conduct an investigation on a complaint even if it was
filed after one year from the occurrence of the act or omission complained of. In fine, the complaint is not
barred by prescription. (Emphasis supplied)

The declaration of the CA in its assailed decision that while as a general rule the word "may" is directory, the
negative phrase "may not" is mandatory in tenor; that a directory word, when qualified by the word "not,"
becomes prohibitory and therefore becomes mandatory in character, is not plausible. It is not supported by
jurisprudence on statutory construction. [emphases and underscoring supplied]

Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from conducting an administrative investigation
after the lapse of one year, reckoned from the time the alleged act was committed. Without doubt, even if the
administrative case was filed beyond the one (1) year period stated in Section 20(5), the Ombudsman was well
within its discretion to conduct the administrative investigation.

However, the crux of the present controversy is not on the issue of prescription, but on the issue of the
Ombudsman’s authority to institute an administrative complaint against a government employee who had already
resigned. On this issue, we rule in Andutan’s favor.

Andutan’s resignation divests the Ombudsman of its right to institute an administrative complaint against him.

Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770 from conducting the investigation, the
Ombudsman can no longer institute an administrative case against Andutan because the latter was not a public
servant at the time the case was filed.

The Ombudsman argued – in both the present petition and in the petition it filed with the CA – that Andutan’s
retirement from office does not render moot any administrative case, as long as he is charged with an offense he
committed while in office. It is irrelevant, according to the Ombudsman, that Andutan had already resigned prior
to the filing of the administrative case since the operative fact that determines its jurisdiction is the commission of
an offense while in the public service.

The Ombudsman relies on Section VI(1) of Civil Service Commission Memorandum Circular No. 38 for this
proposition, viz.:
Section VI.

1. x x x

An officer or employee under administrative investigation may be allowed to resign pending decision of his case
but it shall be without prejudice to the continuation of the proceeding against him. It shall also be without
prejudice to the filing of any administrative, criminal case against him for any act committed while still in the
service. (emphasis and underscoring supplied)

The CA refused to give credence to this argument, holding that the provision "refers to cases where the officers or
employees were already charged before they were allowed to resign or were separated from service." 36 In this
case, the CA noted that "the administrative cases were filed only after Andutan was retired, hence the
Ombudsman was already divested of jurisdiction and could no longer prosecute the cases." 37

Challenging the CA’s interpretation, the Ombudsman argues that the CA "limited the scope of the cited Civil
Service Memorandum Circular to the first sentence."38 Further, according to the Ombudsman, "the court a quo
ignored the second statement in the said circular that contemplates a situation where previous to the institution of
the administrative investigation or charge, the public official or employee subject of the investigation has
resigned."39

To recall, we have held in the past that a public official’s resignation does not render moot an administrative case
that was filed prior to the official’s resignation. In Pagano v. Nazarro, Jr., 40 we held that:

In Office of the Court Administrator v. Juan [A.M. No. P-03-1726, 22 July 2004, 434 SCRA 654, 658], this Court
categorically ruled that the precipitate resignation of a government employee charged with an offense punishable
by dismissal from the service does not render moot the administrative case against him. Resignation is not a way
out to evade administrative liability when facing administrative sanction. The resignation of a public servant does
not preclude the finding of any administrative liability to which he or she shall still be answerable [Baquerfo v.
Sanchez, A.M. No. P-05-1974, 6 April 2005, 455 SCRA 13, 19-20]. [emphasis and underscoring supplied]

Likewise, in Baquerfo v. Sanchez,41 we held:

Cessation from office of respondent by resignation [Reyes v. Cristi, A.M. No. P-04-1801, 2 April 2004, 427 SCRA 8]
or retirement [Re: Complaint Filed by Atty. Francis Allan A. Rubio on the Alleged Falsification of Public Documents
and Malversation of Public Funds, A.M. No. 2004-17-SC, 27 September 2004; Caja v. Nanquil, A.M. No. P-04-1885,
13 September 2004] neither warrants the dismissal of the administrative complaint filed against him while he was
still in the service [Tuliao v. Ramos, A.M. No. MTJ-95-1065, 348 Phil. 404, 416 (1998), citing Perez v. Abiera, A.C.
No. 223-J, 11 June 1975, 64 SCRA 302; Secretary of Justice v. Marcos, A.C. No. 207-J, 22 April 1977, 76 SCRA 301]
nor does it render said administrative case moot and academic [Sy Bang v. Mendez, 350 Phil. 524, 533 (1998)]. The
jurisdiction that was this Court’s at the time of the filing of the administrative complaint was not lost by the mere
fact that the respondent public official had ceased in office during the pendency of his case [Flores v. Sumaljag, 353
Phil. 10, 21 (1998)]. Respondent’s resignation does not preclude the finding of any administrative liability to which
he shall still be answerable [OCA v. Fernandez, A.M. No. MTJ-03-1511, 20 August 2004]. [emphases and
underscoring supplied)

However, the facts of those cases are not entirely applicable to the present case. In the above-cited cases, the
Court found that the public officials – subject of the administrative cases – resigned, either to prevent the
continuation of a case already filed42 or to pre-empt the imminent filing of one.43 Here, neither situation obtains.

The Ombudsman’s general assertion that Andutan pre-empted the filing of a case against him by resigning, since
he "knew for certain that the investigative and disciplinary arms of the State would eventually reach him" 44 is
unfounded. First, Andutan’s resignation was neither his choice nor of his own doing; he was forced to resign.
Second, Andutan resigned from his DOF post on July 1, 1998, while the administrative case was filed on September
1, 1999, exactly one (1) year and two (2) months after his resignation. The Court struggles to find reason in the
Ombudsman’s sweeping assertions in light of these facts.

What is clear from the records is that Andutan was forced to resign more than a year before the Ombudsman filed
the administrative case against him. Additionally, even if we were to accept the Ombudsman’s position that
Andutan foresaw the filing of the case against him, his forced resignation negates the claim that he tried to
prevent the filing of the administrative case.

Having established the inapplicability of prevailing jurisprudence, we turn our attention to the provisions of
Section VI of CSC Memorandum Circular No. 38. We disagree with the Ombudsman’s interpretation that "[a]s long
as the breach of conduct was committed while the public official or employee was still in the service x x x a public
servant’s resignation is not a bar to his administrative investigation, prosecution and adjudication." 45 If we agree
with this interpretation, any official – even if he has been separated from the service for a long time – may still be
subject to the disciplinary authority of his superiors, ad infinitum. We believe that this interpretation is
inconsistent with the principal motivation of the law – which is to improve public service and to preserve the
public’s faith and confidence in the government, and not the punishment of the public official
concerned.46 Likewise, if the act committed by the public official is indeed inimical to the interests of the State,
other legal mechanisms are available to redress the same.

The possibility of imposing

accessory penalties does not
negate the Ombudsman’s lack
of jurisdiction.

The Ombudsman suggests that although the issue of Andutan’s removal from the service is moot, there is an
"irresistible justification" to "determine whether or not there remains penalties capable of imposition, like bar
from re-entering the public service and forfeiture of benefits."47 Otherwise stated, since accessory penalties may
still be imposed against Andutan, the administrative case itself is not moot and may proceed despite the
inapplicability of the principal penalty of removal from office.

We find several reasons that militate against this position.

First, although we have held that the resignation of an official does not render an administrative case moot and
academic because accessory penalties may still be imposed, this holding must be read in its proper context. In
Pagano v. Nazarro, Jr.,48 indeed, we held:

A case becomes moot and academic only when there is no more actual controversy between the parties or no
useful purpose can be served in passing upon the merits of the case [Tantoy, Sr. v. Abrogar, G.R. No. 156128, 9
May 2005, 458 SCRA 301, 305]. The instant case is not moot and academic, despite the petitioner’s separation
from government service. Even if the most severe of administrative sanctions - that of separation from service -
may no longer be imposed on the petitioner, there are other penalties which may be imposed on her if she is later
found guilty of administrative offenses charged against her, namely, the disqualification to hold any government
office and the forfeiture of benefits. [emphasis and underscoring supplied]

Reading the quoted passage in a vacuum, one could be led to the conclusion that the mere availability of accessory
penalties justifies the continuation of an administrative case. This is a misplaced reading of the case and its ruling.

Esther S. Pagano – who was serving as Cashier IV at the Office of the Provincial Treasurer of Benguet – filed her
certificate of candidacy for councilor four days after the Provincial Treasurer directed her to explain why no
administrative case should be filed against her. The directive arose from allegations that her accountabilities
included a cash shortage of ₱1,424,289.99. She filed her certificate of candidacy under the pretext that since she
was deemed ipso facto resigned from office, she was no longer under the administrative jurisdiction of her
superiors. Thus, according to Pagano, the administrative complaint had become moot.

We rejected Pagano’s position on the principal ground "that the precipitate resignation of a government employee
charged with an offense punishable by dismissal from the service does not render moot the administrative case
against him. Resignation is not a way out to evade administrative liability when facing administrative
sanction."49Our position that accessory penalties are still imposable – thereby negating the mootness of the
administrative complaint – merely flows from the fact that Pagano pre-empted the filing of the administrative case
against her. It was neither intended to be a stand-alone argument nor would it have justified the continuation of
the administrative complaint if Pagano’s filing of candidacy/resignation did not reek of irregularities. Our factual
findings in Pagano confirm this, viz.:

At the time petitioner filed her certificate of candidacy, petitioner was already notified by the Provincial Treasurer
that she needed to explain why no administrative charge should be filed against her, after it discovered the cash
shortage of ₱1,424,289.99 in her accountabilities. Moreover, she had already filed her answer. To all intents and
purposes, the administrative proceedings had already been commenced at the time she was considered separated
from service through her precipitate filing of her certificate of candidacy. Petitioner’s bad faith was manifest when
she filed it, fully knowing that administrative proceedings were being instituted against her as part of the
procedural due process in laying the foundation for an administrative case.50 (emphasis and underscoring
supplied)1avvphil

Plainly, our justification for the continuation of the administrative case – notwithstanding Pagano’s resignation –
was her "bad faith" in filing the certificate of candidacy, and not the availability of accessory penalties.

Second, we agree with the Ombudsman that "fitness to serve in public office x x x is a question of transcendental
[importance]51" and that "preserving the inviolability of public office" compels the state to prevent the "re-entry
[to] public service of persons who have x x x demonstrated their absolute lack of fitness to hold public
office."52However, the State must perform this task within the limits set by law, particularly, the limits of
jurisdiction. As earlier stated, under the Ombudsman’s theory, the administrative authorities may exercise
administrative jurisdiction over subordinates ad infinitum; thus, a public official who has validly severed his ties
with the civil service may still be the subject of an administrative complaint up to his deathbed. This is contrary to
the law and the public policy behind it.

Lastly, the State is not without remedy against Andutan or any public official who committed violations while in
office, but had already resigned or retired therefrom. Under the "threefold liability rule," the wrongful acts or
omissions of a public officer may give rise to civil, criminal and administrative liability. 53 Even if the Ombudsman
may no longer file an administrative case against a public official who has already resigned or retired, the
Ombudsman may still file criminal and civil cases to vindicate Andutan’s alleged transgressions. In fact, here, the
Ombudsman – through the FFIB – filed a criminal case for Estafa and violations of Section 3(a), (e) and (j) of the
Anti-Graft and Corrupt Practices Act against Andutan. If found guilty, Andutan will not only be meted out the
penalty of imprisonment, but also the penalties of perpetual disqualification from office, and confiscation or
forfeiture of any prohibited interest. 54

Conclusion

Public office is a public trust. No precept of administrative law is more basic than this statement of what
assumption of public office involves. The stability of our public institutions relies on the ability of our civil servants
to serve their constituencies well.
While we commend the Ombudsman’s resolve in pursuing the present case for violations allegedly committed by
Andutan, the Court is compelled to uphold the law and dismiss the petition. Consistent with our holding that
Andutan is no longer the proper subject of an administrative complaint, we find no reason to delve on the
Ombudsman’s factual findings.

WHEREFORE, we DENY the Office of the Ombudsman’s petition for review on certiorari, and AFFIRM the decision
of the Court of Appeals in CA-G.R. SP No. 68893, promulgated on July 28, 2004, which annulled and set aside the
July 30, 2001 decision of the Office of the Ombudsman, finding Uldarico P. Andutan, Jr. guilty of Gross Neglect of
Duty.

No pronouncement as to costs.

January 25, 2016

G.R. No. 198140

IA1 ERWIN L. MAGCAMIT, Petitioner,

vs.
INTERNAL AFFAIRS SERVICE - PHILIPPINE DRUG ENFORCEMENT AGENCY, as represented by SI V ROMEO M.
ENRIQUEZ AND DIRECTOR GENERAL DIONISIO R. SANTIAGO, Respondents.

DECISION

BRION, J.:

We resolve the petition for review on certiorari under Rule 45 of the Rules of Court1 filed by IA1 Erwin L.
Magcamit (Magcamit) from the March 17, 2011 decision 2 and the August 9, 2011 Resolution3 of the Court of
Appeals (CA) in CA-G.R. SP No. 108281. The CA upheld the March 17, 2009 decision of the Civil Service Commission
(CSC) denying Magcamit's appeal from the May 20, 2008 memorandum of the Internal Affairs Service of the
Philippine Drug Enforcement Agency (JAS-PDEA), which found Magcamit guilty of grave misconduct and,
consequently, recommending his dismissal from the service.

THE FACTUAL ANTECEDENTS

In a letter dated April 13, 2008, addressed to Director General Dionisio R. Santiago, a person named Delfin gave
information about an alleged extortion done to his mother by Magcamit and other PDEA agents. The PDEA agents
denied the irregularities imputed to them and maintained that the letter-complaint was made only to destroy their
reputation.

On May 5, 2008, Magcamit and his co-agents, namely, IO3 Carlo Aldeon, IO2 Renato Infante, IO2 Ryan Alfaro, and
IO2 Apolinario Mationg, Jr., were formally charged with Grave Misconduct for demanding and/or obtaining
P200,000.00 from Luciana M. Jaen (Jaen) in exchange for her release after she was apprehended in a buy-bust
operation in Lipa City. After they had submitted their Answer, their case was submitted for recommendation and
action.

In a memorandum dated May 20, 2008, Special Investigator V Romeo M. Enriquez (SI V Enriquez) found Magcamit
and his co-agents liable for grave misconduct and recommended that they be dismissed from the civil service.
Accordingly, they were dismissed on June 5, 2008.
SI V Enriquez gave credence to Jaen’s narration of events that when she sought help from the team leader of the
buy-bust team, she was referred to SPO1 Peter Sistemio (SPO1 Sistemio) as the person who would facilitate her
release; that SPO1 Sistemio bluntly demanded money in exchange; that she had initially offered P50,000.00 but
SPO1 Sistemio rejected it outright; and that, eventually, they agreed on P200,000.00.

After the agreed monetary consideration was produced, the PDEA agents allegedly instructed Jaen’s son, Delfin, to
wait at the ATM machine outside PDEA. Jaen still remained in detention after a lapse of several hours.

The narration was reinforced by the sworn statements dated April 15, 2008 and April 17, 2008, of Compliance
Investigator I Dolorsindo M. Paner (CI Paner) who recalled that IO2 Renato Infante (IO2 Infante) told him to meet
him at the office for an important matter about their operation; and that when IO2 Infante arrived, he handed the
money to CI Paner who then counted it on the spot. This incident was allegedly captured by a surveillance camera.

On July 10, 2008, Magcamit filed his motion for reconsideration arguing that the IAS-PDEA committed errors of law
and/or irregularities prejudicial to his interest; its decision, too, was not supported by the evidence on record.

Aside from the procedural lapses Magcamit claimed the IAS-PDEA had committed, he raised the fact that his name
never came up in the sworn statements submitted to SI V Enriquez. Moreover, he argued that the application of
the "doctrine of implied conspiracy" was misplaced because the evidence on record did not show any act showing
that he participated in the alleged extortion.

On July 23, 2008, SI V Enriquez denied the motion for reconsideration of Magcamit and his co-agents as they had
been duly afforded administrative due process and had been given a fair and reasonable opportunity to explain
their side. He added that the absence of a preliminary investigation was not fatal to their case. Lastly, he
maintained that direct proof is not necessary to establish conspiracy as long as it is shown that the parties
demonstrate they concur with the criminal design and its objective.

Magcamit responded by filing a notice of appeal and elevating his case to the CSC.

In its March 17, 2009 decision, the CSC denied Magcamit’s appeal and affirmed his dismissal from the civil service.
It ruled that administrative tribunals exercising quasi-judicial powers – such as the IAS-PDEA – are unfettered by
the rigidity of certain procedural requirements especially when due process has been fundamentally and
essentially observed. It found that Magcamit was positively identified by CI Paner in his sworn statement as the
person who identified the members of the group who received their respective shares from the P200,000.00, thus,
establishing his participation in the extortion. The CSC noted that Magcamit failed to controvert this allegation
against him.

Reiterating the grounds he relied upon in his appeal to the CSC, Magcamit filed a petition for review under Rule 43
with the CA, imputing error on the part of the CSC in affirming his dismissal from the service.

THE CA DECISION

In its March 17, 2011 decision, the CA denied the petition for review and upheld the March 17, 2009 CSC decision.

The CA held that the CSC, in investigating complaints against civil servants, is not bound by technical rules of
procedure and evidence applicable in judicial proceedings; that rules of procedure are to be construed liberally to
promote their objective and to assist the parties in obtaining a just, speedy, and inexpensive determination of their
respective claims and defenses.
The CA found that the CSC correctly appreciated CI Paner’s sworn statement which described Magcamit’s link to
the extortion. The CA said that apart from his bare and self-serving claim, Magcamit failed to show that CI Paner
was actuated by ill motive or hate in imputing a serious offense to him.

On August 9, 2011, the CA denied Magcamit’s motion for reconsideration; hence, the present petition for review
on certiorari before this Court.

THE PETITION

Magcamit filed the present petition on the following grounds:

1. his right to due process was denied because gross irregularities attended the administrative
investigation conducted by the IAS-PDEA; and

2. the evidence on record does not support his dismissal.

Magcamit contends that the anonymous letter-complaint of a certain Delfin should not have been given due
course as it was not corroborated by any documentary or direct evidence and there was no obvious truth to it.
Worse, the letter-complaint had no narration of relevant and material facts showing the acts or omission allegedly
committed by Magcamit and his co-agents. Further, the letter-complaint only referred to him as "Erwin" and did
not specifically identify him.

Magcamit claims that he was deprived of his right to seek a formal investigation because the IAS-PDEA deliberately
failed to inform him of this right.

Magcamit questions how the IAS-PDEA never presented him with pieces of evidence – specifically CI Paner’s sworn
statement – that were considered against him. He emphasizes that the CSC and the CA affirmed his dismissal
based on an affidavit of complaint executed by CI Paner on May 7, 2008, that was only attached to the IAS-PDEA’s
comment before the CSC.

As to his alleged participation in the extortion, Magcamit alleges that he never had any discussion with CI Paner
about each agent’s share in the P200,000.00. He argues that he could not have refuted the allegation against him
since he was not even aware of CI Paner’s sworn statement until the case was brought up before the CSC.

Magcamit claims support for his case after the dismissal of the criminal complaint filed against him and his co-
agents. In its June 18, 2010 resolution, the Quezon City Prosecutor’s Office found the evidence against them
insufficient to prove that they requested or received any money from Jaen.

Finally, Magcamit maintains that the purported surveillance video is inadmissible as evidence because it was not
authenticated nor shown to him.

OUR RULING

We GRANT the present petition because Magcamit’s dismissal was unsupported by substantial evidence.

Although Magcamit assails that the letter-complaint should not have been entertained to begin with as it was not
in accord with the Revised Rules on Administrative Cases in the Civil Service (RACCS),4 we do not find any need to
dwell on this point. The administrative complaint was initiated when Jaen and Delfin executed sworn statements
and filed them with the IAS-PDEA. As the CA correctly pointed out, the letter-complaint did not, by itself,
commence the administrative proceedings against Magcamit; it merely triggered a fact-finding investigation by the
IAS-PDEA. Accordingly, these sworn statements – together with the letter-complaint – were used as pieces of
evidence to build a prima facie case for extortion warranting a formal charge for grave misconduct.

Administrative determinations of contested cases are by their nature quasi-judicial; there is no requirement for
strict adherence to technical rules that are observed in truly judicial proceedings. 5 As a rule, technical rules of
procedure and evidence are relaxed in administrative proceedings in order "to assist the parties in obtaining just,
speedy and inexpensive determination of their respective claims and defenses."6 By relaxing technical rules,
administrative agencies are, thus, given leeway in coming up with a decision.

Nonetheless, in deciding disciplinary cases pursuant to their quasi-judicial powers, administrative agencies must
still comply with the fundamental principle of due process. Administrative tribunals exercising quasi-judicial
powers are unfettered by the rigidity of certain procedural requirements, subject to the observance of
fundamental and essential requirements of due process in justiciable cases presented before them. 7

Due process in administrative cases, in essence, is simply an opportunity to explain one’s side or to seek a
reconsideration of the action or ruling. For as long as the parties were given fair and reasonable opportunity to be
heard before judgment was rendered, the demands of due process were sufficiently met. 8

The cardinal primary rights and principles in administrative proceedings that must be respected are those outlined
in the landmark case of Ang Tibay v. Court of Industrial Relations,9 quoted below:

(1) The first of these rights is the right to a hearing, which includes the right of the party interested or
affected to present his own case and submit evidence in support thereof.

(2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to
establish the rights which he asserts but the tribunal must consider the evidence presented.

(3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity
which cannot be disregarded, namely, that of having something to support its decision. A decision with
absolutely nothing to support it is a nullity, a place when directly attached.

(4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be
substantial. "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the
record and disclosed to the parties affected.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent
consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in
arriving at a decision.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a
manner that the parties to the proceeding can know the various issues involved, and the reasons for the
decisions rendered. The performance of this duty is inseparable from the authority conferred upon it.

The first of the enumerated rights pertains to the substantive rights of a party at the hearing stage of the
proceedings.10

The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are reinforcements of the right to
a hearing and are the inviolable rights applicable at the deliberative stage, as the decision maker decides on the
evidence presented during the hearing.11 These standards set forth the guiding considerations in deliberating on
the case and are the material and substantial components of decision making.12

Finally, the last requirement, relating to the form and substance of the decision of a quasi-judicial body, further
complements the hearing and decision-making due process rights and is similar in substance to the constitutional
requirement that a decision of a court must state distinctly the facts and the law upon which it is based. 13

At the hearing stage, while Magcamit was never afforded a formal investigation, we have consistently ruled that
there is no violation of procedural due process even if no formal or trial-type hearing was conducted, where the
party was given a chance to explain his side of the controversy.

Before the IAS-PDEA, Magcamit had the opportunity to deny and controvert the complaint against him when he
filed his reply to the letter-complaint and his answer to the formal charge. Dissatisfied with the IAS-PDEA’s
decision, he elevated his case to the CSC which likewise found him guilty of conspiring with his co-agents,
rendering him liable for gross misconduct. From these developments, it can hardly be said that the IAS-PDEA and
the CSC denied Magcamit his opportunity to be heard.

In addition, Magcamit was duly represented by counsel who could properly apprise him of what he is entitled to
under law and jurisprudence.1âwphi1 Thus, he cannot claim that he was deprived of his right to a formal hearing
because the IAS-PDEA failed to inform him of such right.

With the issue on due process at the hearing stage resolved, we now move on to discuss the merits of the petition
before us.

Claiming that he was not involved in the extortion, Magcamit argues that the CSC and the CA misappreciated the
facts when they considered the affidavit of complaint CI Paner executed on May 7, 2008, as substantial evidence
supporting the conclusion that he conspired with his co-agents. This issue involves a question of fact as there is
need for a calibration of the evidence, considering mainly the credibility of witnesses and the existence and the
relevancy of specific surrounding circumstances, their relation to one another and to the whole, and the
probabilities of the situation.14

In cases brought before us via a petition for review on certiorari, we are limited to the review of errors of
law.15 We, however, may review the findings of fact when they fail to consider relevant facts that, if properly taken
into account, would justify a different conclusion or when there is serious ground to believe that a possible
miscarriage of justice would result.16

We recall that only the April 17, 2008 affidavit of Jaen and the April 17, 2008 affidavit of Delfin were attached to
the formal charge for grave misconduct against Magcamit and four (4)17 other members of the PDEA‒Special
Enforcement Service (SES). This formal charge required them to submit their respective position papers on the
administrative charge. Notably, both affidavits never mentioned the name of Magcamit.

SI V Enriquez’s memorandum/decision dated May 20, 2008 – which found Magcamit and his four co-accused guilty
of grave misconduct, and recommended their dismissal from the service – relied on the affidavits of CI Paner dated
April 15, 2008 and April 17, 2008, respectively, which it considered to have "reinforced the allegations" of Jaen and
her son, Delfin. CI Paner’s two affidavits were never shown to Magcamit. At any rate, CI Paner’s two affidavits,
like the affidavits of Jaen and Delfin, did not mention Magcamit.

Probably realizing that the April 17, 2008 affidavit of Jaen, the April 17, 2008 affidavit of Delfin, and the April 15,
2008 and April 17, 2008 affidavits of CI Paner did not mention the involvement of Magcamit in the extortion, the
CSC’s Resolution No. 090431 dated March 17, 2009, used as basis another affidavit of CI Paner (dated May 7, 2008)
in affirming the May 20, 2008 decision of the IAS-PDEA. Curiously, the CSC termed this affidavit as CI Paner’s
‘original affidavit’ although it was the third affidavit that CI Paner had executed.

The evidence on record shows that CI Paner executed three (3) affidavits with different dates, 18 relating to the
manner the members of the PDEA-SES tried to give him a share of the P200,000.00 they extorted from Jaen. It
must be noted, however, that it was only the Affidavit of Complaint dated May 7, 2008, that linked Magcamit to
the scheme. Curiously, this affidavit was never mentioned, despite being a more complete narration of what
transpired, in SI V Enriquez’ recommendation dated May 20, 2008. In fact, the investigating officer referred only to
the affidavits dated April 15, 2008 and April 17, 2008. 19

Surprisingly, the CSC ruled that the statements of CI Paner in his May 7, 2008 affidavit "was never controverted by
Magcamit" although the latter had not been furnished this document. It was only when Magcamit requested for
certified true copies of the Comment and the other documents submitted by the IAS-PDEA to the CSC that he
discovered the existence of Paner’s May 7, 2008 affidavit.

As the CSC did, the CA ruled that Magcamit participated in the extortion on the basis of Paner’s May 7, 2008 alone.
Accordingly, it affirmed the CSC’s resolution.1âwphi1

Under these circumstances, the CA erred in affirming the CSC’s dismissal of the respondent on the basis of Paner’s
May 7, 2008 affidavit – a document that was not part of the proceedings before the IAS-PDEA.

Given how the evidence against him came out, we find that Magcamit could not have adequately and fully
disputed the allegations against him since during the administrative investigation he was not properly apprised of
all the evidence against him. We point out that Magcamit could not have refuted the May 7, 2008 affidavit of
Paner, which was the sole basis of the CSC’s and the CA’s finding of Magcamit’s liability; notably, the formal charge
requiring him and his co-accused to file their position papers was dated May 5, 2008. Corollarily, Magcamit and his
co-agents were not even furnished a copy of the affidavits of CI Paner dated April 15, 2008 and April 17, 2008
before the recommendation for dismissal came out. Magcamit was thus blindsided and forced to deal with pieces
of evidence he did not even know existed.

Thus, the requirement that "[t]he decision must be rendered on the evidence presented at the hearing, or at least
contained in the record AND disclosed to the parties affected," was not complied with. Magcamit was not
properly apprised of the evidence presented against him, which evidence were eventually made the bases of the
decision finding him guilty of grave misconduct and recommending his dismissal.

Although, in the past, we have held that the right to due process of a respondent in an administrative case is not
violated if he filed a motion for reconsideration to refute the evidence against him, the present case should be
carefully examined for purposes of the application of this rule. Here, the evidence of Magcamit’s participation was
made available to him only after he had elevated the case to the CSC. Prior to that, or when the IAS-PDEA came up
with the decision finding him guilty of gross misconduct, there was no substantial evidence proving Magcamit was
even involved.

We consider, too, that even if we take into account CI Paner’s May 7, 2008 affidavit, we find this document to be
inadequate to hold – even by standards of substantial evidence – that Magcamit participated in the PDEA’s
extortion activities.

We note that the CSC and the CA linked Magcamit to the alleged extortion in paragraph 13 of CI Paner' s May 7,
2008 affidavit of complaint, which reads:

13. That pretending nothing had happened and yet projecting to the group that I am a bit apprehensive as to the
evident inequality in the sharing of the extorted money from subject Jaen, I was able to talk with Agent Erwin
Magcamit, one of the members of the arresting team, and asked the latter as to how the group came up with the
Php21,500.00 sharing for each member out of the Php200,000.00; from which Agent Magcamit simply said to me
that such was the sharing and everybody except me seemed to have consented; in addition thereto, Agent
Magcamit vividly mentioned all other members who got their share of the Php21,500.00, namely, [1] Carlo S.
Aldeon, [2] P03 Emerson Adaviles, [3], P02 Reywin Bariuad, [4] 102 Renato Infante, [S] 102 Apolinario Mationg,
[6] 102 Ryan Alfaro, and [7] P03 Peter Sistemio.20

We discern no showing from this allegation that Magcamit extorted money from Jaen, or that he was among those
who took part in the division of the money allegedly extorted from Jaen. For conspiracy to exist, it must be proven
or at least inferred from the acts of the alleged perpetrator before, during, and after the commission of the crime.
It cannot simply be surmised that conspiracy existed because Magcamit was part of the team that took part in the
buy-bust operation which resulted in Jaen's arrest. In other words, respondents failed to pinpoint Magcamit's
participation in the extortion that would make him administratively liable.

After evaluating the totality of evidence on record, we find that the records are bereft of substantial evidence to
support the conclusion that Magcamit should be held administratively liable for grave misconduct; Magcamit was
dismissed from the service based on evidence that had not been disclosed to him. By affirming this dismissal, the
CA committed a grave reversible error.

WHEREFORE, premises considered, we GRANT the present petition.1avvphi1 The March 17, 2011 decision and the
August 9, 2011 resolution of the Court of Appeals in CA-G.R. SP No. 108281 are hereby REVERSED and SET ASIDE.
The Philippine Drug Enforcement Agency is ORDERED to reinstate IA1 Erwin L. Magcamit to his previous position
without loss of seniority rights and with full payment of his salaries, backwages, and benefits from the time of his
dismissal from the service up to his reinstatement.

SO ORDERED.

A.M. No. RTJ-10-2247 March 2, 2011

(Formerly OCA I.P.I. No. 09-3143-RTJ)

JOCELYN DATOON, Complainant,

vs.
JUDGE BETHANY G. KAPILI, Presiding Judge of Regional Trial Court, Branch 24, Maasin City, Southern
Leyte, Respondent.

DECISION

MENDOZA, J.:

Before this Court is a verified Complaint1 filed on March 17, 2009, by complainant Jocelyn Datoon (Datoon)
charging respondent Judge Bethany G. Kapili (Judge Kapili), Presiding Judge of Regional Trial Court Branch 24,
Maasin City (RTC), with Conduct Unbecoming a Member of the Judiciary, and Gross Misconduct amounting to
Violation of the Code of Judicial Conduct, relative to an incident which occured at the Salvacion Oppus Yñiguez
Memorial Hospital (SOYMH) in Maasin City, Southern Leyte.

On August 16, 2010, the administrative complaint was referred to the Executive Justice of the Court of Appeals,
Cebu Station, for raffle among the Associate Justices thereat for investigation, report and recommendation in
accordance with the recommendation of the Office of the Court Administrator (OCA).
Datoon testified on her own behalf but presented no other witnesses. She also submitted the following
documents: her verified Complaint to which were attached the Incident Report of the guard-on-duty, her Affidavit,
the Affidavit of her father, Jose Gagan; her verified Reply;2 and verified Sur-Rejoinder.3

Judge Kapili also testified on his own behalf and presented, as additional witnesses, Judge Ma. Daisy Paler-
Gonzales (Judge Paler-Gonzales), Efledo Hernandez (Hernandez), and Rodulfo Orit (Orit). He also submitted the
following documents: the Affidavit4 of Judge Paler-Gonzales, the Affidavit5 of Hernandez and the Affidavit6 of Orit.

The facts as borne out by the records and findings of the Investigating Justice are as follows:

Datoon averred that on December 11, 2008, at around 3:00 o’clock in the morning, she was in the labor room of
SOYMH waiting to give birth. She was accompanied by her father, Jose Gagan (Gagan). Suddenly, they were
disturbed by the appearance of Judge Kapili who appeared to her to be drunk as his face was reddish and his eyes
were sleepy. She noticed a gun at his waist over his tucked-in t-shirt and she became nervous. Judge Kapili entered
the labor room calling "Lor, Lor," looking for his wife, Dr. Lorna Kapili (Dr. Kapili), a practicing obstetrician-
gynecologist. Not seeing his wife around, Judge Kapili left and entered the delivery room, but returned to the labor
room a few minutes later. Datoon was crying, as she was already having labor pains at the time. Judge Kapili then
pointed his gun at her and asked "What’s your problem?" This caused her to start crying hysterically while saying
"Please don’t sir, have pity." At this time, she was lying in bed while Judge Kapili was standing at the left side of the
bed near her head. At that moment, a woman entered the room and informed Judge Kapili of the whereabouts of
Dr. Kapili, after which he left. Datoon claimed that because of this incident, she was unable to go through normal
delivery of her baby and had to undergo caesarian operation instead. Her testimony appeared in the records as
follows:

Q: When you saw the man who was carrying a gun, what was your reaction?

A: I was frightened.

Q: You said earlier he went inside the delivery room. Before he went inside the labor room and then he went
inside the delivery room. After the delivery room, what happened next?

A: A little later, he went inside the labor room.

Q: What happened next when the man went back inside the labor room?

A: I looked at the man and he pointed the gun at me and uttered the words, "Unsa man, ha?" So I pleaded, "Ayaw
tawon, sir, maluoy ka." Then I heard someone saying, "Dra. was in the other room."

Q: After uttering those words, "Unsa man, ha," your reply was?

A: "Ayaw tawon, sir, maluoy ka."

Q: When the man pointed the gun at you, where were you then?

A: I was in bed, lying.

Q: Where was the man positioned when he pointed the gun at you?

A: He was standing at the left side of the bed near my head.

Q: When the man pointed the gun at you and you said, "Ayaw tawon, sir, maluoy ka," what happened next?

A: The gun was still pointing at me when I heard somebody said, "Si doctora, toa sa pikas nga room."

Q: When you heard the voice saying, "si doctora, toa sa pikas nga room," what happened next?

A: He went outside.

Q: You said your father was inside the labor room. Where was your father at that time?

A: He was opposite my bed.7

In his Comment,8 Judge Kapili admitted being at SOYMH on December 11, 2008, but denied having a gun. He
related that he received several phone calls from a woman patient who was looking for his wife, Dr. Lorna Kapili.
He tried to contact his wife by telephone, but she failed to answer, prompting him to proceed to the hospital to
look for her with his security escort, PO2 Jimmy Ganosa (PO2 Ganosa), whose Affidavit9 was attached to the
Comment. At the hospital, Judge Kapili instructed PO2 Ganosa to proceed to his mother-in-law’s house to check if
his wife was there. He then proceeded to the labor room where he saw Datoon who appeared to be in pain and
was surprised by his appearance. He was irked by her reaction so he approached her to ask what her problem was.

Judge Kapili further asserted that he did not have a gun and was only carrying a clutch bag, which Datoon might
have mistaken as containing a firearm. He also stated that Gagan was not in the labor room and the only persons
present were Datoon and a midwife named Ermelinda Costillas, who was the woman who informed him that his
wife was resting in the doctors’ lounge and whose Affidavit10 was attached to the Comment. He was unaware that
he had created any disturbance as he had not received any notice of such until more than four months later, or on
April 16, 2009, when he received a copy of the Complaint.

Judge Kapili was of the belief that the complaint might have been orchestrated and financed by the hospital
administrator, Cielveto Almario (Almario), in retaliation for the various letters he wrote to the hospital
management and to various government agencies criticizing the services of the hospital.

In her verified Reply, Datoon stated that Judge Kapili came from an influential family and had been sending
emissaries to convince her to drop the complaint. She noted that Judge Kapili did not make any categorical denial
of her claim that he was drunk on the night of the incident.

In his Rejoinder, Judge Kapili claimed that Datoon told a co-worker, Flordeliza Marcojos (Marcojos), that he did not
really point a gun at her and that Datoon was made to sign a prepared complaint in exchange for employment in
the government office in the Province of Southern Leyte. He admitted sending persons to contact Datoon and her
father, but explained that it was for the purpose of meeting them, and not to harass or bribe them. He added that,
according to Orit, it was Gagan who insinuated that they be paid ₱150,000.00 for the dropping of the case. The
affidavits of Marcojos11 and Orit12 were attached to his Rejoinder.

In her Verified Sur-Rejoinder, Datoon denied entering into any agreement with the hospital administrator, Almario,
in exchange for the filing of the complaint. She insisted that she fully understood the allegations in the complaint
and denied the assertion that she was only trying to extort money from Judge Kapili.

Judge Paler-Gonzales of RTC, Branch 25, Maasin City, testified that she went to see Datoon in the Provincial Library
where the latter was working at the time; that Datoon told her that the Complaint and Affidavit were already
prepared by Almario; and that she could not be certain if what was stated in her affidavit was true because she
was experiencing labor pains at that time.
In support of Judge Kapili’s position, Hernandez, Executive Assistant to the Governor of Maasin City, stated in his
Affidavit and testified that he talked to Datoon upon the Governor’s instructions to verify the report that certain
persons were extorting money from Judge Kapili. During their conversation, Datoon was said to have stated that
Judge Kapili was carrying a clutch bag but never pointed a gun at her and she did not know who prepared the
affidavit for it was only brought to her for her signature.

Orit,13 a Kagawad of Brgy. Mantahan, Maasin City, testified that he went to the house of Datoon’s father, Gagan, to
convey Judge Kapili’s wish to talk with them. At said meeting, Gagan told him that if Judge Kapili had ₱150,000.00,
then they would meet him.lawphi1

On February 7, 2011, Investigating Justice Portia Alino-Hormachuelos submitted her Final Report and
Recommendation,14 wherein she recommended the dismissal of the complaint for lack of merit after finding that
Datoon failed to prove her charges both by clear, convincing and satisfactory evidence and beyond reasonable
doubt.

The Court adopts the findings and recommendation of the Investigating Justice.

Administrative charges against judges have been viewed by this Court with utmost care, as the respondent stands
to face the penalty of dismissal or disbarment. Thus, proceedings of this character are in their nature highly penal
in character and are to be governed by the rules of law applicable to criminal cases. The charges in such case must,
therefore, be proven beyond reasonable doubt.15

In light of the evidence submitted in this case, the Court is of the view that the charges against Judge Kapili were
not sufficiently substantiated by Datoon who has the burden of proof in administrative proceedings. 16 The
evidence presented was not sufficient to compel the Court to exercise its disciplinary powers over the respondent
judge as mandated under Article VIII, Section 6 of the 1987 Constitution. 17

Datoon’s testimony was uncorroborated. She failed to present any witness to support her charges. Although she
presented the affidavit of her father, Gagan, who allegedly witnessed the incident, she did not present him as a
witness to corroborate her testimony, or to refute Judge Kapili’s testimony that they had attempted to extort
money from him, despite the fact that he was present during the hearing. Neither did she present the old
woman18 who, she claimed, was also in the room at the time of the incident.

The Court cannot help but notice that Datoon’s testimony was also replete with inconsistencies. As to where the
gun was at the time Judge Kapili first entered the labor room, her Complaint19 and Affidavit20 stated that while she
"was waiting to give birth in the labor room of the hospital, a man, who was drunk and holding a gun suddenly
barged into the room looking for one Dr. Lorna Kapili." On the other hand, during her testimony, 21 she stated that
he was "carrying a gun on his waist" when he first entered the labor room. She further testified that Judge Kapili
was later holding a gun and pointing it at her when he came back into the labor room.

Furthermore, it was highly unlikely that her crying would have caused Judge Kapili to pull out his gun and point it at
her, considering that he knew he was in the labor room of the hospital where pregnant patients would be in labor
and understandably in pain. Datoon’s testimony is contradictory, inconsistent and contrary to human nature and
experience.

As to Judge Kapili’s alleged intoxicated state, Datoon only surmised that he was drunk because his face was flushed
and his eyes were sleepy.22 This was an unfounded conclusion. His sleepy eyes could be attributed to the fact that
it was 3:00 o’clock in the morning, while his reddish face could be explained by his natural coloration, as observed
by the Investigating Justice.23 Moreover, Datoon admitted that Judge Kapili did not smell of alcohol or liquor at the
time of the incident.24
Lastly, both Judge Paler-Gonzales25 and Hernandez26 testified that Datoon admitted to them that she signed the
Complaint and Affidavit without meeting the lawyers who prepared the same. Hernandez further bared that
Datoon admitted to him that Judge Kapili never pointed a gun at her. 27 On her part, Judge Paler-Gonzales testified
that Datoon admitted that she was not sure if the contents of her Complaint and Affidavit were true because she
was in pain at the time of the incident.28

Datoon failed to address these accusations as she was not presented for rebuttal. Section 26, Rule 130 of the Rules
of Evidence provides that admissions of a party may be given in evidence against him or her. Datoon’s admission
against her interest, as narrated by two credible and neutral witnesses, militates against the credibility of her
charges. The presumption is that no person would declare anything against himself unless such declaration were
true.29

From all the foregoing, it is clear that Datoon failed to prove her charges against Judge Kapili.

WHEREFORE, the complaint against Judge Bethany G. Kapili is DISMISSED.

SO ORDERED.

G.R. No. 176162 : October 9, 2012

CIVIL SERVICE COMMISSION, Petitioner, v. COURT OF APPEALS, DR. DANTE G. GUEV ARRA and ATTY. AUGUSTUS
F. CEZAR, Respondents.

G.R. No. 178845

ATTY. HONESTO L. CUEVA, Petitioner, v. COURT OF APPEALS, DR. DANTE G. GUEV ARRA and ATTY. AUGUSTUS F.
CEZAR, Respondents.

DECISION

MENDOZA, J.:

These are consolidated petitions for review under Rule 45 of the Revised Rules of Civil Procedure assailing the
December 29, 2006 Decision1ςrνll of the Court of Appeals (CA) in CA-G.R. SP No. 95293, entitled "Dr. Dante G.
Guevarra and Atty. Augustus Cezar v. Civil Service Commission and Atty. Honesto L. Cueva."

The Facts

Respondents Dante G. Guevarra (Guevarra) and Augustus F. Cezar (Cezar) were the Officer-in-Charge/President
and the Vice President for Administration, respectively, of the Polytechnic University of the Philippines
(PUP)2ςrνll in 2005.

On September 27, 2005, petitioner Honesto L. Cueva (Cueva), then PUP Chief Legal Counsel, filed an administrative
case against Guevarra and Cezar for gross dishonesty, grave misconduct, falsification of official documents,
conduct prejudicial to the best interest of the service, being notoriously undesirable, and for violating Section 4 of
Republic Act (R.A.) No. 6713.3ςrνll Cueva charged Guevarra with falsification of a public document, specifically the
Application for Bond of Accountable Officials and Employees of the Republic of the Philippines, in which the latter
denied the existence of his pending criminal and administrative cases. As the head of the school, Guevarra was
required to be bonded in order to be able to engage in financial transactions on behalf of PUP. 4ςrνll In his
Application for Bond of Accountable Officials and Employees of the Republic of the Philippines (General Form No.
58-A), he answered Question No. 11 in this wise:
11. Do you have any criminal or administrative records? NO. If so, state briefly the nature thereof NO. 5ςrνll

This was despite the undisputed fact that, at that time, both Guevarra and Cezar admittedly had 17 pending cases
for violation of Section 3(e) of R.A. No. 3019 before the Sandiganbayan.6ςrνll Cezar, knowing fully well that both
he and Guevarra had existing cases before the Sandiganbayan, endorsed and recommended the approval of the
application.7ςrνll

The respondents explained that they believed "criminal or administrative records" to mean final conviction in a
criminal or administrative case.8ςrνll Thus, because their cases had not yet been decided by the Sandiganbayan,
they asserted that Guevarra responded to Question No. 11 in General Form No. 58-A correctly and in good
faith.9ςrνll

On March 24, 2006, the Civil Service Commission (CSC) issued Resolution No. 060521 10ςrνll formally charging
Guevarra with Dishonesty and Cezar with Conduct Prejudicial to the Best Interest of the Service after a prima facie
finding that they had committed acts punishable under the Civil Service Law and Rules.

Subsequently, the respondents filed their Motion for Reconsideration and Motion to Declare Absence of Prima
Facie Case11ςrνll praying that the case be suspended immediately and that the CSC declare a complete absence of
a prima facie case against them. Cueva, on the other hand, filed an Urgent Ex-Parte Motion for the Issuance of
Preventive Suspension12ςrνll and an Omnibus Motion13ςrνll seeking the issuance of an order of preventive
suspension against Guevarra and Cezar and the inclusion of the following offenses in the formal charge against
them: Grave Misconduct, Falsification of Official Document, Conduct Prejudicial to the Best Interest of the Service,
Being Notoriously Undesirable, and Violation of Section 4 of R.A. No. 6713.

In Resolution No. 061141, dated June 30, 2006,14ςrνll the CSC denied the motion for reconsideration filed by the
respondents for being a non-responsive pleading, akin to a motion to dismiss, which was a prohibited pleading
under Section 16 of the Uniform Rules on Administrative Cases in the Civil Service Commission. 15ςrνll It also
denied Cuevas motion to include additional charges against the respondents. The CSC, however, placed Guevarra
under preventive suspension for ninety (90) days, believing it to be necessary because, as the officer-in-charge of
PUP, he was in a position to unduly influence possible witnesses against him.

Aggrieved, Guevarra and Cezar filed a petition for certiorari and prohibition before the CA essentially questioning
the jurisdiction of the CSC over the administrative complaint filed against them by Cueva. On December 29, 2006,
the CA rendered its Decision granting the petition and nullifying and setting aside the questioned resolutions of the
CSC for having been rendered without jurisdiction. According to the CA, Section 47, Chapter 7, Subtitle A, Title I,
Book V of Executive Order No. 292 (The Administrative Code of 1987), the second paragraph of which states that
heads of agencies and instrumentalities "shall have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction," bestows upon the Board of Regents the
jurisdiction to investigate and decide matters involving disciplinary action against respondents Guevarra and Cezar.
In addition, the CA noted that the CSC erred in recognizing the complaint filed by Cueva, reasoning out that the
latter should have exhausted all administrative remedies by first bringing his grievances to the attention of the PUP
Board of Regents.

Hence, these petitions.

THE ISSUE

In G.R. No. 176162, petitioner CSC raises the sole issue of:chanroblesvirtuallawlibrary

Whether or not the Civil Service Commission has original concurrent jurisdiction over administrative cases falling
under the jurisdiction of heads of agencies.
The same issue is among those raised by petitioner Cueva in G.R. No. 178845.

The Court agrees that the only question which must be addressed in this case is whether the CSC has jurisdiction
over administrative cases filed directly with it against officials of a chartered state university.

The Courts Ruling

The petitions are meritorious.

Both CSC and Cueva contend that because the CSC is the central personnel agency of the government, it has been
expressly granted by Executive Order (E.O.) No. 292 the authority to assume original jurisdiction over complaints
directly filed with it. The CSC explains that under the said law, it has appellate jurisdiction over all administrative
disciplinary proceedings and original jurisdiction over complaints against government officials and employees filed
before it by private citizens.16ςrνll Accordingly, the CSC has concurrent original jurisdiction, together with the PUP
Board of Regents, over the administrative case against Guevarra and Cezar and it can take cognizance of a case
filed directly with it, despite the fact that the Board of Regents is the disciplining authority of university employees.

Respondents Guevarra and Cezar, on the other hand, fully adopted the position of the CA in its questioned
decision and propounded the additional argument that the passage of R.A. No. 8292 has effectively removed from
the CSC the authority to hear and decide on cases filed directly with it.

CSC has jurisdiction over cases

filed directly with it, regardless of
who initiated the complaint

The CSC, as the central personnel agency of the government, has the power to appoint and discipline its officials
and employees and to hear and decide administrative cases instituted by or brought before it directly or on
appeal.17ςrνll Section 2(1), Article IX(B) of the 1987 Constitution defines the scope of the civil service:

The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original charters.

By virtue of Presidential Decree (P.D.) No. 1341,18ςrνll PUP became a chartered state university, thereby making it
a government-owned or controlled corporation with an original charter whose employees are part of the Civil
Service and are subject to the provisions of E.O. No. 292.19ςrνll

The parties in these cases do not deny that Guevarra and Cezar are government employees and part of the Civil
Service. The controversy, however, stems from the interpretation of the disciplinary jurisdiction of the CSC as
specified in Section 47, Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292:

SECTION 47. Disciplinary Jurisdiction. (1) The Commission shall decide upon appeal all administrative disciplinary
cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding
thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed
directly with the Commission by a private citizen against a government official or employee in which case it may
hear and decide the case or it may deputize any department or agency or official or group of officials to conduct
the investigation. The results of the investigation shall be submitted to the Commission with recommendation as
to the penalty to be imposed or other action to be taken.

(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have
jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under
their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty
days or fine in an amount not exceeding thirty days salary. In case the decision rendered by a bureau or office head
is appealable to the Commission, the same may be initially appealed to the department and finally to the
Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case
the same shall be executory only after confirmation by the Secretary concerned. [Emphases and underscoring
supplied]

While in its assailed decision, the CA conceded that paragraph one of the same provision abovequoted allows the
filing of a complaint directly with the CSC, it makes a distinction between a complaint filed by a private citizen and
that of an employee under the jurisdiction of the disciplining authority involved. The CA resolved that because
Cueva was then the Dean of the College of Law and the Chief Legal Counsel of PUP when he filed the complaint
with the CSC, he was under the authority of the PUP Board of Regents. Thus, it is the Board of Regents which had
exclusive jurisdiction over the administrative case he initiated against Guevarra and Cezar.

The Court finds itself unable to sustain the reading of the CA.

The issue is not novel.

The understanding by the CA of Section 47, Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292 which states that
"a complaint may be filed directly with the Commission by a private citizen against a government official or
employee" is that the CSC can only take cognizance of a case filed directly before it if the complaint was made by a
private citizen.

The Court is not unaware of the use of the words "private citizen" in the subject provision and the plain meaning
rule of statutory construction which requires that when the law is clear and unambiguous, it must be taken to
mean exactly what it says. The Court, however, finds that a simplistic interpretation is not in keeping with the
intention of the statute and prevailing jurisprudence. It is a well-established rule that laws should be given a
reasonable interpretation so as not to defeat the very purpose for which they were passed. As such, "a literal
interpretation is to be rejected if it would be unjust or lead to absurd results." 20ςrνll In Secretary of Justice v.
Koruga,21ςrνll the Court emphasized this principle and cautioned us on the overzealous application of the plain
meaning rule:

The general rule in construing words and phrases used in a statute is that in the absence of legislative intent to the
contrary, they should be given their plain, ordinary, and common usage meaning. However, a literal interpretation
of a statute is to be rejected if it will operate unjustly, lead to absurd results, or contract the evident meaning of
the statute taken as a whole. After all, statutes should receive a sensible construction, such as will give effect to
the legislative intention and so as to avoid an unjust or an absurd conclusion. Indeed, courts are not to give words
meanings that would lead to absurd or unreasonable consequences. 22ςrνll

A literal interpretation of E.O. 292 would mean that only private citizens can file a complaint directly with the CSC.
For administrative cases instituted by government employees against their fellow public servants, the CSC would
only have appellate jurisdiction over those. Such a plain reading of the subject provision of E.O. 202 would
effectively divest CSC of its original jurisdiction, albeit shared, provided by law. Moreover, it is clearly unreasonable
as it would be tantamount to disenfranchising government employees by removing from them an alternative
course of action against erring public officials.

There is no cogent reason to differentiate between a complaint filed by a private citizen and one filed by a member
of the civil service, especially in light of Section 12(11), Chapter 3, Subtitle A, Title I, Book V of the same E.O. No.
292 which confers upon the CSC the power to "hear and decide administrative cases instituted by or brought
before it directly or on appeal" without any qualification.
In the case of Camacho v. Gloria,23ςrνll the Court stated that "under E.O. No. 292, a complaint against a state
university official may be filed with either the universitys Board of Regents or directly with the Civil Service
Commission."24ςrνll It is important to note that the Court did not interpret the Administrative Code as limiting
such authority to exclude complaints filed directly with it by a member of the civil service.

Moreover, as early as in the case of Hilario v. Civil Service Commission, 25ςrνll the Court interpreted Section 47,
Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292 as allowing the direct filing with the CSC by a public official of a
complaint against a fellow government employee. In the said case, Quezon City Vice-Mayor Charito Planas directly
filed with the CSC a complaint for usurpation, grave misconduct, being notoriously undesirable, gross
insubordination, and conduct prejudicial to the best interest of the service against the City Legal Officer of Quezon
City. The CSC issued a resolution ruling that the respondent official should not be allowed to continue holding the
position of legal officer. In a petition to the Supreme Court, the official in question asserted that the City Mayor
was the only one who could remove him from office directly and not the CSC. The Court upheld the decision of the
CSC, citing the same provision of the Administrative Code:

Although respondent Planas is a public official, there is nothing under the law to prevent her from filing a
complaint directly with the CSC against petitioner. Thus, when the CSC determined that petitioner was no longer
entitled to hold the position of City Legal Officer, it was acting within its authority under the Administrative Code
to hear and decide complaints filed before it. 26ςrνll [Underscoring supplied]

It has been argued that Hilario is not squarely in point. 27ςrνll While it is true that the circumstances present in the
two cases are not identical, a careful reading of Hilario reveals that petitioner therein questioned the authority of
the CSC to hear the disciplinary case filed against him, alleging that the CSCs jurisdiction was only appellate in
nature. Hence, the reference to the abovequoted passage in Hilario is very appropriate in this case as respondents
herein pose a similar query before us.

It cannot be overemphasized that the identity of the complainant is immaterial to the acquisition of jurisdiction
over an administrative case by the CSC. The law is quite clear that the CSC may hear and decide administrative
disciplinary cases brought directly before it or it may deputize any department or agency to conduct an
investigation.

CSC has concurrent original jurisdiction

with the Board of Regents over
administrative cases

The Uniform Rules on Administrative Cases in the Civil Service28ςrνll (the Uniform Rules) explicitly allows the CSC
to hear and decide administrative cases directly brought before it:

Section 4. Jurisdiction of the Civil Service Commission. The Civil Service Commission shall hear and decide
administrative cases instituted by, or brought before it, directly or on appeal, including contested appointments,
and shall review decisions and actions of its offices and of the agencies attached to it.

Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final
authority to pass upon the removal, separation and suspension of all officers and employees in the civil service and
upon all matters relating to the conduct, discipline and efficiency of such officers and employees. [Emphases and
underscoring supplied]

The CA construed the phrase "the Civil Service Commission shall have the final authority to pass upon the removal,
separation and suspension of all officers and employees in the civil service" to mean that the CSC could only step in
after the relevant disciplinary authority, in this case the Board of Regents of PUP, had investigated and decided on
the charges against the respondents. Regrettably, the CA failed to take into consideration the succeeding section
of the same rules which undeniably granted original concurrent jurisdiction to the CSC and belied its suggestion
that the CSC could only take cognizance of cases on appeal:

Section 7. Jurisdiction of Heads of Agencies. Heads of Departments, agencies, provinces, cities, municipalities and
other instrumentalities shall have original concurrent jurisdiction, with the Commission, over their respective
officers and employees.29ςrνll [Emphasis supplied]

It was also argued that although Section 4 of the Uniform Rules is silent as to who can file a complaint directly with
the CSC, it cannot be construed to authorize one who is not a private citizen to file a complaint directly with the
CSC. This is because a rule issued by a government agency pursuant to its law-making power cannot modify,
reduce or enlarge the scope of the law which it seeks to implement. 30ςrνll

Following the earlier disquisition, it can be said that the Uniform Rules does not contradict the Administrative
Code. Rather, the former simply provides a reasonable interpretation of the latter. Such action is perfectly within
the authority of the CSC, pursuant to Section 12(2), Chapter 3, Subtitle A, Title I, Book V of E.O. No. 292, which
gives it the power to "prescribe, amend and enforce rules and regulations for carrying into effect the provisions of
the Civil Service Law and other pertinent laws."

Another view has been propounded that the original jurisdiction of the CSC has been further limited by Section 5
of the Uniform Rules, such that the CSC can only take cognizance of complaints filed directly with it which: (1) are
brought against personnel of the CSC central office, (2) are against third level officials who are not presidential
appointees, (3) are against officials and employees, but are not acted upon by the agencies themselves, or (4)
otherwise require direct or immediate action in the interest of justice:

Section 5. Jurisdiction of the Civil Service Commission Proper. The Civil Service Commission Proper shall have
jurisdiction over the following cases:chanroblesvirtuallawlibrary

A. Disciplinary

1. Decisions of the Civil Service Regional Offices brought before it on petition for review;

2. Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities,
imposing penalties exceeding thirty days suspension or fine in an amount exceeding thirty days salary brought
before it on appeal;

3. Complaints brought against Civil Service Commission Proper personnel;

4. Complaints against third level officials who are not presidential appointees;

5. Complaints against Civil Service officials and employees which are not acted upon by the agencies and such
other complaints requiring direct or immediate action, in the interest of justice;

6. Requests for transfer of venue of hearing on cases being heard by Civil Service Regional Offices;

7. Appeals from the Order of Preventive Suspension; and

8. Such other actions or requests involving issues arising out of or in connection with the foregoing enumerations.

It is the Courts position that the Uniform Rules did not supplant the law which provided the CSC with original
jurisdiction. While the Uniform Rules may have so provided, the Court invites attention to the cases of Civil Service
Commission v. Alfonso31ςrνll and Civil Service Commission v. Sojor,32ςrνll to be further discussed in the course of
this decision, both of which buttressed the pronouncement that the Board of Regents shares its authority to
discipline erring school officials and employees with the CSC. It can be presumed that, at the time of their
promulgation, the members of this Court, in Alfonso and Sojor, were fully aware of all the existing laws and
applicable rules and regulations pertaining to the jurisdiction of the CSC, including the Uniform Rules. In fact, Sojor
specifically cited the Uniform Rules in support of its ruling allowing the CSC to take cognizance of an administrative
case filed directly with it against the president of a state university. As the Court, in the two cases, did not consider
Section 5 of the Uniform Rules as a limitation to the original concurrent jurisdiction of the CSC, it can be stated that
Section 5 is merely implementary. It is merely directory and not restrictive of the CSCs powers. The CSC itself is of
this view as it has vigorously asserted its jurisdiction over this case through this petition.

The case of Alfonso33ςrνll is on all fours with the case at bench. The case involved a complaint filed before the CSC
against a PUP employee by two employees of the same university. The CA was then faced with the identical issue
of whether it was the CSC or the PUP Board of Regents which had jurisdiction over the administrative case filed
against the said PUP employee. The CA similarly ruled that the CSC could take cognizance of an administrative case
if the decisions of secretaries or heads of agencies, instrumentalities, provinces, cities and municipalities were
appealed to it or if a private citizen directly filed with the CSC a complaint against a government official or
employee. Because the complainants in the said case were PUP employees and not private citizens, the CA held
that the CSC had no jurisdiction to hear the administrative case. It further posited that even assuming the CSC had
the authority to do so, immediate resort to the CSC violated the doctrine of exhaustion of administrative remedies
as the complaint should have been first lodged with the PUP Board of Regents to allow them the opportunity to
decide on the matter. This Court, however, reversed the said decision and declared the following:

xxx. Admittedly, the CSC has appellate jurisdiction over disciplinary cases decided by government departments,
agencies and instrumentalities. However, a complaint may be filed directly with the CSC, and the Commission has
the authority to hear and decide the case, although it may opt to deputize a department or an

agency to conduct the investigation. x x x

xxxxxxxxx

We are not unmindful of certain special laws that allow the creation of disciplinary committees and governing
bodies in different branches, subdivisions, agencies and instrumentalities of the government to hear and decide
administrative complaints against their respective officers and employees. Be that as it may, we cannot interpret
the creation of such bodies nor the passage of laws such as R.A. Nos. 8292 and 4670 allowing for the creation of
such disciplinary bodies as having divested the CSC of its inherent power to supervise and discipline government
employees, including those in the academe. To hold otherwise would not only negate the very purpose for which
the CSC was established, i.e. to instill professionalism, integrity, and accountability in our civil service, but would
also impliedly amend the Constitution itself.

xxxxxxxxx

But it is not only for this reason that Alfonsos argument must fail. Equally significant is the fact that he had already
submitted himself to the jurisdiction of the CSC when he filed his counter-affidavit and his motion for
reconsideration and requested for a change of venue, not from the CSC to the BOR of PUP, but from the CSC-
Central Office to the CSC-NCR. It was only when his motion was denied that he suddenly had a change of heart and
raised the question of proper jurisdiction. This cannot be allowed because it would violate the doctrine of res
judicata, a legal principle that is applicable to administrative cases as well. At the very least, respondents active
participation in the proceedings by seeking affirmative relief before the CSC already bars him from impugning the
Commissions authority under the principle of estoppel by laches.
In this case, the complaint-affidavits were filed by two PUP employees. These complaints were not lodged before
the disciplinary tribunal of PUP, but were instead filed before the CSC, with averments detailing respondents
alleged violation of civil service laws, rules and regulations. After a fact-finding investigation, the Commission
found that a prima facie case existed against Alfonso, prompting the Commission to file a formal charge against the
latter. Verily, since the complaints were filed directly with the CSC, and the CSC has opted to assume jurisdiction
over the complaint, the CSCs exercise of jurisdiction shall be to the exclusion of other tribunals exercising
concurrent jurisdiction. To repeat, it may, however, choose to deputize any department or agency or official or
group of officials such as the BOR of PUP to conduct the investigation, or to delegate the investigation to the
proper regional office. But the same is merely permissive and not mandatory upon the
Commission.34ςrνll [Emphases and underscoring supplied]

It has been opined that Alfonso does not apply to the case at bar because respondent therein submitted himself to
the jurisdiction of the CSC when he filed his counter-affidavit before it, thereby preventing him from later
questioning the jurisdiction of the CSC. Such circumstance is said to be totally absent in this case.35ςrνll

The records speak otherwise. As in Alfonso, respondents herein submitted themselves to the jurisdiction of the
CSC when they filed their Joint Counter-Affidavit.36ςrνll It was only when their Motion for Reconsideration and
Motion to Declare Absence of Prima Facie Case37ςrνll was denied by the CSC that they thought to put in issue the
jurisdiction of the CSC before the CA, clearly a desperate attempt to evade prosecution by the CSC. As in Alfonso,
respondents are also estopped from questioning the jurisdiction of the CSC.

Based on all of the foregoing, the inescapable conclusion is that the CSC may take cognizance of an administrative
case filed directly with it against an official or employee of a chartered state college or university. This is regardless
of whether the complainant is a private citizen or a member of the civil service and such original jurisdiction is
shared with the Board of Regents of the school.

Gaoiran not applicable

In its decision, the CA relied heavily on Gaoiran v. Alcala38ςrνll to support its judgment that it is the Board of
Regents, and not the CSC, which has jurisdiction over the administrative complaint filed against the respondents.

A thorough study of the said case, however, reveals that it is irrelevant to the issues discussed in the case at bench.
Gaoiran speaks of a complaint filed against a high school teacher of a state-supervised school by another employee
of the same school. The complaint was referred to the Legal Affairs Service of the Commission on Higher Education
(LAS-CHED). After a fact-finding investigation established the existence of a prima facie case against the teacher,
the Officer-in-Charge of the Office of the Director of LAS-CHED issued a formal charge for Grave Misconduct and
Conduct Prejudicial to the Best Interest of the Service, together with the Order of Preventive Suspension. The
newly-appointed Director of LAS-CHED, however, dismissed the administrative complaint on the ground that the
letter-complaint was not made under oath. Unaware of this previous resolution, the Chairman of the CHED issued
another resolution finding petitioner therein guilty of the charges against him and dismissing him from the service.
The trial court upheld the resolution of the director of LAS-CHED but on appeal, this was reversed by the CA,
affirming the decision of the CHED chairman removing petitioner from service. One of the issues raised therein
before this Court was whether the CA erred in disregarding the fact that the complaint was not made under oath
as required by the Omnibus Rules Implementing Book V of E.O. 292.

In the said case, the Court concurred with the findings of the CA that it was the formal charge issued by the LAS-
CHED which constituted the complaint, and because the same was initiated by the appropriate disciplining
authority, it need not be subscribed and sworn to and CHED acquired jurisdiction over the case. The Court further
affirmed the authority of the heads of agencies to investigate and decide matters involving disciplinary action
against their officers and employees. It bears stressing, at this point, that there is nothing in the case that remotely
implies that this Court meant to place upon the Board of Regent exclusive jurisdiction over administrative cases
filed against their employees.
In fact, following the ruling in Gaoiran, it can be argued that it was CSC Resolution No. 060521 which formally
charged respondents that constituted the complaint, and since the complaint was initiated by the CSC itself as the
disciplining authority, the CSC properly acquired jurisdiction over the case.

R.A. No. 8292 is not in conflict

with E.O. No. 292.

In addition, the respondents argue that R.A. No. 8292, which granted to the board of regents or board of trustees
disciplinary authority over school employees and officials of chartered state colleges and universities, should
prevail over the provisions of E.O. No. 292.39ςrνll They anchor their assertion that the Board of Regents has
exclusive jurisdiction over administrative cases on Section 4 of R.A. No. 8292, 40ςrνll to wit:

Section 4. Powers and duties of Governing Boards. The governing board shall have the following specific powers
and duties in addition to its general powers of administration and the exercise of all the powers granted to the
board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68 otherwise known as the
Corporation Code of the Philippines;

xxxx

(h) to fix and adjust salaries of faculty members and administrative officials and employees subject to the
provisions of the revised compensation and classification system and other pertinent budget and compensation
laws governing hours of service, and such other duties and conditions as it may deem proper; to grant them, at its
discretion, leaves of absence under such regulations as it may promulgate, any provisions of existing law to the
contrary not with standing; and to remove them for cause in accordance with the requirements of due process of
law. [Emphasis supplied]

The respondents are mistaken.

Basic is the principle in statutory construction that interpreting and harmonizing laws is the best method of
interpretation in order to form a uniform, complete, coherent, and intelligible system of jurisprudence, in
accordance with the legal maxim interpretare et concordare leges legibus est optimus interpretandi
modus.41ςrνll Simply because a later statute relates to a similar subject matter as that of an earlier statute does
not result in an implied repeal of the latter.42ςrνll

A perusal of the abovequoted provision clearly reveals that the same does not indicate any intention to remove
employees and officials of state universities and colleges from the ambit of the CSC. What it merely states is that
the governing board of a school has the authority to discipline and remove faculty members and administrative
officials and employees for cause. It neither supersedes nor conflicts with E.O. No. 292 which allows the CSC to
hear and decide administrative cases filed directly with it or on appeal.

In addition to the previously cited case of Alfonso, the case of The Civil Service Commission v. Sojor43ςrνll is
likewise instructive. In the said case, this Court ruled that the CSC validly took cognizance of the administrative
complaints directly filed with it concerning violations of civil service rules committed by a university president. This
Court acknowledged that the board of regents of a state university has the sole power of administration over a
university, in accordance with its charter and R.A. No. 8292. With regard to the disciplining and removal of its
employees and officials, however, such authority is not exclusive to it because all members of the civil service fall
under the jurisdiction of the CSC:

Verily, the BOR of NORSU has the sole power of administration over the university. But this power is not exclusive
in the matter of disciplining and removing its employees and officials. Although the BOR of NORSU is given the
specific power under R.A. No. 9299 to discipline its employees and officials, there is no showing that such power is
exclusive. When the law bestows upon a government body the jurisdiction to hear and decide cases involving
specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is
likewise vested with the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter.

All members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law. Being a
non-career civil servant does not remove respondent from the ambit of the CSC.

Career or non-career, a civil service official or employee is within the jurisdiction of the CSC. 44ςrνll [Emphases and
underscoring supplied]

It has been pointed out that the case of Sojor is not applicable to the case at bar because the distinction between a
complaint filed by a private citizen and one filed by a government employee was not taken into consideration in
the said case.45ςrνll The dissent fails to consider that Sojor is cited in the ponencia to support the ruling that R.A.
No. 8292 is not in conflict with E.O. No. 292 and to counter respondents flawed argument that the passage of R.A.
No. 8292 granted the Board of Regents exclusive jurisdiction over administrative cases against school employees
and officials of chartered state colleges and universities. Also noteworthy is the fact that the complainants before
the CSC in Sojor were faculty members of a state university and were, thus, government employees. Nevertheless,
despite this, the Court allowed the CSC to assert jurisdiction over the administrative case, proclaiming that the
power of the Board of Regents to discipline its officials and employees is not exclusive but is concurrent with the
CSC.46ςrνll

The case of University of the Philippines v. Regino47ςrνll was also cited to bolster the claim that original
jurisdiction over disciplinary cases against government officials is vested upon the department secretaries and
heads of agencies and instrumentalities, provinces, cities and municipalities, whereas the CSC only enjoys
appellate jurisdiction over such cases.48ςrνll The interpretation therein of the Administrative Code supposedly
renders effectual the provisions of R.A. No. 8292 and does not "deprive the governing body of the power to
discipline its own officials and employees and render inutile the legal provisions on disciplinary measures which
may be taken by it."49ςrνll

The Court respectfully disagrees. Regino is obviously inapplicable to this case because there, the school employee
had already been found guilty and dismissed by the Board of Regents of the University of the Philippines.
Therefore, the issue put forth before this Court was whether the CSC had appellate jurisdiction over cases against
university employees, considering the university charter which gives it academic freedom allegedly encompassing
institutional autonomy. In contrast, no administrative case was filed before the Board of Regents of PUP because
the case was filed directly with the CSC and so, the question here is whether the CSC has original concurrent
jurisdiction over disciplinary cases. Rationally, the quoted portions in Regino find no application to the case at
bench because those statements were made to uphold the CSCs appellate jurisdiction which was being contested
by petitioner therein. At the risk of being repetitive, it is hereby stressed that the authority of the CSC to hear cases
on appeal has already been established in this case. What is in question here is its original jurisdiction over
administrative cases.

A different interpretation of the Administrative Code was suggested in order to harmonize the provisions of R.A.
No. 8292 and E.O. 292. By allowing only a private citizen to file a complaint directly with the CSC, the CSC
maintains its power to review on appeal decisions of the Board of Regents while at the same time the governing
board is not deprived of its power to discipline its officials and employees.50ςrνll

To begin with, there is no incongruity between R.A. No. 8292 and E.O. No. 292, as previously explained in Sojor.
Moreover, the Court fails to see how a complaint filed by a private citizen is any different from one filed by a
government employee. If the grant to the CSC of concurrent original jurisdiction over administrative cases filed by
private citizens against public officials would not deprive the governing bodies of the power to discipline their own
officials and employees and would not be violative of R.A. No. 8292, it is inconceivable that a similar case filed by a
government employee would do so. Such a distinction between cases filed by private citizens and those by civil
servants is simply illogical and unreasonable. To accede to such a mistaken interpretation of the Administrative
Code would be a great disservice to our developing jurisprudence.

It is therefore apparent that despite the enactment of R.A. No. 8292 giving the board of regents or board of
trustees of a state school the authority to discipline its employees, the CSC still retains jurisdiction over the school
and its employees and has concurrent original jurisdiction, together with the board of regents of a state university,
over administrative cases against state university officials and employees.

Finally, with regard to the concern that the CSC may be overwhelmed by the increase in number of cases filed
before it which would result from our ruling,51ςrνll it behooves us to allay such worries by highlighting two
important facts. Firstly, it should be emphasized that the CSC has original concurrent jurisdiction shared with the
governing body in question, in this case, the Board of Regents of PUP. This means that if the Board of Regents first
takes cognizance of the complaint, then it shall exercise jurisdiction to the exclusion of the CSC.52ςrνll Thus, not all
administrative cases will fall directly under the CSC. Secondly, Section 47, Chapter 7, Subtitle A, Title I, Book V of
the Administrative Code affords the CSC the option of whether to decide the case or to deputize some other
department, agency or official to conduct an investigation into the matter, thereby considerably easing the burden
placed upon the CSC.

Having thus concluded, the Court sees no need to discuss the other issues raised in the petitions.

WHEREFORE, the petitions are GRANTED. The December 29, 2006 Decision of the Court of Appeals is
hereby REVERSED and SET ASIDE. Resolution Nos. 060521 and 061141 dated March 24, 2006 and June 30, 2006,
respectively, of the Civil Service Commission are REINSTATED.ςrαlαωlιbrαr

SO ORDERED.

G.R. No. 209331, April 24, 2015

DEPARTMENT OF FINANCE, REPRESENTED BY HON. CESAR V. PURISIMA IN HIS OFFICIAL CAPACITY AS

SECRETARY, AND THE BUREAU OF CUSTOMS, REPRESENTED BY HON. ROZZANO RUFINO B. BIAZON, IN HIS
OFFICIAL CAPACITY AS COMMISSIONER OF CUSTOMS, Petitioners, v. HON. MARINO M. DELA CRUZ, JR., IN HIS
CAPACITY AS EXECUTIVE JUDGE, REGIONAL TRIAL COURT, MANILA, HON. FELICITAS O. LARON-CACANINDIN, IN
HER CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL COURT, MANILA, BRANCH 17, RONNIE C. SILVESTRE,
EDWARD P. DELA CUESTA, ROGEL C. GATCHALIAN, IMELDA D.CRUZ, LILIBETH S. SANDAG, RAYMOND P.
VENTURA, MA. LIZA S. TORRES, ARNEL C. ALCARAZ, MA. LOURDES V. MANGAOANG, FRANCIS AGUSTIN Y. ERPE,
CARLOS T. SO, MARIETTA D. ZAMORANOS, CARMELITA M. TALUSAN,1 AREFILES H. CARREON,2 AND ROMALINO
G. VALDEZ, Respondents.

DECISION

CARPIO, J.:

The Case

Petitioners assail the Order dated 4 October 20133 issued by Judge Felicitas O. Laron-Cacanindin (Judge Laron-
Cacanindin) of the Regional Trial Court of Manila, Branch 17 (RTC Branch 17), in Civil Case No. 13-130820. The
Order extended the 72-hour Temporary Restraining Order (TRO) issued by Executive Judge Marino M. Dela Cruz, Jr.
(Executive Judge Dela Cruz) in favor of respondents Silvestre, et al.
4
to 20 days or until 21 October 2013 without need of posting bond.

The Antecedent Facts

The case stemmed from the issuance of Executive Order No. 140 (EO 140) on 2 September 2013, which created the
Customs Policy Research Office (CPRO) in the Department of Finance (DOF). EO 140 states that the CPRO "shall be
responsible for reviewing the customs administration policies, rules and procedures, and thereafter providing
sound recommendations for the improvement of the same." Section 3 of EO 140 provides that "CPRO shall be
composed of its organic personnel, as approved by the Department of Budget and Management (DBM) upon
recommendation of the DOF Secretary, augmented and reinforced by DOF and BOC personnel as well as those
detailed or seconded from other agencies, whether attached to the DOF or not. x x x." Section 9 of EO 140 states
that it shall "take effect immediately upon publication in two (2) newspapers of general circulation." EO 140 was
published in Manila Bulletin and Philippine Star on 17 September 2013. On the same day of the publication of EO
140, Bureau of Customs (BOC) Commissioner Rozzano Rufino B. Biazon (Commissioner Biazon) issued Customs
Personnel Order No. B-189-2013 (CPO 189-2013) detailing 27 BOC personnel holding the positions of Collector of
Customs V and VI, including respondents in this case, to CPRO "effective immediately and valid until sooner
revoked." CPO 189-2013 was approved by DOF Secretary Cesar V. Purisima (Secretary Purisima). On 30 September
2013, respondents filed an action for Declaratory Relief with Application for Temporary Restraining Order and/or
Writ of Preliminary Injunction before the Regional Trial Court (RTC) of Manila. On 1 October 2013, Executive Judge
Dela Cruz issued a TRO for a period of 72 hours enjoining petitioners or any person acting for and in their behalf
from implementing CPO 189-2013. Thereafter, the case was raffled to the sala of Judge Laron-Cacanindin. In the
assailed Order of 4 October 2013, Judge Laron-Cacanindin extended Executive Judge Dela Cruz's 72-hour TRO for
20 days or until 21 October 2013. She then set the hearing for the issuance of a preliminary injunction on 18
October 2013. On 21 October 2013, petitioners filed a Petition for Certiorari and Prohibition before this Court, with
prayer for the issuance of a TRO or a writ of preliminary mandatory injunction. Petitioners alleged that the case
involves personnel action affecting public officers which is under the exclusive jurisdiction of the Civil Service
Commission (CSC). Petitioners also alleged that respondents failed to exhaust all administrative remedies available
to them before filing the petition before the RTC. Petitioners also alleged that CPO 189-2013 is an internal
personnel order with application that is limited to and only within BOC and as such, it cannot be the subject of an
action for declaratory relief. In their Comment, respondents alleged that the case involves the validity and
constitutionality of CPO 189-2013, and thus, it is beyond the jurisdiction of the CSC. Respondents further alleged
that EO 140 violated Article 2 of the Civil Code when it became effective immediately after its publication. In their
Reply, petitioners alleged that respondents only assailed the validity of EO 140 to justify their filing of an action for
declaratory relief. As regards its effectivity, petitioners alleged that EO 140 states that it shall "take effect
immediately upon publication in two (2) newspapers of general circulation." In an Order dated 21 October 2013,
Judge Laron-Cacanindin denied respondents' application for the issuance of a writ of preliminary injunction. In an
Order dated 5 November 2013, Judge Laron-Cacanindin inhibited herself from further hearing the case.

The Issues

The issues for determination by this Court are the following:

1. 1. Whether the RTC has jurisdiction over the action for declaratory relief filed by respondents;
2. 2. Whether respondents failed to exhaust administrative remedies in filing the action before the RTC;
3. 3. Whether EO 140 violated Article 2 of the Civil Code when it became effective immediately after its
publication; and
4. 4. Whether CPO 189-2013 was validly issued.

The Ruling of this Court

 Jurisdiction over the Petition

The CSC has jurisdiction over all employees of government branches, subdivisions, instrumentalities, and agencies,
including government-owned or controlled corporations with original charters.5 The CSC is the sole arbiter of
controversies relating to the civil service.6 The rule is that disciplinary cases and cases involving personnel actions,
including "appointment through certification, promotion, transfer, reinstatement, reemployment, detail,
reassignment, demotion, and separation," are within the exclusive jurisdiction of the CSC.7 This rule is embodied in
Section 1, Rule V of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil
Service Laws (Omnibus Rules) which states:
SECTION 1.x x x. As used in these Rules, any action denoting movement or progress of personnel in the civil service
shall be known as personnel action. Such action shall include promotion, transfer, reinstatement, reemployment,
detail, secondment, reassignment, demotion and separation, x x x.

Under Section 8, Rule VII of the Omnibus Rules, "[a] detail is the movement of an employee from one department
or agency which is temporary in nature, which does not involve a reduction in rank, status or salary and does not
require the issuance of another appointment." CPO 189-2013 is an order detailing personnel from the BOC to
CPRO under the DOF. A reading of the petition filed before the RTC shows that respondents were questioning their
mass detail and reassignment to CPRO. According to respondents, their detail was carried out in bad faith and was
meant to remove them from their permanent positions in the BOC. The action appears to be a personnel action
under the jurisdiction of the CSC. However, the petition went beyond questioning the detail of respondents.
Respondents further assailed the validity and constitutionality of CPO 189-2013. Respondents alleged that CPO
189-2013 was issued even before EC) 140, pursuant to which CPO 189-2013 was issued, became effective.
Respondents alleged that CPO 189-2013 was issued to beat the deadline of the Commission on Elections' ban on
personnel movement from 28 September 2013 to 20 October 2013 due to the scheduled barangay elections.
When respondents raised the issue of validity and constitutionality of CPO 189-2013, the issue took the case
beyond the scope of the CSC's jurisdiction because the matter is no longer limited to personnel action. Thus, the
RTC did not abuse its discretion in taking cognizance of the action.

Failure to Exhaust Administrative Remedies

Petitioners allege that respondents failed to exhaust their administrative remedies before filing the case with the
RTC. The doctrine of exhaustion of administrative remedies allows administrative agencies to carry out their
functions and discharge their responsibilities within the specialized areas of their respective competence.8 The
doctrine entails lesser expenses and provides for the speedier resolution of controversies. 9

Therefore, direct recourse to the trial court, when administrative remedies are available, is a ground for dismissal
of the action. The doctrine, however, is not without exceptions. Among the exceptions are: (1) where there is
estoppel on the part of the party invoking the doctrine; (2) where the challenged administrative act is patently
illegal, amounting to lack of jurisdiction; (3) where there is unreasonable delay or official inaction that will
irretrievably prejudice the complainant; (4) where the amount involved is relatively so small as to make the rule
impractical and oppressive; (5) where the question involved is purely legal and will ultimately have to be decided
by the courts of justice; (6) where judicial intervention is urgent; (7) where the application of the doctrine may
cause great and irreparable damage; (8) where the controverted acts violate due process; (9) where the issue of
non-exhaustion of administrative remedies had been rendered moot; (10) where there is no other plain, speedy
and adequate remedy; (11) where strong public interest is involved; and (12) in quo warranto proceedings.10

In this case, respondents allege that CPO 189-2013 is contrary to law and unconstitutional. Respondents assail CPO
189-2013 as patently illegal, arbitrary, and oppressive. This case clearly falls within the exceptions where
exhaustion of administrative remedies need not be resorted to by respondents.

Effectivity of EO 140
Respondents allege that EO 140 took effect only on 2 October 2013, fifteen days after its publication in two
newspapers of general circulation. Hence, respondents argue that when CPO 189-2013 was issued, EO 140 was not
yet effective. Article 2 of the Civil Code of the Philippines, as amended by Executive Order No. 200, 11 is clear on this
issue. It states:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official
Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.
The proviso "unless it is otherwise provided" refers to an effectivity date other than after fifteen days following the
completion of the law's publication.
12
Thus, it is within the discretion of the legislature, or the Executive Department in this case, whether to shorten
or extend the fifteen-day period13 as long as there is compliance with the requirement of publication. Here, Section
9 of EO 140 provides that the "order shall take effect immediately upon publication in two (2) newspapers of
general circulation." EO 140 was published in Manila Bulletin and Philippine Star on 17 September 2013. As such,
EO 140 took effect on 17 September 2013. In addition, the Court already ruled that "[interpretative regulations
and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the
public, need not be published."14EO 140 is an internal regulation that affects primarily the personnel of the DOF
and the BOC. It remains valid even without publication.

Validity of CPO 189-2013

Respondents assail the validity of CPO 189-2013. Respondents allege that under EO 140, CPRO shall be composed
of its organic personnel, as approved by the DBM upon recommendation of the DOF Secretary. The organic
personnel was supposed to be augmented and reinforced by DOF and BOC personnel. Respondents allege that
they were detailed to CPRO even before its organic personnel could be constituted. We rule for respondents.
Section 3 of EO 140 provides:
SECTION 3. Personnel and Staffing Complement. The CPRO shall be composed of its organic personnel, as
approved by the Department of Budget and Management (DBM) upon recommendation of the DOF Secretary,
augmented and reinforced by DOF and BOC personnel as well as those detailed or seconded from other agencies,
whether attached to the DOF or not. In addition, the CPRO, upon approval of the DOF Secretary, may hire or
engage technical consultants to provide necessary support in the performance of its mandate.

Respondents were supposed to augment and reinforce the existing organic personnel of CPRO. Yet, at the time of
respondents' detail, CPRO had not been formally organized. CPRO had no organic personnel that had been
approved by the DBM upon recommendation of the DOF Secretary. The DOF Secretary had yet to promulgate rules
and regulations and to prescribe procedures and processes to enable CPRO to effectively exercise its powers and
duties, as required by Section 4 of EO 140. In addition, under Section 8, Rule VII of the Omnibus Rules, a detail is
temporary in nature. In fact, detail of employees is only allowed for a maximum, period for those occupying
professional, technical, and scientific positions.15

Section 8, Rule VII of the Omnibus Rules provides:

SEC. 8. A detail is the movement of an employee from one department or agency to another which is temporary in
nature, which does not involve a reduction in rank, status or salary and does not require the issuance of another
appointment. The employee detailed receives his salary only from his mother unit/agency. Detail shall be allowed
only for a maximum period in the case of employees occupying professional, technical and scientific position. If the
employee believes that there is no justification for the detail, he may appeal his case to the Commission. Pending
appeal, the decision to detail the employee shall be executory unless otherwise ordered by the Commission.
Section 2 of CSC Resolution No. 021181, dated 13 September 2002, 16 clarified the maximum period of detail of
employees. It states:
Section 2. Duration of the detail. The detail shall be allowed only for a maximum period of one year. Details
beyond one year may be allowed provided it is with the consent of the detailed employee. The extension or
renewal of the period of the detail shall be within the authority of the mother agency. If the employee believes
that there is no justification for the detail, he/she may appeal his/her case to the proper Civil Service Commission
Regional Office. Pending appeal, the detail shall be executory unless otherwise ordered by said regional office.
Decision of said regional office may be further appealed to the Commission en banc.
In this case, CPO 189-2013 did not provide for the period of respondents' detail. It only provided that the order
"shall be effective immediately and valid until sooner revoked," making the detail of respondents indefinite. There
was nothing to show that respondents were occupying professional, technical, and scientific positions that would
have allowed their detail for the maximum period provided under Section 8, Rule VII of the Omnibus Rules.
Further, CSC Resolution No. 021181 did not distinguish between an ordinary employee and an employee occupying
professional, technical, and scientific position. Hence, it should have been specified that the maximum period of
respondents' detail should not exceed one year. Petitioners assert, and we quote:
There is a cancer of corruption we must extinguish. The drive to rid the government of graft and corruption
deserves the support of everyone. The principle of good governance cannot, should not, be trivialized nor
oversimplified by tenuous whimpering and individualism intended to detract from the urgent need to cleanse the
Republic from a mainstream culture of unabated corruption, perpetuated with impunity and sense of self-
entitlement. The issue at hand is not about who, but what; it is not about individual loss, but about national gain.
Whether from the birth pains of reform, this nation can gain a foothold, nay, a stride into restoring this nation into
its prideful place from the clutches of a "kleptocratic mafia" that had gained a strangehold into one of the nation's
primary sources of revenue.17

Indeed, we commend and support the reforms being undertaken in the different agencies of the government.
However, we cannot allow department heads to take shortcuts that will undermine and disregard the basic
procedures of the law.

WHEREFORE, we PARTIALLY GRANT the petition. We sustain the validity of Executive Order No. 140. We rule that
the Regional Trial Court has jurisdiction over the action for declaratory relief filed by respondents. We further rule
that Customs Personnel Order No. B-189-2013 was not validly issued.

SO ORDERED.

[G.R. No. 178454, March 28 : 2011]

FILIPINA SAMSON, PETITIONER, VS. JULIA A. RESTRIVERA, RESPONDENT.

DECISION

VILLARAMA, JR., J.:

Petitioner Filipina Samson appeals the Decision[1] dated October 31, 2006 of the Court of Appeals (CA) in CA-G.R.
SP No. 83422 and its Resolution[2] dated June 8, 2007, denying her motion for reconsideration. The CA affirmed
the Ombudsman in finding petitioner guilty of violating Section 4(b)[3] of Republic Act (R.A.) No. 6713, otherwise
known as the Code of Conduct and Ethical Standards for Public Officials and Employees.

The facts are as follows:

Petitioner is a government employee, being a department head of the Population Commission with office at the
Provincial Capitol, Trece Martirez City, Cavite.

Sometime in March 2001, petitioner agreed to help her friend, respondent Julia A. Restrivera, to have the latter's
land located in Carmona, Cavite, registered under the Torrens System. Petitioner said that the expenses would
reach P150,000 and accepted P50,000 from respondent to cover the initial expenses for the titling of respondent's
land. However, petitioner failed to accomplish her task because it was found out that the land is government
property. When petitioner failed to return the P50,000, respondent sued her for estafa. Respondent also filed an
administrative complaint for grave misconduct or conduct unbecoming a public officer against petitioner before
the Office of the Ombudsman.

The Ombudsman found petitioner guilty of violating Section 4(b) of R.A. No. 6713 and suspended her from office
for six months without pay. The Ombudsman ruled that petitioner failed to abide by the standard set in Section
4(b) of R.A. No. 6713 and deprived the government of the benefit of committed service when she embarked on her
private interest to help respondent secure a certificate of title over the latter's land. [4]

Upon motion for reconsideration, the Ombudsman, in an Order[5] dated March 15, 2004, reduced the penalty to
three months suspension without pay. According to the Ombudsman, petitioner's acceptance of respondent's
payment created a perception that petitioner is a fixer. Her act fell short of the standard of personal conduct
required by Section 4(b) of R.A. No. 6713 that public officials shall endeavor to discourage wrong perceptions of
their roles as dispensers or peddlers of undue patronage. The Ombudsman held:

x x x [petitioner] admitted x x x that she indeed received the amount of P50,000.00 from the [respondent] and
even contracted Engr. Liberato Patromo, alleged Licensed Geodetic Engineer to do the surveys.

While it may be true that [petitioner] did not actually deal with the other government agencies for the processing
of the titles of the subject property, we believe, however, that her mere act in accepting the money from the
[respondent] with the assurance that she would work for the issuance of the title is already enough to create a
perception that she is a fixer. Section 4(b) of [R.A.] No. 6713 mandates that public officials and employees
shall endeavor to discourage wrong perception of their roles as dispenser or peddler of undue patronage.

xxxx

x x x [petitioner's] act to x x x restore the amount of [P50,000] was to avoid possible sanctions.

x x x [d]uring the conciliation proceedings held on 19 October 2002 at the barangay level, it was agreed upon by
both parties that [petitioner] be given until 28 February 2003 within which to pay the amount of P50,000.00
including interest. If it was true that [petitioner] had available money to pay and had been persistent in returning
the amount of [P50,000.00] to the [respondent], she would have easily given the same right at that moment (on 19
October 2002) in the presence of the Barangay Officials.[6] x x x. (Stress in the original.)

The CA on appeal affirmed the Ombudsman's Order dated March 19, 2004. The CA ruled that contrary to
petitioner's contentions, the Ombudsman has jurisdiction even if the act complained of is a private matter. The CA
also ruled that petitioner violated the norms of conduct required of her as a public officer when she demanded
and received the amount of P50,000 on the representation that she can secure a title to respondent's property and
for failing to return the amount. The CA stressed that Section 4(b) of R.A. No. 6713 requires petitioner to perform
and discharge her duties with the highest degree of excellence, professionalism, intelligence and skill, and to
endeavor to discourage wrong perceptions of her role as a dispenser and peddler of undue patronage. [7]

Hence, this petition which raises the following issues:

 1. Does the Ombudsman have jurisdiction over a case involving a private dealing by a government employee
or where the act complained of is not related to the performance of official duty?

2. Did the CA commit grave abuse of discretion in finding petitioner administratively liable despite the
dismissal of the estafa case?

3. Did the CA commit grave abuse of discretion in not imposing a lower penalty in view of mitigating
circumstances?[8]

Petitioner insists that where the act complained of is not related to the performance of official duty, the
Ombudsman has no jurisdiction. Petitioner also imputes grave abuse of discretion on the part of the CA for
holding her administratively liable. She points out that the estafa case was dismissed upon a finding that she was
not guilty of fraud or deceit, hence misconduct cannot be attributed to her. And even assuming that she is guilty
of misconduct, she is entitled to the benefit of mitigating circumstances such as the fact that this is the first charge
against her in her long years of public service.[9]

Respondent counters that the issues raised in the instant petition are the same issues that the CA correctly
resolved.[10] She also alleges that petitioner failed to observe the mandate that public office is a public trust when
she meddled in an affair that belongs to another agency and received an amount for undelivered work. [11]

We affirm the CA and Ombudsman that petitioner is administratively liable. We hasten to add, however, that
petitioner is guilty of conduct unbecoming a public officer.

On the first issue, we agree with the CA that the Ombudsman has jurisdiction over respondent's complaint against
petitioner although the act complained of involves a private deal between them. [12] Section 13(1),[13] Article XI of
the 1987 Constitution states that the Ombudsman can investigate on its own or on complaint by any
person any act or omission of any public official or employee when such act or omission appears to be illegal,
unjust, or improper. Under Section 16[14] of R.A. No. 6770, otherwise known as the Ombudsman Act of 1989, the
jurisdiction of the Ombudsman encompasses all kinds of malfeasance, misfeasance, and nonfeasance committed
by any public officer or employee during his/her tenure. Section 19[15] of R.A. No. 6770 also states that the
Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which are unfair or irregular.
Thus, even if the complaint concerns an act of the public official or employee which is not service-connected, the
case is within the jurisdiction of the Ombudsman. The law does not qualify the nature of the illegal act or omission
of the public official or employee that the Ombudsman may investigate. It does not require that the act or
omission be related to or be connected with or arise from the performance of official duty. Since the law does not
distinguish, neither should we.[16]

On the second issue, it is wrong for petitioner to say that since the estafa case against her was dismissed, she
cannot be found administratively liable. It is settled that administrative cases may proceed independently of
criminal proceedings, and may continue despite the dismissal of the criminal charges.[17]

For proper consideration instead is petitioner's liability under Sec. 4(A)(b) of R.A. No. 6713.

We quote the full text of Section 4 of R.A. No. 6713:

SEC. 4. Norms of Conduct of Public Officials and Employees. - (A) Every public official and employee shall observe
the following as standards of personal conduct in the discharge and execution of official duties:

(a) Commitment to public interest. - Public officials and employees shall always uphold the public interest over and
above personal interest. All government resources and powers of their respective offices must be employed and
used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues.
(b) Professionalism. - Public officials and employees shall perform and discharge their duties with the highest
degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion
and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or
peddlers of undue patronage.

(c) Justness and sincerity. - Public officials and employees shall remain true to the people at all times. They must
act with justness and sincerity and shall not discriminate against anyone, especially the poor and the
underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to
law, good morals, good customs, public policy, public order, public safety and public interest. They shall not
dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity
except with respect to appointments of such relatives to positions considered strictly confidential or as members
of their personal staff whose terms are coterminous with theirs.

(d) Political neutrality. - Public officials and employees shall provide service to everyone without unfair
discrimination and regardless of party affiliation or preference.

(e) Responsiveness to the public. - Public officials and employees shall extend prompt, courteous, and adequate
service to the public. Unless otherwise provided by law or when required by the public interest, public officials and
employees shall provide information on their policies and procedures in clear and understandable language,
ensure openness of information, public consultations and hearings whenever appropriate, encourage suggestions,
simplify and systematize policy, rules and procedures, avoid red tape and develop an understanding and
appreciation of the socioeconomic conditions prevailing in the country, especially in the depressed rural and urban
areas.

(f) Nationalism and patriotism. - Public officials and employees shall at all times be loyal to the Republic and to the
Filipino people, promote the use of locally-produced goods, resources and technology and encourage appreciation
and pride of country and people. They shall endeavor to maintain and defend Philippine sovereignty against
foreign intrusion.

(g) Commitment to democracy. - Public officials and employees shall commit themselves to the democratic way of
life and values, maintain the principle of public accountability, and manifest by deed the supremacy of civilian
authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty
to persons or party.

(h) Simple living. - Public officials and employees and their families shall lead modest lives appropriate to their
positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form.

(B) The Civil Service Commission shall adopt positive measures to promote (1) observance of these standards
including the dissemination of information programs and workshops authorizing merit increases beyond regular
progression steps, to a limited number of employees recognized by their office colleagues to be outstanding in
their observance of ethical standards; and (2) continuing research and experimentation on measures which
provide positive motivation to public officials and employees in raising the general level of observance of these
standards.

Both the Ombudsman and CA found the petitioner administratively liable for violating Section 4(A)(b)
on professionalism. "Professionalism" is defined as the conduct, aims, or qualities that characterize or mark a
profession. A professional refers to a person who engages in an activity with great competence. Indeed, to call a
person a professional is to describe him as competent, efficient, experienced, proficient or polished. [18] In the
context of Section 4 (A)(b) of R.A. No. 6713, the observance of professionalism also means upholding the integrity
of public office by endeavoring "to discourage wrong perception of their roles as dispensers or peddlers of undue
patronage." Thus, a public official or employee should avoid any appearance of impropriety affecting the integrity
of government services. However, it should be noted that Section 4(A) enumerates the standards of personal
conduct for public officers with reference to "execution of official duties."

In the case at bar, the Ombudsman concluded that petitioner failed to carry out the standard of professionalism by
devoting herself on her personal interest to the detriment of her solemn public duty. The Ombudsman said that
petitioner's act deprived the government of her committed service because the generation of a certificate of title
was not within her line of public service. In denying petitioner's motion for reconsideration, the Ombudsman said
that it would have been sufficient if petitioner just referred the respondent to the persons/officials incharge of the
processing of the documents for the issuance of a certificate of title. While it may be true that she did not actually
deal with the other government agencies for the processing of the titles of the subject property, petitioner's act of
accepting the money from respondent with the assurance that she would work for the issuance of the title is
already enough to create a perception that she is a fixer.

On its part, the CA rejected petitioner's argument that an isolated act is insufficient to create those "wrong
perceptions" or the "impression of influence peddling." It held that the law enjoins public officers, at all times to
respect the rights of others and refrain from doing acts contrary to law, good customs, public order, public policy,
public safety and public interest. Thus, it is not the plurality of the acts that is being punished but the commission
of the act itself.

Evidently, both the Ombudsman and CA interpreted Section 4(A) of R.A. No. 6713 as broad enough to apply even
to private transactions that have no connection to the duties of one's office. We hold, however, that petitioner
may not be penalized for violation of Section 4 (A)(b) of R.A. No. 6713. The reason though does not lie in the fact
that the act complained of is not at all related to petitioner's discharge of her duties as department head of the
Population Commission.

In addition to its directive under Section 4(B), Congress authorized [19] the Civil Service Commission (CSC) to
promulgate the rules and regulations necessary to implement R.A. No. 6713. Accordingly, the CSC issued the Rules
Implementing the Code of Conduct and Ethical Standards for Public Officials and Employees (hereafter,
Implementing Rules). Rule V of the Implementing Rules provides for an Incentive and Rewards System for public
officials and employees who have demonstrated exemplary service and conduct on the basis of their observance
of the norms of conduct laid down in Section 4 of R.A. No. 6713, to wit:

RULE V. INCENTIVES AND REWARDS SYSTEM

SECTION 1. Incentives and rewards shall be granted officials and employees who have demonstrated exemplary
service and conduct on the basis of their observance of the norms of conduct laid down in Section 4 of the Code,
namely:

(a) Commitment to public interest. - x x x

(b) Professionalism. - x x x

(c) Justness and sincerity. - x x x

(d) Political neutrality. - x x x

(e) Responsiveness to the public. - x x x

(f) Nationalism and patriotism. - x x x

(g) Commitment to democracy. - x x x

(h) Simple living. - x x x

On the other hand, Rule X of the Implementing Rules enumerates grounds for administrative disciplinary action, as
follows:

RULE X. GROUNDS FOR ADMINISTRATIVE

DISCIPLINARY ACTION

SECTION 1. In addition to the grounds for administrative disciplinary action prescribed under existing laws, the acts
and omissions of any official or employee, whether or not he holds office or employment in a casual, temporary,
hold-over, permanent or regular capacity, declared unlawful or prohibited by the Code, shall constitute grounds
for administrative disciplinary action, and without prejudice to criminal and civil liabilities provided herein, such as:

(a) Directly or indirectly having financial and material interest in any transaction requiring the approval of his
office. x x x.

(b) Owning, controlling, managing or accepting employment as officer, employee, consultant, counsel, broker,
agent, trustee, or nominee in any private enterprise regulated, supervised or licensed by his office, unless
expressly allowed by law;

(c) Engaging in the private practice of his profession unless authorized by the Constitution, law or regulation,
provided that such practice will not conflict or tend to conflict with his official functions;

(d) Recommending any person to any position in a private enterprise which has a regular or pending official
transaction with his office, unless such recommendation or referral is mandated by (1) law, or (2) international
agreements, commitment and obligation, or as part of the functions of his office;

xxxx

(e) Disclosing or misusing confidential or classified information officially known to him by reason of his office and
not made available to the public, to further his private interests or give undue advantage to anyone, or to
prejudice the public interest;

(f) Soliciting or accepting, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of
monetary value which in the course of his official duties or in connection with any operation being regulated by, or
any transaction which may be affected by the functions of, his office. x x x.

xxxx

(g) Obtaining or using any statement filed under the Code for any purpose contrary to morals or public policy or
any commercial purpose other than by news and communications media for dissemination to the general public;

(h) Unfair discrimination in rendering public service due to party affiliation or preference;

(i) Disloyalty to the Republic of the Philippines and to the Filipino people;

(j) Failure to act promptly on letters and request within fifteen (15) days from receipt, except as otherwise
provided in these Rules;

(k) Failure to process documents and complete action on documents and papers within a reasonable time from
preparation thereof, except as otherwise provided in these Rules;

(l) Failure to attend to anyone who wants to avail himself of the services of the office, or to act promptly and
expeditiously on public personal transactions;
(m) Failure to file sworn statements of assets, liabilities and net worth, and disclosure of business interests and
financial connections; and

(n) Failure to resign from his position in the private business enterprise within thirty (30) days from assumption of
public office when conflict of interest arises, and/or failure to divest himself of his shareholdings or interests in
private business enterprise within sixty (60) days from such assumption of public office when conflict of interest
arises: Provided, however, that for those who are already in the service and a conflict of interest arises, the official
or employee must either resign or divest himself of said interests within the periods herein-above provided,
reckoned from the date when the conflict of interest had arisen.

In Domingo v. Office of the Ombudsman,[20] this Court had the occasion to rule that failure to abide by the norms of
conduct under Section 4(A)(b) of R.A. No. 6713, in relation to its implementing rules, is not a ground for
disciplinary action, to wit:

The charge of violation of Section 4(b) of R.A. No. 6713 deserves further comment. The provision commands that
"public officials and employees shall perform and discharge their duties with the highest degree of excellence,
professionalism, intelligence and skill." Said provision merely enunciates "professionalism as an ideal norm of
conduct to be observed by public servants, in addition to commitment to public interest, justness and sincerity,
political neutrality, responsiveness to the public, nationalism and patriotism, commitment to democracy and
simple living. Following this perspective, Rule V of the Implementing Rules of R.A. No. 6713 adopted by the Civil
Service Commission mandates the grant of incentives and rewards to officials and employees who demonstrate
exemplary service and conduct based on their observance of the norms of conduct laid down in Section 4. In other
words, under the mandated incentives and rewards system, officials and employees who comply with the high
standard set by law would be rewarded. Those who fail to do so cannot expect the same favorable
treatment. However, the Implementing Rules does not provide that they will have to be sanctioned for failure
to observe these norms of conduct. Indeed, Rule X of the Implementing Rules affirms as grounds for
administrative disciplinary action only acts "declared unlawful or prohibited by the Code." Rule X specifically
mentions at least twenty three (23) acts or omissions as grounds for administrative disciplinary action. Failure
to abide by the norms of conduct under Section 4(b) of R.A. No. 6713 is not one of them.(Emphasis supplied.)

Consequently, the Court dismissed the charge of violation of Section 4(A)(b) of R.A. No. 6713 in that case.

We find no compelling reason to depart from our pronouncement in Domingo. Thus, we reverse the CA and
Ombudsman that petitioner is administratively liable under Section 4(A)(b) of R.A. No. 6713. In so ruling, we do no
less and no more than apply the law and its implementing rules issued by the CSC under the authority given to it by
Congress. Needless to stress, said rules partake the nature of a statute and are binding as if written in the law
itself. They have the force and effect of law and enjoy the presumption of constitutionality and legality until they
are set aside with finality in an appropriate case by a competent court. [21]

But is petitioner nonetheless guilty of grave misconduct, which is a ground for disciplinary action under R.A. No.
6713?

We also rule in the negative.

Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior
or gross negligence by a public officer. The misconduct is grave if it involves any of the additional elements of
corruption, willful intent to violate the law or to disregard established rules, which must be proved by substantial
evidence. Otherwise, the misconduct is only simple.[22] Conversely, one cannot be found guilty of misconduct in
the absence of substantial evidence. In one case, we affirmed a finding of grave misconduct because there was
substantial evidence of voluntary disregard of established rules in the procurement of supplies as well as of
manifest intent to disregard said rules.[23] We have also ruled that complicity in the transgression of a regulation of
the Bureau of Internal Revenue constitutes simple misconduct only as there was failure to establish flagrancy in
respondent's act for her to be held liable of gross misconduct. [24] On the other hand, we have likewise dismissed a
complaint for knowingly rendering an unjust order, gross ignorance of the law, and grave misconduct, since the
complainant did not even indicate the particular acts of the judge which were allegedly violative of the Code of
Judicial Conduct.[25]

In this case, respondent failed to prove (1) petitioner's violation of an established and definite rule of action or
unlawful behavior or gross negligence, and (2) any of the aggravating elements of corruption, willful intent to
violate a law or to disregard established rules on the part of petitioner. In fact, respondent could merely point to
petitioner's alleged failure to observe the mandate that public office is a public trust when petitioner allegedly
meddled in an affair that belongs to another agency and received an amount for undelivered work.

True, public officers and employees must be guided by the principle enshrined in the Constitution that public office
is a public trust. However, respondent's allegation that petitioner meddled in an affair that belongs to another
agency is a serious but unproven accusation. Respondent did not even say what acts of interference were done by
petitioner. Neither did respondent say in which government agency petitioner committed interference. And
causing the survey of respondent's land can hardly be considered as meddling in the affairs of another government
agency by petitioner who is connected with the Population Commission. It does not show that petitioner made an
illegal deal or any deal with any government agency. Even the Ombudsman has recognized this fact. The survey
shows only that petitioner contracted a surveyor. Respondent said nothing on the propriety or legality of what
petitioner did. The survey shows that petitioner also started to work on her task under their agreement. Thus,
respondent's allegation that petitioner received an amount for undelivered work is not entirely correct. Rather,
petitioner failed to fully accomplish her task in view of the legal obstacle that the land is government property.

However, the foregoing does not mean that petitioner is absolved of any administrative liability.

But first, we need to modify the CA finding that petitioner demanded the amount of P50,000 from respondent
because respondent did not even say that petitioner demanded money from her. [26] We find in the allegations and
counter-allegations that respondent came to petitioner's house in Biñan, Laguna, and asked petitioner if she can
help respondent secure a title to her land which she intends to sell. Petitioner agreed to help. When respondent
asked about the cost, petitioner said P150,000 and accepted P50,000 from respondent to cover the initial
expenses.[27]

We agree with the common finding of the Ombudsman and the CA that, in the aftermath of the aborted
transaction, petitioner still failed to return the amount she accepted. As aptly stated by the Ombudsman, if
petitioner was persistent in returning the amount of P50,000 until the preliminary investigation of the estafa case
on September 18, 2003,[28] there would have been no need for the parties' agreement that petitioner be given
until February 28, 2003 to pay said amount including interest. Indeed, petitioner's belated attempt to return the
amount was intended to avoid possible sanctions and impelled solely by the filing of the estafa case against her.

For reneging on her promise to return aforesaid amount, petitioner is guilty of conduct unbecoming a public
officer. In Joson v. Macapagal, we have also ruled that the respondents therein were guilty of conduct
unbecoming of government employees when they reneged on their promise to have pertinent documents
notarized and submitted to the Government Service Insurance System after the complainant's rights over the
subject property were transferred to the sister of one of the respondents. [29] Recently, in Assistant Special
Prosecutor III Rohermia J. Jamsani-Rodriguez v. Justices Gregory S. Ong, et al., we said that unbecoming conduct
means improper performance and applies to a broader range of transgressions of rules not only of social behavior
but of ethical practice or logical procedure or prescribed method. [30]

This Court has too often declared that any act that falls short of the exacting standards for public office shall not be
countenanced.[31] The Constitution categorically declares as follows:
SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and
lead modest lives.[32]

Petitioner should have complied with her promise to return the amount to respondent after failing to accomplish
the task she had willingly accepted. However, she waited until respondent sued her for estafa, thus reinforcing the
latter's suspicion that petitioner misappropriated her money. Although the element of deceit was not proven in
the criminal case respondent filed against the petitioner, it is clear that by her actuations, petitioner violated basic
social and ethical norms in her private dealings. Even if unrelated to her duties as a public officer, petitioner's
transgression could erode the public's trust in government employees, moreso because she holds a high position in
the service.

As to the penalty, we reprimanded the respondents in Joson and imposed a fine in Jamsani-Rodriguez. Under the
circumstances of this case, a fine of P15,000 in lieu of the three months suspension is proper. In imposing said
fine, we have considered as a mitigating circumstance petitioner's 37 years of public service and the fact that this is
the first charge against her.[33] Section 53[34] of the Revised Uniform Rules on Administrative Cases in the Civil
Service provides that mitigating circumstances such as length of service shall be considered. And since petitioner
has earlier agreed to return the amount of P50,000 including interest, we find it proper to order her to comply
with said agreement. Eventually, the parties may even find time to rekindle their friendship.

WHEREFORE, we SET ASIDE the Decision dated October 31, 2006 of the Court of Appeals and its Resolution dated
June 8, 2007 in CA-G.R. SP No. 83422, as well as the Decision dated January 6, 2004 and Order dated March 15,
2004 of the Ombudsman in OMB-L-A-03-0552-F, and ENTER a new judgment as follows:

We find petitioner GUILTY of conduct unbecoming a public officer and impose upon her a FINE of P15,000.00 to be
paid at the Office of the Ombudsman within five (5) days from finality of this Decision.

We also ORDER petitioner to return to respondent the amount of P50,000.00 with interest thereon at 12% per
annum from March 2001 until the said amount shall have been fully paid.

With costs against the petitioner.

SO ORDERE