Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 179267               June 25, 2013

JESUS C. GARCIA, Petitioner,
vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-
Branch 41, Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of
minor children, namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed
GARCIA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or
93 percent of a total population of 93.3 million – adhering to the teachings of Jesus Christ.1 Yet,
the admonition for husbands to love their wives as their own bodies just as Christ loved the
church and gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of
violence against Filipino women. The National Commission on the Role of Filipino Women
(NCRFW) reported that, for the years 2000-2003, "female violence comprised more than 90o/o
of all forms of abuse and violence and more than 90% of these reported cases were committed by
the women's intimate partners such as their husbands and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress
enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and
Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor,
and for Other Purposes." It took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women
and their children (VAWC) perpetrated by women's intimate partners, i.e, husband; former
husband; or any person who has or had a sexual or dating relationship, or with whom the woman
has a common child.5 The law provides for protection orders from the barangay and the courts to
prevent the commission of further acts of VAWC; and outlines the duties and responsibilities of
barangay officials, law enforcers, prosecutors and court personnel, social workers, health care
providers, and other local government officials in responding to complaints of VAWC or
requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative
of the equal protection and due process clauses, and an undue delegation of judicial power to
barangay officials.
 The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of
her minor children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court
(RTC) of Bacolod City for the issuance of a Temporary Protection Order (TPO) against her
husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of
physical abuse; emotional, psychological, and economic violence as a result of marital infidelity
on the part of petitioner, with threats of deprivation of custody of her children and of financial
support.7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former was
eleven years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old,
who is the natural child of petitioner but whom private respondent adopted; Jessie Anthone J.
Garcia, 6 years old; and Joseph Eduard J. Garcia, 3 years old.8

Private respondent described herself as a dutiful and faithful wife, whose life revolved around
her husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant,
controlling, and demands absolute obedience from his wife and children. He forbade private
respondent to pray, and deliberately isolated her from her friends. When she took up law, and
even when she was already working part time at a law office, petitioner trivialized her ambitions
and prevailed upon her to just stay at home. He was often jealous of the fact that his attractive
wife still catches the eye of some men, at one point threatening that he would have any man
eyeing her killed.9

Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's
Bank, Bacolod City, who is the godmother of one of their sons. Petitioner admitted to the affair
when private respondent confronted him about it in 2004. He even boasted to the household help
about his sexual relations with said bank manager. Petitioner told private respondent, though,
that he was just using the woman because of their accounts with the bank.10

Petitioner's infidelity spawned a series of fights that left private respondent physically and
emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on both
arms and shook her with such force that caused bruises and hematoma. At another time,
petitioner hit private respondent forcefully on the lips that caused some bleeding. Petitioner
sometimes turned his ire on their daughter, Jo-Ann, who had seen the text messages he sent to
his paramour and whom he blamed for squealing on him. He beat Jo-Ann on the chest and
slapped her many times. When private respondent decided to leave petitioner, Jo-Ann begged her
mother to stay for fear that if the latter leaves, petitioner would beat her up. Even the small boys
are aware of private respondent's sufferings. Their 6-year-old son said that when he grows up, he
would beat up his father because of his cruelty to private respondent.11

All the emotional and psychological turmoil drove private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found by
her son bleeding on the floor. Petitioner simply fled the house instead of taking her to the
hospital. Private respondent was hospitalized for about seven (7) days in which time petitioner
never bothered to visit, nor apologized or showed pity on her. Since then, private respondent has
been undergoing therapy almost every week and is taking anti-depressant medications.12

When private respondent informed the management of Robinson's Bank that she intends to file
charges against the bank manager, petitioner got angry with her for jeopardizing the manager's
job. He then packed his things and told private respondent that he was leaving her for good. He
even told private respondent's mother, who lives with them in the family home, that private
respondent should just accept his extramarital affair since he is not cohabiting with his paramour
and has not sired a child with her.13

Private respondent is determined to separate from petitioner but she is afraid that he would take
her children from her and deprive her of financial support. Petitioner had previously warned her
that if she goes on a legal battle with him, she would not get a single centavo.14

Petitioner controls the family businesses involving mostly the construction of deep wells. He is
the President of three corporations – 326 Realty Holdings, Inc., Negros Rotadrill Corporation,
and J-Bros Trading Corporation – of which he and private respondent are both stockholders. In
contrast to the absolute control of petitioner over said corporations, private respondent merely
draws a monthly salary of ₱20,000.00 from one corporation only, the Negros Rotadrill
Corporation. Household expenses amounting to not less than ₱200,000.00 a month are paid for
by private respondent through the use of credit cards, which, in turn, are paid by the same
corporation together with the bills for utilities.15

On the other hand, petitioner receives a monthly salary of ₱60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of thousands of
pesos from the corporations.16 After private respondent confronted him about the affair,
petitioner forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of
the corporations are conducted, thereby depriving her of access to full information about said
businesses. Until the filing of the petition a quo, petitioner has not given private respondent an
accounting of the businesses the value of which she had helped raise to millions of pesos.17

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against the private
respondent and her children exists or is about to recur, the RTC issued a TPO18 on March 24,
2006 effective for thirty (30) days, which is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family
home within 24 hours from receipt of the Temporary Restraining Order and if he refuses,
ordering that he be removed by police officers from the conjugal dwelling; this order is
enforceable notwithstanding that the house is under the name of 236 Realty Holdings Inc.
(Republic Act No. 9262 states "regardless of ownership"), this is to allow the Petitioner
(private respondent herein) to enter the conjugal dwelling without any danger from the
Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the
Petitioner decides to return to the conjugal dwelling to remove things, the Petitioner shall
be assisted by police officers when re-entering the family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March
2006 because of the danger that the Respondent will attempt to take her children from her
when he arrives from Manila and finds out about this suit.

b) To stay away from the petitioner and her children, mother and all her household help
and driver from a distance of 1,000 meters, and shall not enter the gate of the subdivision
where the Petitioner may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner,
directly or indirectly, or through other persons, or contact directly or indirectly her
children, mother and household help, nor send gifts, cards, flowers, letters and the like.
Visitation rights to the children may be subject of a modified TPO in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and
ordering the Philippine National Police Firearms and Explosives Unit and the Provincial
Director of the PNP to cancel all the Respondent's firearm licenses. He should also be
ordered to surrender any unlicensed firearms in his possession or control.

e) To pay full financial support for the Petitioner and the children, including rental of a
house for them, and educational and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he received
from all the corporations from 1 January 2006 up to 31 March 2006, which himself and
as President of the corporations and his Comptroller, must submit to the Court not later
than 2 April 2006. Thereafter, an accounting of all these funds shall be reported to the
court by the Comptroller, copy furnished to the Petitioner, every 15 days of the month,
under pain of Indirect Contempt of Court.

h) To ensure compliance especially with the order granting support pendente lite, and
considering the financial resources of the Respondent and his threat that if the Petitioner
sues she will not get a single centavo, the Respondent is ordered to put up a BOND TO
KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended
TPO,20 effective for thirty (30) days, which included the following additional provisions:
 i) The petitioners (private respondents herein) are given the continued use of the Nissan
Patrol and the Starex Van which they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in Parañaque,
the continued use of the Starex van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient
sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of One
Hundred Fifty Thousand Pesos (Php 150,000.00) per month plus rental expenses of Fifty
Thousand Pesos (Php 50,000.00) per month until the matter of support could be finally
resolved.

Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds
that it did not (1) comply with the three-day notice rule, and (2) contain a notice of hearing. He
further asked that the TPO be modified by (1) removing one vehicle used by private respondent
and returning the same to its rightful owner, the J-Bros Trading Corporation, and (2) cancelling
or reducing the amount of the bond from ₱5,000,000.00 to a more manageable level at
₱100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him
visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the
following modifications prayed for by private respondent:

a) That respondent (petitioner herein) return the clothes and other personal belongings of
Rosalie and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours
from receipt of the Temporary Protection Order by his counsel, otherwise be declared in
Indirect Contempt of Court;

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal
house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt
of the Temporary Protection Order by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to
remove Respondent from the conjugal dwelling within eight (8) hours from receipt of the
Temporary Protection Order by his counsel, and that he cannot return until 48 hours after
the petitioners have left, so that the petitioner Rosalie and her representatives can remove
things from the conjugal home and make an inventory of the household furniture,
equipment and other things in the conjugal home, which shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from
 receipt of the Temporary Protection Order by his counsel, otherwise be declared in
indirect contempt of Court;

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of
Court within 24 hours from receipt of the Temporary Protection Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children upon
presentation of proof of payment of such expenses.23

Claiming that petitioner continued to deprive them of financial support; failed to faithfully
comply with the TPO; and committed new acts of harassment against her and their children,
private respondent filed another application24 for the issuance of a TPO ex parte. She alleged
inter

alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the
latter was purportedly no longer president, with the end in view of recovering the Nissan Patrol
and Starex Van used by private respondent and the children. A writ of replevin was served upon
private respondent by a group of six or seven policemen with long firearms that scared the two
small boys, Jessie Anthone and Joseph Eduard.25

While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to
kidnap him, which incident traumatized the boy resulting in his refusal to go back to school. On
another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann subsequently filed a criminal
complaint against her father for violation of R.A. 7610, also known as the "Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working
at the conjugal home of a complaint for kidnapping and illegal detention against private
respondent. This came about after private respondent, armed with a TPO, went to said home to
get her and her children's belongings. Finding some of her things inside a housemaid's (Sheryl
Jamola) bag in the maids' room, private respondent filed a case for qualified theft against
Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as
follows:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

1) Prohibited from threatening to commit or committing, personally or through another,

acts of violence against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise

communicating in any form with the offended party, either directly or indirectly;
 3) Required to stay away, personally or through his friends, relatives, employees or
agents, from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's
three brothers, her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo
Hontiveros, laundrywoman Mercedita Bornales, security guard Darwin Gayona and the
petitioner's other household helpers from a distance of 1,000 meters, and shall not enter
the gate of the subdivision where the Petitioners are temporarily residing, as well as from
the schools of the three children; Furthermore, that respondent shall not contact the
schools of the children directly or indirectly in any manner including, ostensibly to pay
for their tuition or other fees directly, otherwise he will have access to the children
through the schools and the TPO will be rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther
PPK to the Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and

Php50,000.00 for rental for the period from August 6 to September 6, 2006; and support
in arrears from March 2006 to August 2006 the total amount of Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00

and Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a
Starex van with Plate No. FFD 991 and should the respondent fail to deliver said
vehicles, respondent is ordered to provide the petitioner another vehicle which is the one
taken by J Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the
conjugal assets, or those real properties in the name of Jesus Chua Garcia only and those
in which the conjugal partnership of gains of the Petitioner Rosalie J. Garcia and
respondent have an interest in, especially the conjugal home located in No. 14, Pitimini
St., Capitolville Subdivision, Bacolod City, and other properties which are conjugal
assets or those in which the conjugal partnership of gains of Petitioner Rosalie J. Garcia
and the respondent have an interest in and listed in Annexes "I,""I-1," and "I-2,"
including properties covered by TCT Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served
a copy of this TEMPORARY PROTECTION ORDER and are ordered not to allow the
transfer, sale, encumbrance or disposition of these above-cited properties to any person,
entity or corporation without the personal presence of petitioner Rosalie J. Garcia, who
shall affix her signature in the presence of the Register of Deeds, due to the fear of
petitioner Rosalie that her signature will be forged in order to effect the encumbrance or
sale of these properties to defraud her or the conjugal partnership of gains.

In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another
ten (10) days, and gave petitioner a period of five (5) days within which to show cause why the
TPO should not be renewed, extended, or modified. Upon petitioner's manifestation,30 however,
that he has not received a copy of private respondent's motion to modify/renew the TPO, the trial
court directed in its Order31 dated October 6, 2006 that petitioner be furnished a copy of said
motion. Nonetheless, an Order32 dated a day earlier, October 5, had already been issued renewing
the TPO dated August 23, 2006. The pertinent portion is quoted hereunder:

xxxx

x x x it appearing further that the hearing could not yet be finally terminated, the Temporary
Protection Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days
and continuously extended and renewed for thirty (30) days, after each expiration, until further
orders, and subject to such modifications as may be ordered by the court.

After having received a copy of the foregoing Order, petitioner no longer submitted the required
comment to private respondent's motion for renewal of the TPO arguing that it would only be an
"exercise in futility."33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA)
a petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and
temporary restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative
of the due process and the equal protection clauses, and (2) the validity of the modified TPO
issued in the civil case for being "an unwanted product of an invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO)
against the enforcement of the TPO, the amended TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for
failure of petitioner to raise the constitutional issue in his pleadings before the trial court in the
civil case, which is clothed with jurisdiction to resolve the same. Secondly, the challenge to the
validity

of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by
the trial court constituted a collateral attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the
Resolution37 dated August 14, 2007, petitioner is now before us alleging that –

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY

THAT THE ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST
OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK
ON THE VALIDITY OF THE LAW.
 II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE

THAT R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE.

III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT

R.A. 9262 RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE
TO THE POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL
INSTITUTION.

V.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS
INVALID AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE
DELEGATION OF JUDICIAL POWER TO THE BARANGAY OFFICIALS. 38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of R.A.
9262, we shall first tackle the propriety of the dismissal by the appellate court of the petition for
prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the earliest opportunity so
that if not raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in
the trial court, it will not be considered on appeal.39 Courts will not anticipate a question of
constitutional law in advance of the necessity of deciding it.40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod
City, petitioner argues that the Family Court has limited authority and jurisdiction that is
"inadequate to tackle the complex issue of constitutionality."41

We disagree.

Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as
Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997,"
family courts have exclusive original jurisdiction to hear and decide cases of domestic violence
against women and children.42 In accordance with said law, the Supreme Court designated from
among the branches of the Regional Trial Courts at least one Family Court in each of several key
cities identified.43 To achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now
provides that Regional Trial Courts designated as Family Courts shall have original and
exclusive jurisdiction over cases of VAWC defined under the latter law, viz:

SEC. 7. Venue. – The Regional Trial Court designated as a Family Court shall have original and
exclusive jurisdiction over cases of violence against women and their children under this law. In
the absence of such court in the place where the offense was committed, the case shall be filed in
the Regional Trial Court where the crime or any of its elements was committed at the option of
the complainant. (Emphasis supplied)

Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of
authority as a court of general original jurisdiction to pass upon all kinds of cases whether civil,
criminal, special proceedings, land registration, guardianship, naturalization, admiralty or
insolvency.44 It is settled that RTCs have jurisdiction to resolve the constitutionality of a
statute,45 "this authority being embraced in the general definition of the judicial power to
determine what are the valid and binding laws by the criterion of their conformity to the
fundamental law."46 The Constitution vests the power of judicial review or the power to declare
the constitutionality or validity of a law, treaty, international or executive agreement, presidential
decree, order, instruction, ordinance, or regulation not only in this Court, but in all RTCs.47 We
said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution contemplates that the
inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law,
for it speaks of appellate review of final judgments of inferior courts in cases where such
constitutionality happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in
part as follows:

SEC. 5. The Supreme Court shall have the following powers:

xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is
in question.

xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could
have been raised at the earliest opportunity in his Opposition to the petition for protection order
before the RTC of Bacolod City, which had jurisdiction to determine the same, subject to the
review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children,
lays down a new kind of procedure requiring the respondent to file an opposition to the petition
and not an answer.49 Thus:

SEC. 20. Opposition to petition. – (a) The respondent may file an opposition to the petition
which he himself shall verify. It must be accompanied by the affidavits of witnesses and shall
show cause why a temporary or permanent protection order should not be issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be the subject thereof may be litigated in a
separate civil action. (Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim
and third-party complaint are to be excluded from the opposition, the issue of constitutionality
cannot likewise be raised therein. A counterclaim is defined as any claim for money or other
relief which a defending party may have against an opposing party.50 A cross-claim, on the other
hand, is any claim by one party against a co-party arising out of the transaction or occurrence
that is the subject matter either of the original action or of a counterclaim therein.51 Finally, a
third-party complaint is a claim that a defending party may, with leave of court, file against a
person not a party to the action for contribution, indemnity, subrogation or any other relief, in
respect of his opponent's claim.52 As pointed out by Justice Teresita J. Leonardo-De Castro, the
unconstitutionality of a statute is not a cause of action that could be the subject of a counterclaim,
cross-claim or a third-party complaint. Therefore, it is not prohibited from being raised in the
opposition in view of the familiar maxim expressio unius est exclusio alterius.

Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the
right of private respondent to a protection order is founded solely on the very statute the validity
of which is being attacked53 by petitioner who has sustained, or will sustain, direct injury as a
result of its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and
purposes, a valid cause for the non-issuance of a protection order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred
petitioner from raising the same in his Opposition. The question relative to the constitutionality
of a statute is one of law which does not need to be supported by evidence.54 Be that as it may,
Section 25 of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine
legal issues, among others, viz:

SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it
may issue an order containing the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and will be
presented;
 (d) Names of witnesses who will be ordered to present their direct testimonies in the form
of affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in one
day, to the extent possible, within the 30-day period of the effectivity of the temporary
protection order issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order
issued is due to expire, the trial court may extend or renew the said order for a period of thirty
(30) days each time until final judgment is rendered. It may likewise modify the extended or
renewed temporary protection order as may be necessary to meet the needs of the parties. With
the private respondent given ample protection, petitioner could proceed to litigate the
constitutional issues, without necessarily running afoul of the very purpose for the adoption of
the rules on summary procedure.

In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition
with prayer for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698).
Petitioner may have proceeded upon an honest belief that if he finds succor in a superior court,
he could be granted an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC
expressly disallows the filing of a petition for certiorari, mandamus or prohibition against any
interlocutory order issued by the trial court. Hence, the 60-day TRO issued by the appellate court
in this case against the enforcement of the TPO, the amended TPOs and other orders pursuant
thereto was improper, and it effectively hindered the case from taking its normal course in an
expeditious and summary manner.

As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited.
Moreover, if the appeal of a judgment granting permanent protection shall not stay its
enforcement,55 with more reason that a TPO, which is valid only for thirty (30) days at a
time,56 should not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United
States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their
separate and distinct prohibitions, are not to be granted as a matter of course, even if such
statutes are unconstitutional. No citizen or member of the community is immune from
prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution
even though alleged to be unauthorized and, hence, unlawful is not alone ground for relief in
equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff
who seeks its aid. (Citations omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully the
merits of the case. It bears stressing, however, that protection orders are granted ex parte so as to
protect women and their children from acts of violence. To issue an injunction against such
orders will defeat the very purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine
novel issues, or issues of first impression, with far-reaching implications. We have, time and
again, discharged our solemn duty as final arbiter of constitutional issues, and with more reason
now, in view of private respondent's plea in her Comment59 to the instant Petition that we should
put the challenge to the constitutionality of R.A. 9262 to rest. And so we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child
abuse, which could very well be committed by either the husband or the wife, gender alone is not
enough basis to deprive the husband/father of the remedies under the law.60

A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A. 9262,
reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a "synthesized measure"62 – an amalgamation
of two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in
Intimate Relationships Act"63 – providing protection to "all family members, leaving no one in
isolation" but at the same time giving special attention to women as the "usual victims" of
violence and abuse,64 nonetheless, it was eventually agreed that men be denied protection under
the same measure. We quote pertinent portions of the deliberations:

Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups
have expressed concerns and relayed these concerns to me that if we are to include domestic
violence apart from against women as well as other members of the household, including
children or the husband, they fear that this would weaken the efforts to address domestic
violence of which the main victims or the bulk of the victims really are the wives, the spouses or
the female partners in a relationship. We would like to place that on record. How does the good
Senator respond to this kind of observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR"
Women in Intimate Relationship. They do not want to include men in this domestic violence. But
plenty of men are also being abused by women. I am playing safe so I placed here members of
the family, prescribing penalties therefor and providing protective measures for victims. This
includes the men, children, live-in, common-law wives, and those related with the family.65

xxx

Wednesday, January 14, 2004

xxxx
The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion whether to limit this to
women and not to families which was the issue of the AWIR group. The understanding that I
have is that we would be having a broader scope rather than just women, if I remember correctly,
Madam sponsor.

Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong.
However, I believe that there is a need to protect women's rights especially in the domestic
environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the
opportunity to file a case against their spouses, their live-in partners after years, if not decade, of
battery and abuse. If we broaden the scope to include even the men, assuming they can at all be
abused by the women or their spouses, then it would not equalize the already difficult situation
for women, Mr. President.

I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure
that the men in this Chamber who love their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world. Whether we like it or not, no
matter how empowered the women are, we are not given equal opportunities especially in the
domestic environment where the macho Filipino man would always feel that he is stronger, more
superior to the Filipino woman.

xxxx

The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill
because the family members have been included in this proposed measure since the other
members of the family other than women are also possible victims of violence. While women are
most likely the intended victims, one reason incidentally why the measure focuses on women,
the fact remains that in some relatively few cases, men also stand to be victimized and that
children are almost always the helpless victims of violence. I am worried that there may not be
enough protection extended to other family members particularly children who are excluded.
Although Republic Act No. 7610, for instance, more or less, addresses the special needs of
abused children. The same law is inadequate. Protection orders for one are not available in said
law.
I am aware that some groups are apprehensive about granting the same protection to men, fearing
that they may use this law to justify their abusive behavior against women. However, we should
also recognize that there are established procedures and standards in our courts which give
credence to evidentiary support and cannot just arbitrarily and whimsically entertain baseless
complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the family as
the basic social institution. Though I recognize the unequal power relations between men and
women in our society, I believe we have an obligation to uphold inherent rights and dignity of
both husband and wife and their immediate family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family members as a
critical input arrived at after a series of consultations/meetings with various NGOs, experts,
sports groups and other affected sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be
removing the "men and children" in this particular bill and focus specifically on women alone.
That will be the net effect of that proposed amendment. Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is
inclined to accept the proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this, I
will propose an amendment to the amendment rather than object to the amendment, Mr.
President.

xxxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished
proponent of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas
malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi
iyan. Okey lang iyan. But I cannot agree that we remove the children from this particular
measure.

So, if I may propose an amendment –

The President Pro Tempore. To the amendment.

Senator Sotto. – more than the women, the children are very much abused. As a matter of fact, it
is not limited to minors. The abuse is not limited to seven, six, 5-year-old children. I have seen
14, 15-year-old children being abused by their fathers, even by their mothers. And it breaks my
heart to find out about these things.

Because of the inadequate existing law on abuse of children, this particular measure will update
that. It will enhance and hopefully prevent the abuse of children and not only women.

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill
but not the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment,
as amended, is approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a
statute.67 Hence, we dare not venture into the real motivations and wisdom of the members of
Congress in limiting the protection against violence and abuse under R.A. 9262 to women and
children only. No proper challenge on said grounds may be entertained in this proceeding.
Congress has made its choice and it is not our prerogative to supplant this judgment. The choice
may be perceived as erroneous but even then, the remedy against it is to seek its amendment or
repeal by the legislative. By the principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency of any law.68 We only step in when
there is a violation of the Constitution. However, none was sufficiently shown in this case.
R.A. 9262 does not violate the guaranty of equal protection of the laws.

Equal protection simply requires that all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in
the early case of Victoriano v. Elizalde Rope Workers' Union69 is instructive:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the
laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which are
different in fact be treated in law as though they were the same. The equal protection clause does
not forbid discrimination as to things that are different. It does not prohibit legislation which is
limited either in the object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in
law, as in the other departments of knowledge or practice, is the grouping of things in
speculation or practice because they agree with one another in certain particulars. A law is not
invalid because of simple inequality. The very idea of classification is that of inequality, so that it
goes without saying that the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be reasonable, which
means that the classification should be based on substantial distinctions which make for real
differences; that it must be germane to the purpose of the law; that it must not be limited to
existing conditions only; and that it must apply equally to each member of the class. This Court
has held that the standard is satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. (Emphasis supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a
valid classification as shall hereinafter be discussed and, as such, did not violate the equal
protection clause by favoring women over men as victims of violence and abuse to whom the
State extends its protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more likely
than men to be victims of violence; and the widespread gender bias and prejudice against women
all make for real differences justifying the classification under the law. As Justice McIntyre
succinctly states, "the accommodation of differences ... is the essence of true equality."70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for Gender
Equality and Women's Empowerment), violence against women (VAW) is deemed to be closely
linked with the unequal power relationship between women and men otherwise known as
"gender-based violence". Societal norms and traditions dictate people to think men are the
leaders, pursuers, providers, and take on dominant roles in society while women are nurturers,
men's companions and supporters, and take on subordinate roles in society. This perception leads
to men gaining more power over women. With power comes the need to control to retain that
power. And VAW is a form of men's expression of controlling women to retain power.71

The United Nations, which has long recognized VAW as a human rights issue, passed its
Resolution 48/104 on the Declaration on Elimination of Violence Against Women on December
20, 1993 stating that "violence against women is a manifestation of historically unequal power
relations between men and women, which have led to domination over and discrimination
against women by men and to the prevention of the full advancement of women, and that
violence against women is one of the crucial social mechanisms by which women are forced into
subordinate positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based
violence and developments in advocacies to eradicate VAW, in his remarks delivered during the
Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent
portions of which are quoted hereunder:

History reveals that most societies sanctioned the use of violence against women. The patriarch
of a family was accorded the right to use force on members of the family under his control. I
quote the early studies:

Traditions subordinating women have a long history rooted in patriarchy – the institutional rule
of men. Women were seen in virtually all societies to be naturally inferior both physically and
intellectually. In ancient Western societies, women whether slave, concubine or wife, were under
the authority of men. In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism, Christianity and other religions oriented
towards the patriarchal family strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent
Blackstone has been quoted in his commentaries as saying husband and wife were one and that
one was the husband. However, in the late 1500s and through the entire 1600s, English common
law began to limit the right of husbands to chastise their wives. Thus, common law developed
the rule of thumb, which allowed husbands to beat their wives with a rod or stick no thicker than
their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict
corporeal punishment ceased. Even then, the preservation of the family was given more
importance than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the English
common law. In 1871, the Supreme Court of Alabama became the first appellate court to strike
down the common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke
her, spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now
acknowledged by our law... In person, the wife is entitled to the same protection of the law that
the husband can invoke for himself.

As time marched on, the women's advocacy movement became more organized. The temperance
leagues initiated it. These leagues had a simple focus. They considered the evils of alcoholism as
the root cause of wife abuse. Hence, they demonstrated and picketed saloons, bars and their
husbands' other watering holes. Soon, however, their crusade was joined by suffragette
movements, expanding the liberation movement's agenda. They fought for women's right to vote,
to own property, and more. Since then, the feminist movement was on the roll.

The feminist movement exposed the private invisibility of the domestic violence to the public
gaze. They succeeded in transforming the issue into an important public concern. No less than
the United States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women are the victims
of severe assaults by their male partners. In a 1985 survey, women reported that nearly one of
every eight husbands had assaulted their wives during the past year. The [American Medical
Association] views these figures as "marked underestimates," because the nature of these
incidents discourages women from reporting them, and because surveys typically exclude the
very poor, those who do not speak English well, and women who are homeless or in institutions
or hospitals when the survey is conducted. According to the AMA, "researchers on family
violence agree that the true incidence of partner violence is probably double the above estimates;
or four million severely assaulted women per year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically
assaulted by a partner or ex-partner during their lifetime... Thus on an average day in the United
States, nearly 11,000 women are severely assaulted by their male partners. Many of these
incidents involve sexual assault... In families where wife beating takes place, moreover, child
abuse is often present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible
form of abuse. Psychological abuse, particularly forced social and economic isolation of women,
is also common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive no
superior alternative...Many abused women who find temporary refuge in shelters return to their
husbands, in large part because they have no other source of income... Returning to one's abuser
can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of
all homicide victims in the United States are killed by their spouses...Thirty percent of female
homicide victims are killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.
In the International front, the women's struggle for equality was no less successful. The United
States Charter and the Universal Declaration of Human Rights affirmed the equality of all human
beings. In 1979, the UN General Assembly adopted the landmark Convention on the Elimination
of all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General Assembly
also adopted the Declaration on the Elimination of Violence Against Women. World conferences
on the role and rights of women have been regularly held in Mexico City, Copenhagen, Nairobi
and Beijing. The UN itself established a Commission on the Status of Women.

The Philippines has been in cadence with the half – and full – steps of all these women's
movements. No less than Section 14, Article II of our 1987 Constitution mandates the State to
recognize the role of women in nation building and to ensure the fundamental equality before the
law of women and men. Our Senate has ratified the CEDAW as well as the Convention on the
Rights of the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted
Rep. Act No. 9262, entitled "An Act Defining Violence Against Women and Their Children,
Providing for Protective Measures for Victims, Prescribing Penalties therefor and for other
Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against
women and children show that –

x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of
total cases reported (9,903). And for the first semester of 2003, there were 2,381 reported cases
out of 4,354 cases which represent 54.31%. xxx (T)he total number of women in especially
difficult circumstances served by the Department of Social Welfare and Development (DSWD)
for the year 2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608
cases. xxx (T)here are 1,091 DSWD cases out of a total number of 3,471 cases for the first
semester of 2003. Female violence comprised more than 90% of all forms of abuse and violence
and more than 90% of these reported cases were committed by the women's intimate partners
such as their husbands and live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on violence

against women across an eight-year period from 2004 to August of 2011 with violations under
R.A. 9262 ranking first among the different VAW categories since its implementation in
2004,74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported 20 20 20 20 20 20 20 201
Cases 04 05 06 07 08 09 10 1

Rape 99 92 65 83 81 77 1,0 832

 7 7 9 7 1 0 42

Incestuo
38 46 26 22 28 27 19 23
us Rape

Attempte 19 14 18 14 20 16 26
201
d Rape 4 8 5 7 4 7 8

Acts of
58 53 38 35 44 48 74
Lascivio 625
0 6 2 8 5 5 5
usness

3, 2, 1, 1, 1, 1,
Physical 2,0 1,5
55 33 89 50 30 49
Injuries 18 88
3 5 2 5 7 8

Sexual
Harassm 53 37 38 46 18 54 83 63
ent

1, 2, 3, 5,
21 92 9,9 9,0
RA 9262 26 38 59 28
8 4 74 21
9 7 9 5

31 22 19 18 22 20 37
Threats 213
9 3 9 2 0 8 4

Seductio
62 19 29 30 19 19 25 15
n

Concubi 12 10 10 10 15
93 99 128
nage 1 2 9 9 8

15 19
RA 9208 17 11 16 24 34 62
2 0

Abductio
n
16 34 23 28 18 25 22
/Kidnapp
ing 29

Unjust 70 18
90 50 59 59 83 155
Vexation 3 3
 6, 5, 4, 5, 6, 9, 15,
12,
Total 27 37 88 72 90 48 10
948
1 4 1 9 5 5 4

*2011 report covers only from January to August

Source: Philippine National Police – Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence against
men in the Philippines because incidents thereof are relatively low and, perhaps, because many
men will not even attempt to report the situation. In the United Kingdom, 32% of women who
had ever experienced domestic violence did so four or five (or more) times, compared with 11%
of the smaller number of men who had ever experienced domestic violence; and women
constituted 89% of all those who had experienced 4 or more incidents of domestic
violence.75 Statistics in Canada show that spousal violence by a woman against a man is less
likely to cause injury than the other way around (18 percent versus 44 percent). Men, who
experience violence from their spouses are much less likely to live in fear of violence at the
hands of their spouses, and much less likely to experience sexual assault. In fact, many cases of
physical violence by a woman against a spouse are in self-defense or the result of many years of
physical or emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the
Philippines, the same cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn
vehicles to pick up, gather and deposit in receptacles the manure emitted or discharged by their
vehicle-drawing animals in any public highways, streets, plazas, parks or alleys, said ordinance
was challenged as violative of the guaranty of equal protection of laws as its application is
limited to owners and drivers of vehicle-drawing animals and not to those animals, although not
utilized, but similarly pass through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be non-
vehicle-drawing animals that also traverse the city roads, "but their number must be negligible
and their appearance therein merely occasional, compared to the rig-drawing ones, as not to
constitute a menace to the health of the community."77 The mere fact that the legislative
classification may result in actual inequality is not violative of the right to equal protection, for
every classification of persons or things for regulation by law produces inequality in some
degree, but the law is not thereby rendered invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against
women are often treated differently and less seriously than other crimes. This was argued by then
United States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence
Against Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the
U.S. Congress' authority under the Commerce and Equal Protection Clauses. He stressed that the
widespread gender bias in the U.S. has institutionalized historic prejudices against victims of
rape or domestic violence, subjecting them to "double victimization" – first at the hands of the
offender and then of the legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police treat it as a private matter and advise the
parties to settle the conflict themselves. Once the complainant brings the case to the prosecutor,
the latter is hesitant to file the complaint for fear that it might later be withdrawn. This lack of
response or reluctance to be involved by the police and prosecution reinforces the escalating,
recurring and often serious nature of domestic violence."80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and irreverent language in reference to the
complainant in a petition for TPO and PPO under R.A. 9262, calling her as "only a live-in
partner" and presenting her as an "opportunist" and a "mistress" in an "illegitimate relationship."
Judge Amila even called her a "prostitute," and accused her of being motivated by "insatiable
greed" and of absconding with the contested property.81 Such remarks betrayed Judge Amila's
prejudices and lack of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and
prejudices against women. As emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting discrimination through specific
measures focused on women does not discriminate against men.82 Petitioner's
contention,83 therefore, that R.A. 9262 is discriminatory and that it is an "anti-male,""husband-
bashing," and "hate-men" law deserves scant consideration. As a State Party to the CEDAW, the
Philippines bound itself to take all appropriate measures "to modify the social and cultural
patterns of conduct of men and women, with a view to achieving the elimination of prejudices
and customary and all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and women."84 Justice Puno
correctly pointed out that "(t)he paradigm shift changing the character of domestic violence from
a private affair to a public offense will require the development of a distinct mindset on the part
of the police, the prosecution and the judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to
address violence committed against women and children, spelled out in its Declaration of Policy,
as follows:

SEC. 2. Declaration of Policy. – It is hereby declared that the State values the dignity of women
and children and guarantees full respect for human rights. The State also recognizes the need to
protect the family and its members particularly women and children, from violence and threats to
their personal safety and security.
Towards this end, the State shall exert efforts to address violence committed against women and
children in keeping with the fundamental freedoms guaranteed under the Constitution and the
provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of
All Forms of Discrimination Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on
August 5, 1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the
Philippines on October 6, 2003.86 This Convention mandates that State parties shall accord to
women equality with men before the law87 and shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family relations on the basis
of equality of men and women.88 The Philippines likewise ratified the Convention on the Rights
of the Child and its two protocols.89 It is, thus, bound by said Conventions and their respective
protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of women
and their children are threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3
thereof defines VAWC as:

x x x any act or a series of acts committed by any person against a woman who is his wife,
former wife, or against a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is likely to result in physical,
sexual, psychological harm or suffering, or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not
limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or
her child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child

as a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;
 b) acts causing or attempting to cause the victim to engage in any sexual activity
by force, threat of force, physical or other harm or threat of physical or other harm
or coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or

emotional suffering of the victim such as but not limited to intimidation, harassment, stalking,
damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It
includes causing or allowing the victim to witness the physical, sexual or psychological abuse of
a member of the family to which the victim belongs, or to witness pornography in any form or to
witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody
and/or visitation of common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent
which includes, but is not limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in any

legitimate profession, occupation, business or activity, except in cases wherein the
other spouse/partner objects on valid, serious and moral grounds as defined in
Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to the

use and enjoyment of the conjugal, community or property owned in common;

3. destroying household property;

4. controlling the victims' own money or properties or solely controlling the

conjugal money or properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable to
research that has exposed the dimensions and dynamics of battery. The acts described here are
also found in the U.N. Declaration on the Elimination of Violence Against Women.90 Hence, the
argument advanced by petitioner that the definition of what constitutes abuse removes the
difference between violent action and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse
petitioner in his defense. The acts enumerated above are easily understood and provide adequate
contrast between the innocent and the prohibited acts. They are worded with sufficient
definiteness that persons of ordinary intelligence can understand what conduct is prohibited, and
need not guess at its meaning nor differ in its application.91 Yet, petitioner insists92 that phrases
like "depriving or threatening to deprive the woman or her child of a legal right,""solely
controlling the conjugal or common money or properties,""marital infidelity," and "causing
mental or emotional anguish" are so vague that they make every quarrel a case of spousal abuse.
However, we have stressed that the "vagueness" doctrine merely requires a reasonable degree of
certainty for the statute to be upheld – not absolute precision or mathematical exactitude, as
petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long
as the metes and bounds of the statute are clearly delineated. An act will not be held invalid
merely because it might have been more explicit in its wordings or detailed in its provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as
the culprit. As defined above, VAWC may likewise be committed "against a woman with whom
the person has or had a sexual or dating relationship." Clearly, the use of the gender-neutral word
"person" who has or had a sexual or dating relationship with the woman encompasses even
lesbian relationships. Moreover, while the law provides that the offender be related or connected
to the victim by marriage, former marriage, or a sexual or dating relationship, it does not
preclude the application of the principle of conspiracy under the Revised Penal Code (RPC).
Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the
victim, were held to be proper respondents in the case filed by the latter upon the allegation that
they and their son (Go-Tan's husband) had community of design and purpose in tormenting her
by giving her insufficient financial support; harassing and pressuring her to be ejected from the
family home; and in repeatedly abusing her verbally, emotionally, mentally and physically.

R.A. 9262 is not violative of the

due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all
protections afforded by the due process clause of the Constitution. Says he: "On the basis of
unsubstantiated allegations, and practically no opportunity to respond, the husband is stripped of
family, property, guns, money, children, job, future employment and reputation, all in a matter of
seconds, without an inkling of what happened."95

A protection order is an order issued to prevent further acts of violence against women and their
children, their family or household members, and to grant other necessary reliefs. Its purpose is
to safeguard the offended parties from further harm, minimize any disruption in their daily life
and facilitate the opportunity and ability to regain control of their life.96

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party
is afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves
to safeguard the victim from greater risk of violence; to accord the victim and any designated
family or household member safety in the family residence, and to prevent the perpetrator from
committing acts that jeopardize the employment and support of the victim. It also enables the
court to award temporary custody of minor children to protect the children from violence, to
prevent their abduction by the perpetrator and to ensure their financial support."97

The rules require that petitions for protection order be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation therein.
Since "time is of the essence in cases of VAWC if further violence is to be prevented,"99 the
court is authorized to issue ex parte a TPO after raffle but before notice and hearing when the
life, limb or property of the victim is in jeopardy and there is reasonable ground to believe that
the order is necessary to protect the victim from the immediate and imminent danger of VAWC
or to prevent such violence, which is about to recur.100
There need not be any fear that the judge may have no rational basis to issue an ex parte order.
The victim is required not only to verify the allegations in the petition, but also to attach her
witnesses' affidavits to the petition.101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due
process. Just like a writ of preliminary attachment which is issued without notice and hearing
because the time in which the hearing will take could be enough to enable the defendant to
abscond or dispose of his property,102 in the same way, the victim of VAWC may already have
suffered harrowing experiences in the hands of her tormentor, and possibly even death, if notice
and hearing were required before such acts could be prevented. It is a constitutional
commonplace that the ordinary requirements of procedural due process must yield to the
necessities of protecting vital public interests,103 among which is protection of women and
children from violence and threats to their personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that
notice be immediately given to the respondent directing him to file an opposition within five (5)
days from service. Moreover, the court shall order that notice, copies of the petition and TPO be
served immediately on the respondent by the court sheriffs. The TPOs are initially effective for
thirty (30) days from service on the respondent.104

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and
service of the notice upon the respondent requiring him to file an opposition to the petition
within five (5) days from service. The date of the preliminary conference and hearing on the
merits shall likewise be indicated on the notice.105

The opposition to the petition which the respondent himself shall verify, must be accompanied
by the affidavits of witnesses and shall show cause why a temporary or permanent protection
order should not be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection order should be
apprised of the charges imputed to him and afforded an opportunity to present his side. Thus, the
fear of petitioner of being "stripped of family, property, guns, money, children, job, future
employment and reputation, all in a matter of seconds, without an inkling of what happened" is a
mere product of an overactive imagination. The essence of due process is to be found in the
reasonable opportunity to be heard and submit any evidence one may have in support of one's
defense. "To be heard" does not only mean verbal arguments in court; one may be heard also
through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is
accorded, there is no denial of procedural due process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO that was granted only two days earlier on April 24, 2006.
Likewise, on May 23, 2006, petitioner filed a motion for the modification of the TPO to allow
him visitation rights to his children. Still, the trial court in its Order dated September 26, 2006,
gave him five days (5) within which to show cause why the TPO should not be renewed or
extended. Yet, he chose not to file the required comment arguing that it would just be an
"exercise in futility," conveniently forgetting that the renewal of the questioned TPO was only
for a limited period (30 days) each time, and that he could prevent the continued renewal of said
order if he can show sufficient cause therefor. Having failed to do so, petitioner may not now be
heard to complain that he was denied due process of law.

Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from
the residence of the victim, regardless of ownership of the residence, is virtually a "blank check"
issued to the wife to claim any property as her conjugal home.108

The wording of the pertinent rule, however, does not by any stretch of the imagination suggest
that this is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some
or all of the following reliefs:

xxxx

(c) Removing and excluding the respondent from the residence of the offended party, regardless
of ownership of the residence, either temporarily for the purpose of protecting the offended
party, or permanently where no property rights are violated. If the respondent must remove
personal effects from the residence, the court shall direct a law enforcement agent to accompany
the respondent to the residence, remain there until the respondent has gathered his things and
escort him from the residence;

xxxx

Indubitably, petitioner may be removed and excluded from private respondent's residence,
regardless of ownership, only temporarily for the purpose of protecting the latter. Such removal
and exclusion may be permanent only where no property rights are violated. How then can the
private respondent just claim any property and appropriate it for herself, as petitioner seems to
suggest?

The non-referral of a VAWC case

to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging

mediation and counseling, the law has done violence to the avowed policy of the State to "protect
and strengthen the family as a basic autonomous social institution."109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue
thereof to a mediator. The reason behind this provision is well-explained by the Commentary on
Section 311 of the Model Code on Domestic and Family Violence as follows:110

This section prohibits a court from ordering or referring parties to mediation in a proceeding for
an order for protection. Mediation is a process by which parties in equivalent bargaining
positions voluntarily reach consensual agreement about the issue at hand. Violence, however, is
not a subject for compromise. A process which involves parties mediating the issue of violence
implies that the victim is somehow at fault. In addition, mediation of issues in a proceeding for
an order of protection is problematic because the petitioner is frequently unable to participate
equally with the person against whom the protection order has been sought. (Emphasis supplied)

There is no undue delegation of

judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court and such other lower courts as may be
established by law" and, thus, protests the delegation of power to barangay officials to issue
protection orders.111 The pertinent provision reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay Protection
Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the
perpetrator to desist from committing acts under Section 5 (a) and (b) of this Act.1âwphi1 A
Punong Barangay who receives applications for a BPO shall issue the protection order to the
applicant on the date of filing after ex parte determination of the basis of the application. If the
Punong Barangay is unavailable to act on the application for a BPO, the application shall be
acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad,
the order must be accompanied by an attestation by the Barangay Kagawad that the Punong
Barangay was unavailable at the time of the issuance of the BPO. BPOs shall be effective for
fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong Barangay or
Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any
barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay.

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 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.112 On the other hand, executive power "is generally
defined as the power to enforce and administer the laws. It is the power of carrying the laws into
practical operation and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or,
in his unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist
from (a) causing physical harm to the woman or her child; and (2) threatening to cause the
woman or her child physical harm. Such function of the Punong Barangay is, thus, purely
executive in nature, in pursuance of his duty under the Local Government Code to "enforce all
laws and ordinances," and to "maintain public order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to inquire into the existence
of certain facts and to apply the law thereto in order to determine what his official conduct shall
be and the fact that these acts may affect private rights do not constitute an exercise of judicial
powers."115
In the same manner as the public prosecutor ascertains through a preliminary inquiry or
proceeding "whether there is reasonable ground to believe that an offense has been committed
and the accused is probably guilty thereof," the Punong Barangay must determine reasonable
ground to believe that an imminent danger of violence against the woman and her children exists
or is about to recur that would necessitate the issuance of a BPO. The preliminary investigation
conducted by the prosecutor is, concededly, an executive, not a judicial, function. The same
holds true with the issuance of a BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and other
law enforcement agencies are required to extend assistance to victims of violence and abuse, it
would be very unlikely that they would remain objective and impartial, and that the chances of
acquittal are nil. As already stated, assistance by barangay officials and other law enforcement
agencies is consistent with their duty to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear
conflict with the Constitution, not merely a doubtful or argumentative one, must be demonstrated
in such a manner as to leave no doubt in the mind of the Court. In other words, the grounds for
nullity must be beyond reasonable doubt.116 In the instant case, however, no concrete evidence
and convincing arguments were presented by petitioner to warrant a declaration of the
unconstitutionality of R.A. 9262, which is an act of Congress and signed into law by the highest
officer of the co-equal executive department. As we said in Estrada v. Sandiganbayan, 117 courts
must assume that the legislature is ever conscious of the borders and edges of its plenary powers,
and passed laws with full knowledge of the facts and for the purpose of promoting what is right
and advancing the welfare of the majority.

We reiterate here Justice Puno's observation that "the history of the women's movement against
domestic violence shows that one of its most difficult struggles was the fight against the violence
of law itself. If we keep that in mind, law will not again be a hindrance to the struggle of women
for equality but will be its fulfillment."118 Accordingly, the constitutionality of R.A. 9262 is, as it
should be, sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

 Associate Justice Associate Justice
See separate concurring opinion:
See: Concurring Opinion
TERESITA J. LEONARDO-DE
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice
On official leave
LUCAS P. BERSAMIN
DIOSDADO M. PERALTA*
Associate Justice
Associate Justice
See Separate Concurring Opinion
MARIANO C. DEL CASTILLO
ROBERTO A. ABAD
Associate Justice
Associate Justice
MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ
Associate Justice Associate Justice
JOSE CATRAL MENDOZA BIENVENIDO L. REYES
Associate Justice Associate Justice

See separate concurring opinion

MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

MARIA LOURDES P. A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 189698               February 22, 2010
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.
RESOLUTION
PUNO, C.J.:
Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission
on Elections’ (COMELEC) motion for reconsideration, and the movants-intervenors’ motions
for reconsideration-in-intervention, of this Court’s December 1, 2009 Decision (Decision).1
The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P.
Quinto and Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the
third paragraph of Section 13 of Republic Act No. 9369,2 Section 66 of the Omnibus Election
Code3 and Section 4(a) of COMELEC Resolution No. 8678,4 mainly on the ground that they
violate the equal protection clause of the Constitution and suffer from overbreadth. The assailed
Decision thus paved the way for public appointive officials to continue discharging the powers,
prerogatives and functions of their office notwithstanding their entry into the political arena.
In support of their respective motions for reconsideration, respondent COMELEC and movants-
intervenors submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription
against the participation of public appointive officials and members of the military in partisan
political activity;
(2) The assailed provisions do not violate the equal protection clause when they accord
differential treatment to elective and appointive officials, because such differential treatment
rests on material and substantial distinctions and is germane to the purposes of the law;
(3) The assailed provisions do not suffer from the infirmity of overbreadth; and
(4) There is a compelling need to reverse the assailed Decision, as public safety and interest
demand such reversal.
We find the foregoing arguments meritorious.
I.
Procedural Issues
First, we shall resolve the procedural issues on the timeliness of the COMELEC’s motion for
reconsideration which was filed on December 15, 2009, as well as the propriety of the motions
for reconsideration-in-intervention which were filed after the Court had rendered its December 1,
2009 Decision.
i. Timeliness of COMELEC’s Motion for Reconsideration
Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,5 in relation to Section 1, Rule 52 of
the same rules,6 COMELEC had a period of fifteen days from receipt of notice of the assailed
Decision within which to move for its reconsideration. COMELEC received notice of the
assailed Decision on December 2, 2009, hence, had until December 17, 2009 to file a Motion for
Reconsideration.
The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14,
2009. The corresponding Affidavit of Service (in substitution of the one originally submitted on
December 14, 2009) was subsequently filed on December 17, 2009 – still within the
reglementary period.
ii. Propriety of the Motions for Reconsideration-in-Intervention
Section 1, Rule 19 of the Rules of Court provides:
A person who has legal interest in the matter in litigation or in the success of either of the parties,
or an interest against both, or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof may, with leave of
court, be allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the original parties,
and whether or not the intervenor’s rights may be fully protected in a separate proceeding.
Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be
entertained when the following requisites are satisfied: (1) the would-be intervenor shows that he
has a substantial right or interest in the case; and (2) such right or interest cannot be adequately
pursued and protected in another proceeding.7
Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a
motion for intervention may be filed, viz.:
SECTION 2. Time to intervene.– The motion for intervention may be filed at any time before
rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached
to the motion and served on the original parties. (italics supplied)
This rule, however, is not inflexible. Interventions have been allowed even beyond the period
prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also
been granted to afford indispensable parties, who have not been impleaded, the right to be heard
even after a decision has been rendered by the trial court,8 when the petition for review of the
judgment has already been submitted for decision before the Supreme Court,9 and even where
the assailed order has already become final and executory.10 In Lim v. Pacquing,11 the motion
for intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave
injustice and injury and to settle once and for all the substantive issues raised by the parties.
In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion
of the court12 after consideration of the appropriate circumstances.13 We stress again that Rule 19
of the Rules of Court is a rule of procedure whose object is to make the powers of the court fully
and completely available for justice.14 Its purpose is not to hinder or delay, but to facilitate and
promote the administration of justice.15
We rule that, with the exception of the IBP – Cebu City Chapter, all the movants-intervenors
may properly intervene in the case at bar.
First, the movants-intervenors have each sufficiently established a substantial right or interest in
the case.
As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1,
2009 Decision, which nullifies a long established law; as a voter, he has a right to intervene in a
matter that involves the electoral process; and as a public officer, he has a personal interest in
maintaining the trust and confidence of the public in its system of government.
On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the
May 2010 elections running against appointive officials who, in view of the December 1, 2009
Decision, have not yet resigned from their posts and are not likely to resign from their posts.
They stand to be directly injured by the assailed Decision, unless it is reversed.
Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and
protected in another proceeding. Clearly, their rights will be foreclosed if this Court’s Decision
attains finality and forms part of the laws of the land.
With regard to the IBP – Cebu City Chapter, it anchors its standing on the assertion that "this
case involves the constitutionality of elections laws for this coming 2010 National Elections,"
and that "there is a need for it to be allowed to intervene xxx so that the voice of its members in
the legal profession would also be heard before this Highest Tribunal as it resolves issues of
transcendental importance."16
Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed
to present a specific and substantial interest sufficient to clothe it with standing to intervene in
the case at bar. Its invoked interest is, in character, too indistinguishable to justify its
intervention.
We now turn to the substantive issues.
II.
Substantive Issues
The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the
third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus
Election Code, on the following grounds:
(1) They violate the equal protection clause of the Constitution because of the differential
treatment of persons holding appointive offices and those holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding
appointive posts: (a) without distinction as to whether or not they occupy high/influential
positions in the government, and (b) they limit these civil servants’ activity regardless of whether
they be partisan or nonpartisan in character, or whether they be in the national, municipal or
barangay level; and
(3) Congress has not shown a compelling state interest to restrict the fundamental right of these
public appointive officials.
We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678,
Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of
Section 13 of RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009
Decision.
III.
Section 4(a) of COMELEC Resolution 8678 Compliant with Law
Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law
and jurisprudence on the matter, viz.:
Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of
the Omnibus Election Code, any person holding a public appointive office or position, including
active members of the Armed Forces of the Philippines, and officers and employees in
government-owned or -controlled corporations, shall be considered ipso facto resigned from his
office upon the filing of his certificate of candidacy.
Incumbent Elected Official. – Upon the other hand, pursuant to Section 14 of RA 9006 or the
Fair Election Act,17 which repealed Section 67 of the Omnibus Election Code18 and rendered
ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only
upon the start of the campaign period corresponding to the positions for which they are
running,19 an elected official is not deemed to have resigned from his office upon the filing of his
certificate of candidacy for the same or any other elected office or position. In fine, an elected
official may run for another position without forfeiting his seat.
These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution,
which prohibits civil service officers and employees from engaging in any electioneering or
partisan political campaign.
The intention to impose a strict limitation on the participation of civil service officers and
employees in partisan political campaigns is unmistakable. The exchange between
Commissioner Quesada and Commissioner Foz during the deliberations of the Constitutional
Commission is instructive:
MS. QUESADA.
xxxx
Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote:
"No officer or employee in the civil service shall engage, directly or indirectly, in any partisan
political activity." This is almost the same provision as in the 1973 Constitution. However, we in
the government service have actually experienced how this provision has been violated by the
direct or indirect partisan political activities of many government officials.
So, is the Committee willing to include certain clauses that would make this provision more
strict, and which would deter its violation?
MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the
matter are more than exhaustive enough to really prevent officers and employees in the public
service from engaging in any form of partisan political activity. But the problem really lies in
implementation because, if the head of a ministry, and even the superior officers of offices and
agencies of government will themselves violate the constitutional injunction against partisan
political activity, then no string of words that we may add to what is now here in this draft will
really implement the constitutional intent against partisan political activity. x x x20 (italics
supplied)
To emphasize its importance, this constitutional ban on civil service officers and employees is
presently reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and
Section 55, Chapter 8 – both of Subtitle A, Title I, Book V of the Administrative Code of 1987 –
respectively provide in relevant part:
Section 44. Discipline: General Provisions:
xxxx
(b) The following shall be grounds for disciplinary action:
xxxx
(26) Engaging directly or indirectly in partisan political activities by one holding a non-political
office.
xxxx
Section 55. Political Activity. — No officer or employee in the Civil Service including members
of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take
part in any election except to vote nor shall he use his official authority or influence to coerce the
political activity of any other person or body. Nothing herein provided shall be understood to
prevent any officer or employee from expressing his views on current political problems or
issues, or from mentioning the names of his candidates for public office whom he supports:
Provided, That public officers and employees holding political offices may take part in political
and electoral activities but it shall be unlawful for them to solicit contributions from their
subordinates or subject them to any of the acts involving subordinates prohibited in the Election
Code.
Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes
intervention by civil service officers and employees in partisan political activities an election
offense, viz.:
SECTION 261. Prohibited Acts. — The following shall be guilty of an election offense:
xxxx
(i) Intervention of public officers and employees. — Any officer or employee in the civil service,
except those holding political offices; any officer, employee, or member of the Armed Forces of
the Philippines, or any police force, special forces, home defense forces, barangay self-defense
units and all other para-military units that now exist or which may hereafter be organized who,
directly or indirectly, intervenes in any election campaign or engages in any partisan political
activity, except to vote or to preserve public order, if he is a peace officer.
The intent of both Congress and the framers of our Constitution to limit the participation of civil
service officers and employees in partisan political activities is too plain to be mistaken.
But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only
to civil servants holding apolitical offices. Stated differently, the constitutional ban does not
cover elected officials, notwithstanding the fact that "[t]he civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the Government, including government-owned or
controlled corporations with original charters."21 This is because elected public officials, by the
very nature of their office, engage in partisan political activities almost all year round, even
outside of the campaign period.22 Political partisanship is the inevitable essence of a political
office, elective positions included.23
The prohibition notwithstanding, civil service officers and employees are allowed to vote, as
well as express their views on political issues, or mention the names of certain candidates for
public office whom they support. This is crystal clear from the deliberations of the Constitutional
Commission, viz.:
MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1,
subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the
phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu
thereof substitute the word CAMPAIGN.
May I be allowed to explain my proposed amendment?
THE PRESIDING OFFICER (Mr. Treñas): Commissioner Aquino may proceed.
MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote"
which was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not
intended as a guarantee to the right to vote but as a qualification of the general prohibition
against taking part in elections.
Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this
prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is
not an unconditional right. In other words, the Legislature can always pass a statute which can
withhold from any class the right to vote in an election, if public interest so required. I would
only like to reinstate the qualification by specifying the prohibited acts so that those who may
want to vote but who are likewise prohibited from participating in partisan political campaigns or
electioneering may vote.
MR. FOZ: There is really no quarrel over this point, but please understand that there was no
intention on the part of the Committee to disenfranchise any government official or employee.
The elimination of the last clause of this provision was precisely intended to protect the members
of the civil service in the sense that they are not being deprived of the freedom of expression in a
political contest. The last phrase or clause might have given the impression that a government
employee or worker has no right whatsoever in an election campaign except to vote, which is not
the case. They are still free to express their views although the intention is not really to allow
them to take part actively in a political campaign.24
IV.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election
Code Do Not Violate the Equal Protection Clause
We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code,
and the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the
equal protection clause of the Constitution.
i. Fariñas, et al. v. Executive Secretary, et al. is Controlling
In truth, this Court has already ruled squarely on whether these deemed-resigned provisions
challenged in the case at bar violate the equal protection clause of the Constitution in Fariñas, et
al. v. Executive Secretary, et al.25
In Fariñas, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66
and 67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly
discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-
resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials
are no longer considered ipso facto resigned from their respective offices upon their filing of
certificates of candidacy. In contrast, since Section 66 was not repealed, the limitation on
appointive officials continues to be operative – they are deemed resigned when they file their
certificates of candidacy.
The petitioners in Fariñas thus brought an equal protection challenge against Section 14, with the
end in view of having the deemed-resigned provisions "apply equally" to both elected and
appointive officials. We held, however, that the legal dichotomy created by the Legislature is a
reasonable classification, as there are material and significant distinctions between the two
classes of officials. Consequently, the contention that Section 14 of the Fair Election Act, in
relation to Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection
clause of the Constitution, failed muster. We ruled:
The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code
pertaining to elective officials gives undue benefit to such officials as against the appointive ones
and violates the equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to
reasonable classification. If the groupings are characterized by substantial distinctions that make
real differences, one class may be treated and regulated differently from the other. The Court has
explained the nature of the equal protection guarantee in this manner:
The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit
legislation which is limited either in the object to which it is directed or by territory within which
it is to operate. It does not demand absolute equality among residents; it merely requires that all
persons shall be treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed by legislation
which applies only to those persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exist for making a distinction between those
who fall within such class and those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials. The
former occupy their office by virtue of the mandate of the electorate. They are elected to an
office for a definite term and may be removed therefrom only upon stringent conditions. On the
other hand, appointive officials hold their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their office in a permanent capacity and are
entitled to security of tenure while others serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55, Chapter
8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987
(Executive Order No. 292), appointive officials, as officers and employees in the civil service,
are strictly prohibited from engaging in any partisan political activity or take (sic) part in any
election except to vote. Under the same provision, elective officials, or officers or employees
holding political offices, are obviously expressly allowed to take part in political and electoral
activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators
deemed it proper to treat these two classes of officials differently with respect to the effect on
their tenure in the office of the filing of the certificates of candidacy for any position other than
those occupied by them. Again, it is not within the power of the Court to pass upon or look into
the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-à-vis
appointive officials, is anchored upon material and significant distinctions and all the persons
belonging under the same classification are similarly treated, the equal protection clause of the
Constitution is, thus, not infringed.26
The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed
Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta
movere. This doctrine, which is really "adherence to precedents," mandates that once a case has
been decided one way, then another case involving exactly the same point at issue should be
decided in the same manner.27 This doctrine is one of policy grounded on the necessity for
securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo
stated in his treatise The Nature of the Judicial Process:
It will not do to decide the same question one way between one set of litigants and the opposite
way between another. "If a group of cases involves the same point, the parties expect the same
decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case
was decided against me yesterday when I was a defendant, I shall look for the same judgment
today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my
breast; it would be an infringement, material and moral, of my rights." Adherence to precedent
must then be the rule rather than the exception if litigants are to have faith in the even-handed
administration of justice in the courts.28
Our Fariñas ruling on the equal protection implications of the deemed-resigned provisions cannot
be minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within
the issues presented by the case cannot be considered as obiter dictum.29 This rule applies to all
pertinent questions that are presented and resolved in the regular course of the consideration of
the case and lead up to the final conclusion, and to any statement as to the matter on which the
decision is predicated.30 For that reason, a point expressly decided does not lose its value as a
precedent because the disposition of the case is, or might have been, made on some other ground;
or even though, by reason of other points in the case, the result reached might have been the
same if the court had held, on the particular point, otherwise than it did.31 As we held in
Villanueva, Jr. v. Court of Appeals, et al.:32
… A decision which the case could have turned on is not regarded as obiter dictum merely
because, owing to the disposal of the contention, it was necessary to consider another question,
nor can an additional reason in a decision, brought forward after the case has been disposed of on
one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one
of which is sufficient to determine the ultimate issue, but the court actually decides all such
points, the case as an authoritative precedent as to every point decided, and none of such points
can be regarded as having the status of a dictum, and one point should not be denied authority
merely because another point was more dwelt on and more fully argued and considered, nor does
a decision on one proposition make statements of the court regarding other propositions
dicta.33 (italics supplied)
ii. Classification Germane to the Purposes of the Law
The Fariñas ruling on the equal protection challenge stands on solid ground even if reexamined.
To start with, the equal protection clause does not require the universal application of the laws to
all persons or things without distinction.34 What it simply requires is equality among equals as
determined according to a valid classification.35 The test developed by jurisprudence here and
yonder is that of reasonableness,36 which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.37
Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the
first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion
that the differential treatment of appointive officials vis-à-vis elected officials is not germane to
the purpose of the law, because "whether one holds an appointive office or an elective one, the
evils sought to be prevented by the measure remain," viz.:
… For example, the Executive Secretary, or any Member of the Cabinet for that matter, could
wield the same influence as the Vice-President who at the same time is appointed to a Cabinet
post (in the recent past, elected Vice-Presidents were appointed to take charge of national
housing, social welfare development, interior and local government, and foreign affairs). With
the fact that they both head executive offices, there is no valid justification to treat them
differently when both file their [Certificates of Candidacy] for the elections. Under the present
state of our law, the Vice-President, in the example, running this time, let us say, for President,
retains his position during the entire election period and can still use the resources of his office to
support his campaign.38
Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an
injustice, the Legislature need not address every manifestation of the evil at once; it may proceed
"one step at a time."39 In addressing a societal concern, it must invariably draw lines and make
choices, thereby creating some inequity as to those included or excluded.40 Nevertheless, as long
as "the bounds of reasonable choice" are not exceeded, the courts must defer to the legislative
judgment.41 We may not strike down a law merely because the legislative aim would have been
more fully achieved by expanding the class.42 Stated differently, the fact that a legislative
classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or
invidious.43 There is no constitutional requirement that regulation must reach each and every
class to which it might be applied;44 that the Legislature must be held rigidly to the choice of
regulating all or none.
Thus, any person who poses an equal protection challenge must convincingly show that the law
creates a classification that is "palpably arbitrary or capricious."45 He must refute all possible
rational bases for the differing treatment, whether or not the Legislature cited those bases as
reasons for the enactment,46 such that the constitutionality of the law must be sustained even if
the reasonableness of the classification is "fairly debatable."47 In the case at bar, the petitioners
failed – and in fact did not even attempt – to discharge this heavy burden. Our assailed Decision
was likewise silent as a sphinx on this point even while we submitted the following thesis:
... [I]t is not sufficient grounds for invalidation that we may find that the statute’s distinction is
unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather,
we must find that there is no reasonably rational reason for the differing treatment.48
In the instant case, is there a rational justification for excluding elected officials from the
operation of the deemed resigned provisions? I submit that there is.
An election is the embodiment of the popular will, perhaps the purest expression of the sovereign
power of the people.49 It involves the choice or selection of candidates to public office by popular
vote.50 Considering that elected officials are put in office by their constituents for a definite term,
it may justifiably be said that they were excluded from the ambit of the deemed resigned
provisions in utmost respect for the mandate of the sovereign will. In other words, complete
deference is accorded to the will of the electorate that they be served by such officials until the
end of the term for which they were elected. In contrast, there is no such expectation insofar as
appointed officials are concerned.
The dichotomized treatment of appointive and elective officials is therefore germane to the
purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and
discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial
scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest
of deferring to the sovereign will.51 (emphasis in the original)
In fine, the assailed Decision would have us "equalize the playing field" by invalidating
provisions of law that seek to restrain the evils from running riot. Under the pretext of equal
protection, it would favor a situation in which the evils are unconfined and vagrant, existing at
the behest of both appointive and elected officials, over another in which a significant portion
thereof is contained. The absurdity of that position is self-evident, to say the least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected
officials (vis-à-vis appointive officials) have greater political clout over the electorate, is indeed a
matter worth exploring – but not by this Court. Suffice it to say that the remedy lies with the
Legislature. It is the Legislature that is given the authority, under our constitutional system, to
balance competing interests and thereafter make policy choices responsive to the exigencies of
the times. It is certainly within the Legislature’s power to make the deemed-resigned provisions
applicable to elected officials, should it later decide that the evils sought to be prevented are of
such frequency and magnitude as to tilt the balance in favor of expanding the class. This Court
cannot and should not arrogate unto itself the power to ascertain and impose on the people the
best state of affairs from a public policy standpoint.
iii. Mancuso v. Taft Has Been Overruled
Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision
adverted to, and extensively cited, Mancuso v. Taft.52 This was a decision of the First Circuit of
the United States Court of Appeals promulgated in March 1973, which struck down as
unconstitutional a similar statutory provision. Pathetically, our assailed Decision, relying on
Mancuso, claimed:
(1) The right to run for public office is "inextricably linked" with two fundamental freedoms –
freedom of expression and association;
(2) Any legislative classification that significantly burdens this fundamental right must be
subjected to strict equal protection review; and
(3) While the state has a compelling interest in maintaining the honesty and impartiality of its
public work force, the deemed-resigned provisions pursue their objective in a far too heavy-
handed manner as to render them unconstitutional.
It then concluded with the exhortation that since "the Americans, from whom we copied the
provision in question, had already stricken down a similar measure for being unconstitutional[,]
it is high-time that we, too, should follow suit."
Our assailed Decision’s reliance on Mancuso is completely misplaced. We cannot blink away the
fact that the United States Supreme Court effectively overruled Mancuso three months after its
promulgation by the United States Court of Appeals. In United States Civil Service Commission,
et al. v. National Association of Letter Carriers AFL-CIO, et al.53 and Broadrick, et al. v. State of
Oklahoma, et al.,54 the United States Supreme Court was faced with the issue of whether
statutory provisions prohibiting federal55 and state56 employees from taking an active part in
political management or in political campaigns were unconstitutional as to warrant facial
invalidation. Violation of these provisions results in dismissal from employment and possible
criminal sanctions.
The Court declared these provisions compliant with the equal protection clause. It held that (i) in
regulating the speech of its employees, the state as employer has interests that differ significantly
from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must
therefore balance the legitimate interest of employee free expression against the interests of the
employer in promoting efficiency of public services; (iii) if the employees’ expression interferes
with the maintenance of efficient and regularly functioning services, the limitation on speech is
not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in
ascertaining which positions are to be covered by any statutory restrictions.57 Therefore, insofar
as government employees are concerned, the correct standard of review is an interest-balancing
approach, a means-end scrutiny that examines the closeness of fit between the governmental
interests and the prohibitions in question.58
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the country appears to have been that
partisan political activities by federal employees must be limited if the Government is to operate
effectively and fairly, elections are to play their proper part in representative government, and
employees themselves are to be sufficiently free from improper influences. The restrictions so far
imposed on federal employees are not aimed at particular parties, groups, or points of view, but
apply equally to all partisan activities of the type described. They discriminate against no racial,
ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to
interfere with or influence anyone's vote at the polls.
But, as the Court held in Pickering v. Board of Education,59 the government has an interest in
regulating the conduct and ‘the speech of its employees that differ(s) significantly from those it
possesses in connection with regulation of the speech of the citizenry in general. The problem in
any case is to arrive at a balance between the interests of the (employee), as a citizen, in
commenting upon matters of public concern and the interest of the (government), as an
employer, in promoting the efficiency of the public services it performs through its employees.’
Although Congress is free to strike a different balance than it has, if it so chooses, we think the
balance it has so far struck is sustainable by the obviously important interests sought to be served
by the limitations on partisan political activities now contained in the Hatch Act.
It seems fundamental in the first place that employees in the Executive Branch of the
Government, or those working for any of its agencies, should administer the law in accordance
with the will of Congress, rather than in accordance with their own or the will of a political party.
They are expected to enforce the law and execute the programs of the Government without bias
or favoritism for or against any political party or group or the members thereof. A major thesis of
the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it
is essential that federal employees, for example, not take formal positions in political parties, not
undertake to play substantial roles in partisan political campaigns, and not run for office on
partisan political tickets. Forbidding activities like these will reduce the hazards to fair and
effective government.
There is another consideration in this judgment: it is not only important that the Government and
its employees in fact avoid practicing political justice, but it is also critical that they appear to the
public to be avoiding it, if confidence in the system of representative Government is not to be
eroded to a disastrous extent.
Another major concern of the restriction against partisan activities by federal employees was
perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction
that the rapidly expanding Government work force should not be employed to build a powerful,
invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938
campaigns convinced Congress that these dangers were sufficiently real that substantial barriers
should be raised against the party in power-or the party out of power, for that matter-using the
thousands or hundreds of thousands of federal employees, paid for at public expense, to man its
political structure and political campaigns.
A related concern, and this remains as important as any other, was to further serve the goal that
employment and advancement in the Government service not depend on political performance,
and at the same time to make sure that Government employees would be free from pressure and
from express or tacit invitation to vote in a certain way or perform political chores in order to
curry favor with their superiors rather than to act out their own beliefs. It may be urged that
prohibitions against coercion are sufficient protection; but for many years the joint judgment of
the Executive and Congress has been that to protect the rights of federal employees with respect
to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to
attempt to influence or coerce another. For example, at the hearings in 1972 on proposed
legislation for liberalizing the prohibition against political activity, the Chairman of the Civil
Service Commission stated that ‘the prohibitions against active participation in partisan political
management and partisan political campaigns constitute the most significant safeguards against
coercion . . ..’ Perhaps Congress at some time will come to a different view of the realities of
political life and Government service; but that is its current view of the matter, and we are not
now in any position to dispute it. Nor, in our view, does the Constitution forbid it.
Neither the right to associate nor the right to participate in political activities is absolute in any
event.60 x x x
xxxx
As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the
will of Congress, so as to comport with constitutional limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision is constitutionally
permissible, viz.:
Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan
political conduct of state employees. Appellants freely concede that such restrictions serve valid
and important state interests, particularly with respect to attracting greater numbers of qualified
people by insuring their job security, free from the vicissitudes of the elective process, and by
protecting them from ‘political extortion.’ Rather, appellants maintain that however permissible,
even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its
prohibitions too broad in their sweep, failing to distinguish between conduct that may be
proscribed and conduct that must be permitted. For these and other reasons, appellants assert that
the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or
anyone else.
We have held today that the Hatch Act is not impermissibly vague.61 We have little doubt that s
818 is similarly not so vague that ‘men of common intelligence must necessarily guess at its
meaning.’62 Whatever other problems there are with s 818, it is all but frivolous to suggest that
the section fails to give adequate warning of what activities it proscribes or fails to set out
‘explicit standards' for those who must apply it. In the plainest language, it prohibits any state
classified employee from being ‘an officer or member’ of a ‘partisan political club’ or a
candidate for ‘any paid public office.’ It forbids solicitation of contributions ‘for any political
organization, candidacy or other political purpose’ and taking part ‘in the management or affairs
of any political party or in any political campaign.’ Words inevitably contain germs of
uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in
s 818 as ‘partisan,’ or ‘take part in,’ or ‘affairs of’ political parties. But what was said in Letter
Carriers, is applicable here: ‘there are limitations in the English language with respect to being
both specific and manageably brief, and it seems to us that although the prohibitions may not
satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person
exercising ordinary common sense can sufficiently understand and comply with, without
sacrifice to the public interest.' x x x
xxxx
[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected,
as well as unprotected conduct, and must therefore be struck down on its face and held to be
incapable of any constitutional application. We do not believe that the overbreadth doctrine may
appropriately be invoked in this manner here.
xxxx
The consequence of our departure from traditional rules of standing in the First Amendment area
is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a
limiting construction or partial invalidation so narrows it as to remove the seeming threat or
deterrence to constitutionally protected expression. Application of the overbreadth doctrine in
this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and
only as a last resort. x x x
x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication
is an exception to our traditional rules of practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from
‘pure speech’ toward conduct and that conduct-even if expressive-falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive
controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly
worded, may deter protected speech to some unknown extent, there comes a point where that
effect-at best a prediction-cannot, with confidence, justify invalidating a statute on its face and so
prohibiting a State from enforcing the statute against conduct that is admittedly within its power
to proscribe. To put the matter another way, particularly where conduct and not merely speech is
involved, we believe that the overbreadth of a statute must not only be real, but substantial as
well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not
substantially overbroad and that whatever overbreadth may exist should be cured through case-
by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by
its terms, at political expression which if engaged in by private persons would plainly be
protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial
statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political
activity in an even-handed and neutral manner. As indicted, such statutes have in the past been
subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a
substantial spectrum of conduct that is as manifestly subject to state regulation as the public
peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and
has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers,
there is no question that s 818 is valid at least insofar as it forbids classified employees from:
soliciting contributions for partisan candidates, political parties, or other partisan political
purposes; becoming members of national, state, or local committees of political parties, or
officers or committee members in partisan political clubs, or candidates for any paid public
office; taking part in the management or affairs of any political party's partisan political
campaign; serving as delegates or alternates to caucuses or conventions of political parties;
addressing or taking an active part in partisan political rallies or meetings; soliciting votes or
assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating
in the distribution of partisan campaign literature; initiating or circulating partisan nominating
petitions; or riding in caravans for any political party or partisan political candidate.
x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of
some other improper applications. But, as presently construed, we do not believe that s 818 must
be discarded in toto because some persons’ arguably protected conduct may or may not be
caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore,
unconstitutional on its face. (italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the
principles enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these
cases cannot be interpreted to mean a reversal of Mancuso, since they "pertain to different types
of laws and were decided based on a different set of facts," viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Act’s prohibition against "active participation in political
management or political campaigns." The plaintiffs desired to campaign for candidates for public
office, to encourage and get federal employees to run for state and local offices, to participate as
delegates in party conventions, and to hold office in a political club.
In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in
the (sic) Oklahoma’s Merit System of Personnel Administration Act restricting the political
activities of the State’s classified civil servants, in much the same manner as the Hatch Act
proscribed partisan political activities of federal employees. Prior to the commencement of the
action, the appellants actively participated in the 1970 reelection campaign of their superior, and
were administratively charged for asking other Corporation Commission employees to do
campaign work or to give referrals to persons who might help in the campaign, for soliciting
money for the campaign, and for receiving and distributing campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth
Mancuso, a full time police officer and classified civil service employee of the City of Cranston,
filed as a candidate for nomination as representative to the Rhode Island General Assembly. The
Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City
Home Rule Charter.
Clearly, as the above-cited US cases pertain to different types of laws and were decided based on
a different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of
Mancuso. x x x (italics in the original)
We hold, however, that his position is belied by a plain reading of these cases. Contrary to his
claim, Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-
run laws, viz.:
(1) Mancuso involved a civil service employee who filed as a candidate for nomination as
representative to the Rhode Island General Assembly. He assailed the constitutionality of
§14.09(c) of the City Home Rule Charter, which prohibits "continuing in the classified service of
the city after becoming a candidate for nomination or election to any public office."
(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was
enforcing, or threatening to enforce, the Hatch Act’s prohibition against "active participation in
political management or political campaigns"63 with respect to certain defined activities in which
they desired to engage. The plaintiffs relevant to this discussion are:
(a) The National Association of Letter Carriers, which alleged that its members were desirous of,
among others, running in local elections for offices such as school board member, city council
member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of
Borough Councilman in his local community for fear that his participation in a partisan election
would endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971
partisan election for the mayor of West Lafayette, Indiana, and that he would do so except for
fear of losing his job by reason of violation of the Hatch Act.
The Hatch Act defines "active participation in political management or political campaigns" by
cross-referring to the rules made by the Civil Service Commission. The rule pertinent to our
inquiry states:
30. Candidacy for local office: Candidacy for a nomination or for election to any National, State,
county, or municipal office is not permissible. The prohibition against political activity extends
not merely to formal announcement of candidacy but also to the preliminaries leading to such
announcement and to canvassing or soliciting support or doing or permitting to be done any act
in furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an
employee acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence
constitutes an infraction of the prohibitions against political activity. (italics supplied)
Section 9(b) requires the immediate removal of violators and forbids the use of appropriated
funds thereafter to pay compensation to these persons.64
(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a
declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahoma’s Merit
System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this
discussion, states that "[n]o employee in the classified service shall be … a candidate for
nomination or election to any paid public office…" Violation of Section 818 results in dismissal
from employment, possible criminal sanctions and limited state employment ineligibility.
Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled
Mancuso. By no stretch of the imagination could Mancuso still be held operative, as Letter
Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided
by a superior court, the United States Supreme Court. It was thus not surprising for the First
Circuit Court of Appeals – the same court that decided Mancuso – to hold categorically and
emphatically in Magill v. Lynch65 that Mancuso is no longer good law. As we priorly explained:
Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket’s
"Little Hatch Act" prohibits city employees from engaging in a broad range of political activities.
Becoming a candidate for any city office is specifically proscribed,66 the violation being
punished by removal from office or immediate dismissal. The firemen brought an action against
the city officials on the ground that that the provision of the city charter was unconstitutional.
However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that
Mancuso had since lost considerable vitality. It observed that the view that political candidacy
was a fundamental interest which could be infringed upon only if less restrictive alternatives
were not available, was a position which was no longer viable, since the Supreme Court (finding
that the government’s interest in regulating both the conduct and speech of its employees
differed significantly from its interest in regulating those of the citizenry in general) had given
little weight to the argument that prohibitions against the coercion of government employees
were a less drastic means to the same end, deferring to the judgment of Congress, and applying a
"balancing" test to determine whether limits on political activity by public employees
substantially served government interests which were "important" enough to outweigh the
employees’ First Amendment rights.67
It must be noted that the Court of Appeals ruled in this manner even though the election in
Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the
circumstances of that case, that politically active bureaucrats might use their official power to
help political friends and hurt political foes. Ruled the court:
The question before us is whether Pawtucket's charter provision, which bars a city employee's
candidacy in even a nonpartisan city election, is constitutional. The issue compels us to
extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter
Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan
political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the
constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's
"Little Hatch Act" against constitutional attack, limiting its holding to Oklahoma's construction
that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that
proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers
and Broadrick compel new analysis.
xxxx
What we are obligated to do in this case, as the district court recognized, is to apply the Court’s
interest balancing approach to the kind of nonpartisan election revealed in this record. We
believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than
remains after Letter Carriers. We have particular reference to our view that political candidacy
was a fundamental interest which could be trenched upon only if less restrictive alternatives were
not available. While this approach may still be viable for citizens who are not government
employees, the Court in Letter Carriers recognized that the government's interest in regulating
both the conduct and speech of its employees differs significantly from its interest in regulating
those of the citizenry in general. Not only was United Public Workers v. Mitchell
"unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions
against the coercion of government employees were a less drastic means to the same end,
deferring to the judgment of the Congress. We cannot be more precise than the Third Circuit in
characterizing the Court's approach as "some sort of 'balancing' process".68 It appears that the
government may place limits on campaigning by public employees if the limits substantially
serve government interests that are "important" enough to outweigh the employees' First
Amendment rights. x x x (italics supplied)
Upholding thus the constitutionality of the law in question, the Magill court detailed the major
governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision
as follows:
In Letter Carriers[,] the first interest identified by the Court was that of an efficient government,
faithful to the Congress rather than to party. The district court discounted this interest, reasoning
that candidates in a local election would not likely be committed to a state or national platform.
This observation undoubtedly has substance insofar as allegiance to broad policy positions is
concerned. But a different kind of possible political intrusion into efficient administration could
be thought to threaten municipal government: not into broad policy decisions, but into the
particulars of administration favoritism in minute decisions affecting welfare, tax assessments,
municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court
in Letter Carriers identified a second governmental interest in the avoidance of the appearance of
"political justice" as to policy, so there is an equivalent interest in avoiding the appearance of
political preferment in privileges, concessions, and benefits. The appearance (or reality) of
favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character
of the formal election process. Where, as here, party support is a key to successful campaigning,
and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats
would use their official power to help political friends and hurt political foes. This is not to say
that the city's interest in visibly fair and effective administration necessarily justifies a blanket
prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the
danger of favoritism is less, for neither friend nor foe is as easily identified.
A second major governmental interest identified in Letter Carriers was avoiding the danger of a
powerful political machine. The Court had in mind the large and growing federal bureaucracy
and its partisan potential. The district court felt this was only a minor threat since parties had no
control over nominations. But in fact candidates sought party endorsements, and party
endorsements proved to be highly effective both in determining who would emerge from the
primary election and who would be elected in the final election. Under the prevailing customs,
known party affiliation and support were highly significant factors in Pawtucket elections. The
charter's authors might reasonably have feared that a politically active public work force would
give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of
power. In municipal elections especially, the small size of the electorate and the limited powers
of local government may inhibit the growth of interest groups powerful enough to outbalance the
weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake,
isolated government employees may seek to influence voters or their co-workers improperly; but
a more real danger is that a central party structure will mass the scattered powers of government
workers behind a single party platform or slate. Occasional misuse of the public trust to pursue
private political ends is tolerable, especially because the political views of individual employees
may balance each other out. But party discipline eliminates this diversity and tends to make
abuse systematic. Instead of a handful of employees pressured into advancing their immediate
superior's political ambitions, the entire government work force may be expected to turn out for
many candidates in every election. In Pawtucket, where parties are a continuing presence in
political campaigns, a carefully orchestrated use of city employees in support of the incumbent
party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's
nominating procedure or the lack of party labels on its ballots.
The third area of proper governmental interest in Letter Carriers was ensuring that employees
achieve advancement on their merits and that they be free from both coercion and the prospect of
favor from political activity. The district court did not address this factor, but looked only to the
possibility of a civil servant using his position to influence voters, and held this to be no more of
a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of
employees by superiors remains as strong a factor in municipal elections as it was in Letter
Carriers. Once again, it is the systematic and coordinated exploitation of public servants for
political ends that a legislature is most likely to see as the primary threat of employees' rights.
Political oppression of public employees will be rare in an entirely nonpartisan system. Some
superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan
context, but without party officials looking over their shoulders most supervisors will prefer to
let employees go their own ways.
In short, the government may constitutionally restrict its employees' participation in nominally
nonpartisan elections if political parties play a large role in the campaigns. In the absence of
substantial party involvement, on the other hand, the interests identified by the Letter Carriers
Court lose much of their force. While the employees' First Amendment rights would normally
outbalance these diminished interests, we do not suggest that they would always do so. Even
when parties are absent, many employee campaigns might be thought to endanger at least one
strong public interest, an interest that looms larger in the context of municipal elections than it
does in the national elections considered in Letter Carriers. The city could reasonably fear the
prospect of a subordinate running directly against his superior or running for a position that
confers great power over his superior. An employee of a federal agency who seeks a
Congressional seat poses less of a direct challenge to the command and discipline of his agency
than a fireman or policeman who runs for mayor or city council. The possibilities of internal
discussion, cliques, and political bargaining, should an employee gather substantial political
support, are considerable. (citations omitted)
The court, however, remanded the case to the district court for further proceedings in respect of
the petitioners’ overbreadth charge. Noting that invalidating a statute for being overbroad is "not
to be taken lightly, much less to be taken in the dark," the court held:
The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a
closely analogous case. Under Broadrick, when one who challenges a law has engaged in
constitutionally unprotected conduct (rather than unprotected speech) and when the challenged
law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major
uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define
"substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in
that case had solicited support for a candidate, and they were subject to discipline under a law
proscribing a wide range of activities, including soliciting contributions for political candidates
and becoming a candidate. The Court found that this combination required a substantial
overbreadth approach. The facts of this case are so similar that we may reach the same result
without worrying unduly about the sometimes opaque distinction between speech and conduct.
The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in
a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in
nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently
requires, inter alia, a rough balancing of the number of valid applications compared to the
number of potentially invalid applications. Some sensitivity to reality is needed; an invalid
application that is far-fetched does not deserve as much weight as one that is probable. The
question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine
valid applications makes a law substantially overbroad. Still, an overbreadth challenger has a
duty to provide the court with some idea of the number of potentially invalid applications the
statute permits. Often, simply reading the statute in the light of common experience or litigated
cases will suggest a number of probable invalid applications. But this case is different. Whether
the statute is overbroad depends in large part on the number of elections that are insulated from
party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city,
state, or federal elections in Pawtucket is actively contested by political parties. Certainly the
record suggests that parties play a major role even in campaigns that often are entirely
nonpartisan in other cities. School committee candidates, for example, are endorsed by the local
Democratic committee.
The state of the record does not permit us to find overbreadth; indeed such a step is not to be
taken lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the
short period before the election was held, was on the constitutionality of the statute as applied.
Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the
opportunity to demonstrate that the charter forecloses access to a significant number of offices,
the candidacy for which by municipal employees would not pose the possible threats to
government efficiency and integrity which Letter Carriers, as we have interpreted it, deems
significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics
supplied, citations omitted)
Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft,
heavily relied upon by the ponencia, has effectively been overruled.69 As it is no longer good
law, the ponencia’s exhortation that "[since] the Americans, from whom we copied the provision
in question, had already stricken down a similar measure for being unconstitutional[,] it is high-
time that we, too, should follow suit" is misplaced and unwarranted.70
Accordingly, our assailed Decision’s submission that the right to run for public office is
"inextricably linked" with two fundamental freedoms – those of expression and association – lies
on barren ground. American case law has in fact never recognized a fundamental right to express
one’s political views through candidacy,71 as to invoke a rigorous standard of review.72 Bart v.
Telford73 pointedly stated that "[t]he First Amendment does not in terms confer a right to run for
public office, and this court has held that it does not do so by implication either." Thus, one’s
interest in seeking office, by itself, is not entitled to constitutional protection.74 Moreover, one
cannot bring one’s action under the rubric of freedom of association, absent any allegation that,
by running for an elective position, one is advancing the political ideas of a particular set of
voters.75
Prescinding from these premises, it is crystal clear that the provisions challenged in the case at
bar, are not violative of the equal protection clause. The deemed-resigned provisions
substantially serve governmental interests (i.e., (i) efficient civil service faithful to the
government and the people rather than to party; (ii) avoidance of the appearance of "political
justice" as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv)
ensuring that employees achieve advancement on their merits and that they be free from both
coercion and the prospect of favor from political activity). These are interests that are important
enough to outweigh the non-fundamental right of appointive officials and employees to seek
elective office.1avvphi1
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing76 and
Morial, et al. v. Judiciary Commission of the State of Louisiana, et al.77 to buttress his dissent.
Maintaining that resign-to-run provisions are valid only when made applicable to specified
officials, he explains:
…U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions
when applied to specified or particular officials, as distinguished from all others,78 under a
classification that is germane to the purposes of the law. These resign-to-run legislations were
not expressed in a general and sweeping provision, and thus did not violate the test of being
germane to the purpose of the law, the second requisite for a valid classification. Directed, as
they were, to particular officials, they were not overly encompassing as to be overbroad.
(emphasis in the original)
This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run
provisions in these cases were upheld not because they referred to specified or particular officials
(vis-à-vis a general class); the questioned provisions were found valid precisely because the
Court deferred to legislative judgment and found that a regulation is not devoid of a rational
predicate simply because it happens to be incomplete. In fact, the equal protection challenge in
Clements revolved around the claim that the State of Texas failed to explain why some public
officials are subject to the resign-to-run provisions, while others are not. Ruled the United States
Supreme Court:
Article XVI, § 65, of the Texas Constitution provides that the holders of certain offices
automatically resign their positions if they become candidates for any other elected office, unless
the unexpired portion of the current term is one year or less. The burdens that § 65 imposes on
candidacy are even less substantial than those imposed by § 19. The two provisions, of course,
serve essentially the same state interests. The District Court found § 65 deficient, however, not
because of the nature or extent of the provision's restriction on candidacy, but because of the
manner in which the offices are classified. According to the District Court, the classification
system cannot survive equal protection scrutiny, because Texas has failed to explain sufficiently
why some elected public officials are subject to § 65 and why others are not. As with the case of
§ 19, we conclude that § 65 survives a challenge under the Equal Protection Clause unless
appellees can show that there is no rational predicate to the classification scheme.
The history behind § 65 shows that it may be upheld consistent with the "one step at a time"
approach that this Court has undertaken with regard to state regulation not subject to more
vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in
1954 as a transitional provision applying only to the 1954 election. Section 65 extended the
terms of those offices enumerated in the provision from two to four years. The provision also
staggered the terms of other offices so that at least some county and local offices would be
contested at each election. The automatic resignation proviso to § 65 was not added until 1958.
In that year, a similar automatic resignation provision was added in Art. XI, § 11, which applies
to officeholders in home rule cities who serve terms longer than two years. Section 11 allows
home rule cities the option of extending the terms of municipal offices from two to up to four
years.
Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of
1958. That the State did not go further in applying the automatic resignation provision to those
officeholders whose terms were not extended by § 11 or § 65, absent an invidious purpose, is not
the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection
Clause. A regulation is not devoid of a rational predicate simply because it happens to be
incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected
officeholder's candidacy for another elected office unless and until it places similar restrictions
on other officeholders. The provision's language and its history belie any notion that § 65 serves
the invidious purpose of denying access to the political process to identifiable classes of potential
candidates. (citations omitted and italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket
approval of restrictions on the right of public employees to become candidates for public office"
out of context. A correct reading of that line readily shows that the Court only meant to confine
its ruling to the facts of that case, as each equal protection challenge would necessarily have to
involve weighing governmental interests vis-à-vis the specific prohibition assailed. The Court
held:
The interests of public employees in free expression and political association are unquestionably
entitled to the protection of the first and fourteenth amendments. Nothing in today's decision
should be taken to imply that public employees may be prohibited from expressing their private
views on controversial topics in a manner that does not interfere with the proper performance of
their public duties. In today's decision, there is no blanket approval of restrictions on the right of
public employees to become candidates for public office. Nor do we approve any general
restrictions on the political and civil rights of judges in particular. Our holding is necessarily
narrowed by the methodology employed to reach it. A requirement that a state judge resign his
office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation
to the achievement of the state's interest in preventing the actuality or appearance of judicial
impropriety. Such a requirement offends neither the first amendment's guarantees of free
expression and association nor the fourteenth amendment's guarantee of equal protection of the
laws. (italics supplied)
Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining which of its employment
positions require restrictions on partisan political activities and which may be left unregulated.
And a State can hardly be faulted for attempting to limit the positions upon which such
restrictions are placed. (citations omitted)
V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election
Code Do Not Suffer from Overbreadth
Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of
the Omnibus Election Code on equal protection ground, our assailed Decision struck them down
for being overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts
without due regard for the type of position being held by the employee seeking an elective post
and the degree of influence that may be attendant thereto;79 and
(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive
positions without due regard for the type of office being sought, whether it be partisan or
nonpartisan in character, or in the national, municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i. Limitation on Candidacy Regardless of Incumbent Appointive Official’s Position, Valid
According to the assailed Decision, the challenged provisions of law are overly broad because
they apply indiscriminately to all civil servants holding appointive posts, without due regard for
the type of position being held by the employee running for elective office and the degree of
influence that may be attendant thereto.
Its underlying assumption appears to be that the evils sought to be prevented are extant only
when the incumbent appointive official running for elective office holds an influential post.
Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the
government posed by the partisan potential of a large and growing bureaucracy: the danger of
systematic abuse perpetuated by a "powerful political machine" that has amassed "the scattered
powers of government workers" so as to give itself and its incumbent workers an "unbreakable
grasp on the reins of power."80 As elucidated in our prior exposition:81
Attempts by government employees to wield influence over others or to make use of their
respective positions (apparently) to promote their own candidacy may seem tolerable – even
innocuous – particularly when viewed in isolation from other similar attempts by other
government employees. Yet it would be decidedly foolhardy to discount the equally (if not more)
realistic and dangerous possibility that such seemingly disjointed attempts, when taken together,
constitute a veiled effort on the part of an emerging central party structure to advance its own
agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming
from various levels of the bureaucracy.
…[T]he avoidance of such a "politically active public work force" which could give an emerging
political machine an "unbreakable grasp on the reins of power" is reason enough to impose a
restriction on the candidacies of all appointive public officials without further distinction as to
the type of positions being held by such employees or the degree of influence that may be
attendant thereto. (citations omitted)
ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid
The assailed Decision also held that the challenged provisions of law are overly broad because
they are made to apply indiscriminately to all civil servants holding appointive offices, without
due regard for the type of elective office being sought, whether it be partisan or nonpartisan in
character, or in the national, municipal or barangay level.
This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office
and the temptations it fosters are sufficiently different from those involved in an office removed
from regular party politics [so as] to warrant distinctive treatment,"82 so that restrictions on
candidacy akin to those imposed by the challenged provisions can validly apply only to
situations in which the elective office sought is partisan in character. To the extent, therefore,
that such restrictions are said to preclude even candidacies for nonpartisan elective offices, the
challenged restrictions are to be considered as overbroad.
Again, a careful study of the challenged provisions and related laws on the matter will show that
the alleged overbreadth is more apparent than real. Our exposition on this issue has not been
repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth
therein refer to the filing of certificates of candidacy and nomination of official candidates of
registered political parties, in connection with the May 10, 2010 National and Local
Elections.83 Obviously, these rules and guidelines, including the restriction in Section 4(a) of
Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local
Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the
restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials
vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this
score, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable.
Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus
Election Code, in conjunction with other related laws on the matter, will confirm that these
provisions are likewise not intended to apply to elections for nonpartisan public offices.
The only elections which are relevant to the present inquiry are the elections for barangay
offices, since these are the only elections in this country which involve nonpartisan public
offices.84
In this regard, it is well to note that from as far back as the enactment of the Omnibus Election
Code in 1985, Congress has intended that these nonpartisan barangay elections be governed by
special rules, including a separate rule on deemed resignations which is found in Section 39 of
the Omnibus Election Code. Said provision states:
Section 39. Certificate of Candidacy. – No person shall be elected punong barangay or kagawad
ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day
from the commencement of the election period but not later than the day before the beginning of
the campaign period in a form to be prescribed by the Commission. The candidate shall state the
barangay office for which he is a candidate.
xxxx
Any elective or appointive municipal, city, provincial or national official or employee, or those
in the civil or military service, including those in government-owned or-controlled corporations,
shall be considered automatically resigned upon the filing of certificate of candidacy for a
barangay office.
Since barangay elections are governed by a separate deemed resignation rule, under the present
state of law, there would be no occasion to apply the restriction on candidacy found in Section 66
of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to
any election other than a partisan one. For this reason, the overbreadth challenge raised against
Section 66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA 9369
must also fail. 85
In any event, even if we were to assume, for the sake of argument, that Section 66 of the
Omnibus Election Code and the corresponding provision in Section 13 of RA 9369 are general
rules that apply also to elections for nonpartisan public offices, the overbreadth challenge would
still be futile. Again, we explained:
In the first place, the view that Congress is limited to controlling only partisan behavior has not
received judicial imprimatur, because the general proposition of the relevant US cases on the
matter is simply that the government has an interest in regulating the conduct and speech of its
employees that differs significantly from those it possesses in connection with regulation of the
speech of the citizenry in general.86
Moreover, in order to have a statute declared as unconstitutional or void on its face for being
overly broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the
overbreadth must not only be real, but substantial as well, judged in relation to the statute’s
plainly legitimate sweep.87
In operational terms, measuring the substantiality of a statute’s overbreadth would entail, among
other things, a rough balancing of the number of valid applications compared to the number of
potentially invalid applications.88 In this regard, some sensitivity to reality is needed; an invalid
application that is far-fetched does not deserve as much weight as one that is probable.89 The
question is a matter of degree.90 Thus, assuming for the sake of argument that the partisan-
nonpartisan distinction is valid and necessary such that a statute which fails to make this
distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted
must demonstrate or provide this Court with some idea of the number of potentially invalid
elections (i.e. the number of elections that were insulated from party rivalry but were
nevertheless closed to appointive employees) that may in all probability result from the
enforcement of the statute.91
The state of the record, however, does not permit us to find overbreadth. Borrowing from the
words of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken in
the dark,92 especially since an overbreadth finding in this case would effectively prohibit the
State from ‘enforcing an otherwise valid measure against conduct that is admittedly within its
power to proscribe.’93
This Court would do well to proceed with tiptoe caution, particularly when it comes to the
application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to
restrict or burden the exercise of the right to freedom of speech, for such approach is manifestly
strong medicine that must be used sparingly, and only as a last resort.94
In the United States, claims of facial overbreadth have been entertained only where, in the
judgment of the court, the possibility that protected speech of others may be muted and perceived
grievances left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs
the possible harm to society in allowing some unprotected speech or conduct to go
unpunished.95 Facial overbreadth has likewise not been invoked where a limiting construction
could be placed on the challenged statute, and where there are readily apparent constructions that
would cure, or at least substantially reduce, the alleged overbreadth of the statute.96
In the case at bar, the probable harm to society in permitting incumbent appointive officials to
remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of
having arguably protected candidacies blocked by the possible inhibitory effect of a potentially
overly broad statute.a1f
In this light, the conceivably impermissible applications of the challenged statutes – which are, at
best, bold predictions – cannot justify invalidating these statutes in toto and prohibiting the State
from enforcing them against conduct that is, and has for more than 100 years been,
unquestionably within its power and interest to proscribe.97 Instead, the more prudent approach
would be to deal with these conceivably impermissible applications through case-by-case
adjudication rather than through a total invalidation of the statute itself.98
Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for
Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had
already filed their Certificates of Candidacy without relinquishing their posts.99 Several
COMELEC election officers had likewise filed their Certificates of Candidacy in their respective
provinces.100 Even the Secretary of Justice had filed her certificate of substitution for
representative of the first district of Quezon province last December 14, 2009101 – even as her
position as Justice Secretary includes supervision over the City and Provincial
Prosecutors,102 who, in turn, act as Vice-Chairmen of the respective Boards of Canvassers.103 The
Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat
into the political arena. We cannot allow the tilting of our electoral playing field in their favor.
For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of
RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not
unconstitutionally overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent’s and the intervenors’
Motions for Reconsideration; REVERSE and SET ASIDE this Court’s December 1, 2009
Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not
UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2) the second
proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66 of the
Omnibus Election Code.
SO ORDERED.
REYNATO S. PUNO
Chief Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE C. MENDOZA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above resolution had been reached in consultation before the case was assigned to the writer of
the opinion of the Court.
REYNATO S. PUNO
Chief Justice
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 176006               March 26, 2010
NATIONAL POWER CORPORATION, Petitioner,
vs.
PINATUBO COMMERCIAL, represented by ALFREDO A. DY, Respondent.
DECISION
CORONA, J.:
The National Power Corporation (NPC)1 questions the decision dated June 30, 2006 rendered by
the Regional Trial Court (RTC) of Mandaluyong City, Branch 213 declaring items 3 and 3.1 of
NPC Circular No. 99-75 unconstitutional. The dispositive portion of the decision provides:
WHEREFORE then, in view of the foregoing, judgment is hereby rendered declaring item[s] 3
and 3.1 of NAPOCOR Circular No. 99-75, which [allow] only partnerships or corporations that
directly use aluminum as the raw material in producing finished products either purely or partly
out of aluminum, to participate in the bidding for the disposal of ACSR wires as unconstitutional
for being violative of substantial due process and the equal protection clause of the Constitution
as well as for restraining competitive free trade and commerce.
The claim for attorney’s fees is denied for lack of merit.
No costs.
SO ORDERED.2
NPC also assails the RTC resolution dated November 20, 2006 denying its motion for
reconsideration for lack of merit.3
In this petition, NPC poses the sole issue for our review:
WHETHER OR NOT THE RTC GRAVELY ERRED WHEN IT DECLARED ITEMS 3 AND
3.1 OF NAPOCOR CIRCULAR NO. 99-75 AS UNCONSTITUTIONAL FOR BEING
VIOLATIVE OF SUBSTANTIAL DUE PROCESS AND THE EQUAL PROTECTION
CLAUSE OF THE CONSTITUTION AS WELL AS FOR RESTRAINING COMPETITIVE
FREE TRADE AND COMMERCE.4
NPC Circular No. 99-755 dated October 8, 1999 set the guidelines in the "disposal of scrap
aluminum conductor steel-reinforced or ACSRs in order to decongest and maintain good
housekeeping in NPC installations and to generate additional income for NPC." Items 3 and 3.1
of the circular provide:
3. QUALIFIED BIDDERS
3.1 Qualified bidders envisioned in this circular are partnerships or corporations that directly use
aluminum as the raw material in producing finished products either purely or partly out of
aluminum, or their duly appointed representatives. These bidders may be based locally or
overseas.6
In April 2003, NPC published an invitation for the pre-qualification of bidders for the public sale
of its scrap ACSR7 cables. Respondent Pinatubo Commercial, a trader of scrap materials such as
copper, aluminum, steel and other ferrous and non-ferrous materials, submitted a pre-
qualification form to NPC. Pinatubo, however, was informed in a letter dated April 29, 2003 that
its application for pre-qualification had been denied.8 Petitioner asked for reconsideration but
NPC denied it.9
Pinatubo then filed a petition in the RTC for the annulment of NPC Circular No. 99-75, with a
prayer for the issuance of a temporary restraining order and/or writ of preliminary
injunction.10 Pinatubo argued that the circular was unconstitutional as it violated the due process
and equal protection clauses of the Constitution, and ran counter to the government policy of
competitive public bidding.11
The RTC upheld Pinatubo’s position and declared items 3 and 3.1 of the circular
unconstitutional. The RTC ruled that it was violative of substantive due process because, while it
created rights in favor of third parties, the circular had not been published. It also pronounced
that the circular violated the equal protection clause since it favored manufacturers and
processors of aluminum scrap vis-à-vis dealers/traders in the purchase of aluminum ACSR
cables from NPC. Lastly, the RTC found that the circular denied traders the right to exercise
their business and restrained free competition inasmuch as it allowed only a certain sector to
participate in the bidding.12
In this petition, NPC insists that there was no need to publish the circular since it was not of
general application. It was addressed only to particular persons or class of persons, namely the
disposal committees, heads of offices, regional and all other officials involved in the disposition
of ACSRs. NPC also contends that there was a substantial distinction between manufacturers and
traders of aluminum scrap materials specially viewed in the light of RA 7832.13 According to
NPC, by limiting the prospective bidders to manufacturers, it could easily monitor the market of
its scrap ACSRs. There was rampant fencing of stolen NPC wires. NPC likewise maintains that
traders were not prohibited from participating in the pre-qualification as long as they had a tie-up
with a manufacturer.14
The questions that need to be resolved in this case are:
(1) whether NPC Circular No. 99-75 must be published; and
(2) whether items 3 and 3.1 of NPC Circular No. 99-75 -
(a) violated the equal protection clause of the Constitution and
(b) restrained free trade and competition.
Tañada v. Tuvera15 stressed the need for publication in order for statutes and administrative rules
and regulations to have binding force and effect, viz.:
x x x all statutes, including those of local application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days after publication unless a different
effectivity is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President
in the exercise of legislative power or, at present, directly conferred by the Constitution.
Administrative Rules and Regulations must also be published if their purpose is to enforce or
implement existing law pursuant also to a valid delegation.16
Tañada, however, qualified 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. Neither is
publication required of the so-called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in the performance of
their duties.17 (emphasis ours)
In this case, NPC Circular No. 99-75 did not have to be published since it was merely an internal
rule or regulation. It did not purport to enforce or implement an existing law but was merely a
directive issued by the NPC President to his subordinates to regulate the proper and efficient
disposal of scrap ACSRs to qualified bidders. Thus, NPC Circular No. 99-75 defined the
responsibilities of the different NPC personnel in the disposal, pre-qualification, bidding and
award of scrap ACSRS.18 It also provided for the deposit of a proposal bond to be submitted by
bidders, the approval of the award, mode of payment and release of awarded scrap ACSRs.19 All
these guidelines were addressed to the NPC personnel involved in the bidding and award of
scrap ACSRs. It did not, in any way, affect the rights of the public in general or of any other
person not involved in the bidding process. Assuming it affected individual rights, it did so only
remotely, indirectly and incidentally.
Pinatubo’s argument that items 3 and 3.1 of NPC Circular No. 99-75 deprived it of its "right to
bid" or that these conferred such right in favor of a third person is erroneous. Bidding, in its
comprehensive sense, means making an offer or an invitation to prospective contractors whereby
the government manifests its intention to invite proposals for the purchase of supplies, materials
and equipment for official business or public use, or for public works or repair.20 Bidding rules
may specify other conditions or require that the bidding process be subjected to certain
reservations or qualifications.21 Since a bid partakes of the nature of an offer to contract with the
government,22 the government agency involved may or may not accept it. Moreover, being the
owner of the property subject of the bid, the government has the power to determine who shall be
its recipient, as well as under what terms it may be awarded. In this sense, participation in the
bidding process is a privilege inasmuch as it can only be exercised under existing criteria
imposed by the government itself. As such, prospective bidders, including Pinatubo, cannot
claim any demandable right to take part in it if they fail to meet these criteria. Thus, it has been
stated that under the traditional form of property ownership, recipients of privileges or largesse
from the government cannot be said to have property rights because they possess no traditionally
recognized proprietary interest therein.23
Also, as the discretion to accept or reject bids and award contracts is of such wide latitude, courts
will not interfere, unless it is apparent that such discretion is exercised arbitrarily, or used as a
shield to a fraudulent award. The exercise of that discretion is a policy decision that necessitates
prior inquiry, investigation, comparison, evaluation, and deliberation. This task can best be
discharged by the concerned government agencies, not by the courts. Courts will not interfere
with executive or legislative discretion exercised within those boundaries. Otherwise, they stray
into the realm of policy decision-making.24
Limiting qualified bidders in this case to partnerships or corporations that directly use aluminum
as the raw material in producing finished products made purely or partly of aluminum was an
exercise of discretion by the NPC. Unless the discretion was exercised arbitrarily or used as a
subterfuge for fraud, the Court will not interfere with the exercise of such discretion.
This brings to the fore the next question: whether items 3 and 3.1 of NPC Circular No. 99-75
violated the equal protection clause of the Constitution.
The equal protection clause means that "no person or class of persons shall be deprived of the
same protection of laws which is enjoyed by other persons or other classes in the same place and
in like circumstances."25 The guaranty of the equal protection of the laws is not violated by a
legislation based on a reasonable classification.26 The equal protection clause, therefore, does not
preclude classification of individuals who may be accorded different treatment under the law as
long as the classification is reasonable and not arbitrary.271avvphi1
Items 3 and 3.1 met the standards of a valid classification. Indeed, as juxtaposed by the RTC, the
purpose of NPC Circular No. 99-75 was to dispose of the ACSR wires.28 As stated by Pinatubo,
it was also meant to earn income for the government.29 Nevertheless, the disposal and revenue-
generating objective of the circular was not an end in itself and could not bar NPC from
imposing conditions for the proper disposition and ultimately, the legitimate use of the scrap
ACSR wires. In giving preference to direct manufacturers and producers, it was the intent of
NPC to support RA 7832, which penalizes the theft of ACSR in excess of 100 MCM.30 The
difference in treatment between direct manufacturers and producers, on one hand, and traders, on
the other, was rationalized by NPC as follows:
x x x NAPOCOR can now easily monitor the market of its scrap ACSR wires and verify whether
or not a person’s possession of such materials is legal or not; and consequently, prosecute under
R.A. 7832, those whose possession, control or custody of such material is unexplained. This is
based upon the reasonable presumption that if the buyer were a manufacturer or processor, the
scrap ACSRs end with him as the latter uses it to make finished products; but if the buyer were a
trader, there is greater probability that the purchased materials may pass from one trader to
another. Should traders without tie-up to manufacturers or processors of aluminum be allowed to
participate in the bidding, the ACSRs bidded out to them will likely co-mingle with those already
proliferating in the illegal market. Thus, great difficulty shall be encountered by NAPOCOR
and/or those authorities tasked to implement R.A. 7832 in determining whether or not the
ACSRs found in the possession, control and custody of a person suspected of theft [of] electric
power transmission lines and materials are the fruit of the offense defined in Section 3 of R.A.
7832.31
Items 3 and 3.1 clearly did not infringe on the equal protection clause as these were based on a
reasonable classification intended to protect, not the right of any business or trade but the
integrity of government property, as well as promote the objectives of RA 7832. Traders like
Pinatubo could not claim similar treatment as direct manufacturers/processors especially in the
light of their failure to negate the rationale behind the distinction.
Finally, items 3 and 3.1 of NPC Circular No. 99-75 did not restrain free trade or competition.
Pinatubo contends that the condition imposed by NPC under items 3 and 3.1 violated the
principle of competitiveness advanced by RA 9184 (Government Procurement Reform Act)
which states:
SEC. 3. Governing Principles on Government Procurement. – All procurement of the national
government, its departments, bureaus, offices and agencies, including state universities and
colleges, government-owned and/or controlled corporations, government financial institutions
and local government units, shall, in all cases, be governed by these principles:
xxx
(b) Competitiveness by extending equal opportunity to enable private contracting parties who
are eligible and qualified to participate in public bidding. (emphasis ours)
The foregoing provision imposed the precondition that the contracting parties should
be eligible and qualified. It should be emphasized that the bidding process was not a "free-for-
all" where any and all interested parties, qualified or not, could take part. Section 5(e) of RA
9184 defines competitive bidding as a "method of procurement which is open to participation by
any interested party and which consists of the following processes: advertisement, pre-bid
conference, eligibility screening of prospective bidders, receipt and opening of bids, evaluation
of bids, post-qualification, and award of contract x x x." The law categorically mandates that
prospective bidders are subject to eligibility screening, and as earlier stated, bidding rules may
specify other conditions or order that the bidding process be subjected to certain reservations or
qualifications.32 Thus, in its pre-qualification guidelines issued for the sale of scrap ACSRs, the
NPC reserved the right to pre-disqualify any applicant who did not meet the requirements for
pre-qualification.33 Clearly, the competitiveness policy of a bidding process presupposes the
eligibility and qualification of a contestant; otherwise, it defeats the principle that only
"responsible" and "qualified" bidders can bid and be awarded government contracts.34 Our free
enterprise system is not based on a market of pure and unadulterated competition where the State
pursues a strict hands-off policy and follows the let-the-devil-devour-the-hindmost rule.35
Moreover, the mere fact that incentives and privileges are granted to certain enterprises to the
exclusion of others does not render the issuance unconstitutional for espousing unfair
competition.36 While the Constitution enshrines free enterprise as a policy, it nonetheless
reserves to the government the power to intervene whenever necessary to promote the general
welfare.37 In the present case, the unregulated disposal and sale of scrap ACSR wires will hamper
the government’s effort of curtailing the pernicious practice of trafficking stolen government
property. This is an evil sought to be prevented by RA 7832 and certainly, it was well within the
authority of the NPC to prescribe conditions in order to prevent it.
WHEREFORE, the petition is hereby GRANTED. The decision of the Regional Trial Court of
Mandaluyong City, Branch 213 dated June 30, 2006 and resolution dated November 20, 2006
are REVERSED and SET ASIDE. Civil Case No. MC-03-2179 for the annulment of NPC
Circular No. 99-75 is hereby DISMISSED.
SO ORDERED.
RENATO C. CORONA
Associate Justice
Chairperson
WE CONCUR:

PRESBITERO J. VELASCO, JR. DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN* JOSE CATRAL MENDOZA

Associate Justice Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.
RENATO C. CORONA
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
ANTONIO T. CARPIO
Acting Chief Justice

EN BANC
G.R. No. 211833, April 07, 2015
FERDINAND R. VILLANUEVA, PRESIDING JUDGE, MCTC, COMPOSTELA-NEW
BATAAN, COMPOSTELA VALLEY PROVINCE, Petitioner, v. JUDICIAL AND BAR
COUNCIL, Respondent.
DECISION
REYES, J.:
Presiding Judge Ferdinand R. Villanueva (petitioner) directly came to this Court via a Petition
for Prohibition, Mandamus, and Certiorari, and Declaratory Relief1 under Rules 65 and 63 of the
Rules of Court, respectively, with prayer for the issuance of a temporary restraining order and/or
writ of preliminary injunction, to assail the policy of the Judicial and Bar Council (JBC),
requiring five years of service as judges of first-level courts before they can qualify as applicant
to second-level courts, on the ground that it is unconstitutional, and was issued with grave abuse
of discretion.chanRoblesvirtualLawlibrary
The Facts

The petitioner was appointed on September 18, 2012 as the Presiding Judge of the Municipal
Circuit Trial Court, Compostela-New Bataan, Poblacion, Compostela Valley Province, Region
XI, which is a first-level court. On September 27, 2013, he applied for the vacant position of
Presiding Judge in the following Regional Trial Courts (RTCs): Branch 31, Tagum City; Branch
13, Davao City; and Branch 6, Prosperidad, Agusan Del Sur.

In a letter2 dated December 18, 2013, JBC's Office of Recruitment, Selection and Nomination,
informed the petitioner that he was not included in the list of candidates for the said stations. On
the same date, the petitioner sent a letter, through electronic mail, seeking reconsideration of his
non-inclusion in the list of considered applicants and protesting the inclusion of applicants who
did not pass the prejudicature examination.

The petitioner was informed by the JBC Executive Officer, through a letter3 dated February 3,
2014, that his protest and reconsideration was duly noted by the JBC en banc. However, its
decision not to include his name in the list of applicants was upheld due to the JBC's long-
standing policy of opening the chance for promotion to second-level courts to, among others,
incumbent judges who have served in their current position for at least five years, and since the
petitioner has been a judge only for more than a year, he was excluded from the list. This caused
the petitioner to take recourse to this Court.

In his petition, he argued that: (1) the Constitution already prescribed the qualifications of an
RTC judge, and the JBC could add no more; (2) the JBC's five-year requirement violates the
equal protection and due process clauses of the Constitution; and (3) the JBC's five-year
requirement violates the constitutional provision on Social Justice and Human Rights for Equal
Opportunity of Employment. The petitioner also asserted that the requirement of the
Prejudicature Program mandated by Section 104 of Republic Act (R.A.) No. 85575 should not be
merely directory and should be fully implemented. He further alleged that he has all the
qualifications for the position prescribed by the Constitution and by Congress, since he has
already complied with the requirement of 10 years of practice of law.

In compliance with the Court's Resolution6 dated April 22, 2014, the JBC7 and the Office of the
Solicitor General (OSG)8separately submitted their Comments. Summing up the arguments of
the JBC and the OSG, they essentially stated that the petition is procedurally infirm and that the
assailed policy does not violate the equal protection and due process clauses. They posited that:
(1) the writ of certiorari and prohibition cannot issue to prevent the JBC from performing its
principal function under the Constitution to recommend appointees to the Judiciary because the
JBC is not a tribunal exercising judicial or quasi-judicial function; (2) the remedy of mandamus
and declaratory relief will not lie because the petitioner has no clear legal right that needs to be
protected; (3) the equal protection clause is not violated because the classification of lower court
judges who have served at least five years and those who have served less than five years is valid
as it is performance and experience based; and (4) there is no violation of due process as the
policy is merely internal in nature.chanRoblesvirtualLawlibrary
The Issue

The crux of this petition is whether or not the policy of JBC requiring five years of service as
judges of first-level courts before they can qualify as applicant to second-level courts is
constitutional.
Ruling of the Court
Procedural Issues:

Before resolving the substantive issues, the Court considers it necessary to first determine
whether or not the action for certiorari, prohibition and mandamus, and declaratory relief
commenced by the petitioner was proper.

One. The remedies of certiorari and prohibition are tenable. "The present Rules of Court uses
two special civil actions for determining and correcting grave abuse of discretion amounting to
lack or excess of jurisdiction. These are the special civil actions for certiorari and prohibition,
and both are governed by Rule 65."9 As discussed in the case of Maria Carolina P. Araullo, etc.,
et al. v. Benigno Simeon C. Aquino III, etc., et al.,10 this Court explained
that:chanroblesvirtuallawlibrary
With respect to the Court, however, the remedies of certiorari and prohibition are necessarily
broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct
errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising
judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of
grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or
ministerial functions. This application is expressly authorized by the text of the second paragraph
of Section 1, supra.

Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional

issues and to review and/or prohibit or nullify the acts of legislative and executive
officials.11 (Citation omitted)
In this case, it is clear that the JBC does not fall within the scope of a tribunal, board, or officer
exercising judicial or quasi-judicial functions. In the process of selecting and screening
applicants, the JBC neither acted in any judicial or quasi-judicial capacity nor assumed unto
itself any performance of judicial or quasi-judicial prerogative. However, since the formulation
of guidelines and criteria, including the policy that the petitioner now assails, is necessary and
incidental to the exercise of the JBC's constitutional mandate, a determination must be made on
whether the JBC has acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing and enforcing the said policy.

Besides, the Court can appropriately take cognizance of this case by virtue of the Court's power
of supervision over the JBC. Jurisprudence provides that the power of supervision is the power
of oversight, or the authority to see that subordinate officers perform their duties. It ensures that
the laws and the rules governing the conduct of a government entity are observed and complied
with. Supervising officials see to it that rules are followed, but they themselves do not lay down
such rules, nor do they have the discretion to modify or replace them. If the rules are not
observed, they may order the work done or redone, but only to conform to such rules. They may
not prescribe their own manner of execution of the act. They have no discretion on this matter
except to see to it that the rules are followed.12

Following this definition, the supervisory authority of the Court over the JBC is to see to it that
the JBC complies with its own rules and procedures. Thus, when the policies of the JBC are
being attacked, then the Court, through its supervisory authority over the JBC, has the duty to
inquire about the matter and ensure that the JBC complies with its own rules.

Two. The remedy of mandamus cannot be availed of by the petitioner in assailing JBC's policy.
The petitioner insisted that mandamus is proper because his right was violated when he was not
included in the list of candidates for the RTC courts he applied for. He said that his non-inclusion
in the list of candidates for these stations has caused him direct injury.

It is essential to the issuance of a writ of mandamus that the applicant should have a clear legal
right to the thing demanded and it must be the imperative duty of the respondent to perform the
act required.13 The petitioner bears the burden to show that there is such a clear legal right to the
performance of the act, and a corresponding compelling duty on the part of the respondent to
perform the act. The remedy of mandamus, as an extraordinary writ, lies only to compel an
officer to perform a ministerial duty, not a discretionary one.14 Clearly, the use of discretion and
the performance of a ministerial act are mutually exclusive.

The writ of mandamus does not issue to control or review the exercise of discretion or to compel
a course of conduct, which, it quickly seems to us, was what the petitioner would have the JBC
do in his favor. The function of the JBC to select and recommend nominees for vacant judicial
positions is discretionary, not ministerial. Moreso, the petitioner cannot claim any legal right to
be included in the list of nominees for judicial vacancies. Possession of the constitutional and
statutory qualifications for appointment to the judiciary may not be used to legally demand that
one's name be included in the list of candidates for a judicial vacancy. One's inclusion in the list
of the candidates depends on the discretion of the JBC, thus:chanroblesvirtuallawlibrary
The fact that an individual possesses the constitutional and statutory qualifications for
appointment to the Judiciary does not create an entitlement or expectation that his or her name be
included in the list of candidates for a judicial vacancy. By submitting an application or
accepting a recommendation, one submits to the authority of the JBC to subject the former to the
search, screening, and selection process, and to use its discretion in deciding whether or not one
should be included in the list. Indeed, assuming that if one has the legal right to be included in
the list of candidates simply because he or she possesses the constitutional and statutory
qualifications, then the application process would then be reduced to a mere mechanical function
of the JBC; and the search, screening, and selection process would not only be unnecessary, but
also improper. However, this is clearly not the constitutional intent. One's inclusion in the list
of candidates is subject to the discretion of the JBC over the selection of nominees for a
particular judicial post. Such candidate's inclusion is not, therefore, a legally demandable right,
but simply a privilege the conferment of which is subject to the JBC's sound discretion.

Moreover, petitioner is essentially seeking a promotional appointment, that is, a promotion from
a first-level court to a second level court. There is no law, however, that grants him the right
to a promotion to second-level courts.15 (Emphasis in the original)
Clearly, to be included as an applicant to second-level judge is not properly compellable by
mandamus inasmuch as it involves the exercise of sound discretion by the JBC.

Three. The petition for declaratory relief is improper. "An action for declaratory relief should be
filed by a person interested under a deed, a will, a contract or other written instrument, and
whose rights are affected by a statute, an executive order, a regulation or an ordinance. The relief
sought under this remedy includes the interpretation and determination of the validity of the
written instrument and the judicial declaration of the parties' rights or duties
thereunder."16 "[T]he purpose of the action 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."17

In this case, the petition for declaratory relief did not involve an unsound policy. Rather, the
petition specifically sought a judicial declaration that the petitioner has the right to be included in
the list of applicants although he failed to meet JBC's five-year requirement policy. Again, the
Court reiterates that no person possesses a legal right under the Constitution to be included in the
list of nominees for vacant judicial positions. The opportunity of appointment to judicial office is
a mere privilege, and not a judicially enforceable right that may be properly claimed by any
person. The inclusion in the list of candidates, which is one of the incidents of such appointment,
is not a right either. Thus, the petitioner cannot claim any right that could have been affected by
the assailed policy.

Furthermore, the instant petition must necessarily fail because this Court does not have original
jurisdiction over a petition for declaratory relief even if only questions of law are involved.18 The
special civil action of declaratory relief falls under the exclusive jurisdiction of the appropriate
RTC pursuant to Section 1919 of Batas Pambansa Blg. 129, as amended by R.A.No. 7691.20

Therefore, by virtue of the Court's supervisory duty over the JBC and in the exercise of its
expanded judicial power, the Court assumes jurisdiction over the present petition. But in any
event, even if the Court will set aside procedural infirmities, the instant petition should still be
dismissed.chanRoblesvirtualLawlibrary
Substantive Issues

As an offspring of the 1987 Constitution, the JBC is mandated to recommend appointees to the
judiciary and only those nominated by the JBC in a list officially transmitted to the President
may be appointed by the latter as justice or judge in the judiciary. Thus, the JBC is burdened
with a great responsibility that is imbued with public interest as it determines the men and
women who will sit on the judicial bench. While the 1987 Constitution has provided the
qualifications of members of the judiciary, this does not preclude the JBC from having its own
set of rules and procedures and providing policies to effectively ensure its mandate.

The functions of searching, screening, and selecting are necessary and incidental to the JBC's
principal function of choosing and recommending nominees for vacancies in the judiciary for
appointment by the President. However, the Constitution did not lay down in precise terms the
process that the JBC shall follow in determining applicants' qualifications. In carrying out its
main function, the JBC has the authority to set the standards/criteria in choosing its nominees for
every vacancy in the judiciary, subject only to the minimum qualifications required by the
Constitution and law for every position. The search for these long held qualities necessarily
requires a degree of flexibility in order to determine who is most fit among the applicants. Thus,
the JBC has sufficient but not unbridled license to act in performing its duties.

JBC's ultimate goal is to recommend nominees and not simply to fill up judicial vacancies in
order to promote an effective and efficient administration of justice. Given this pragmatic
situation, the JBC had to establish a set of uniform criteria in order to ascertain whether an
applicant meets the minimum constitutional qualifications and possesses the qualities expected
of him and his office. Thus, the adoption of the five-year requirement policy applied by JBC to
the petitioner's case is necessary and incidental to the function conferred by the Constitution to
the JBC.

Equal Protection

There is no question that JBC employs standards to have a rational basis to screen applicants
who cannot be all accommodated and appointed to a vacancy in the judiciary, to determine who
is best qualified among the applicants, and not to discriminate against any particular individual
or class.

The equal protection clause of the Constitution does not require the universal application of the
laws to all persons or things without distinction; what it requires is simply equality among equals
as determined according to a valid classification. Hence, the Court has affirmed that if a law
neither burdens a fundamental right nor targets a suspect class, the classification stands as long
as it bears a rational relationship to some legitimate government
end.21ChanRoblesVirtualawlibrary

"The equal protection clause, therefore, does not preclude classification of individuals who may
be accorded different treatment under the law as long as the classification is reasonable and not
arbitrary."22 "The mere fact that the legislative classification may result in actual inequality is not
violative of the right to equal protection, for every classification of persons or things for
regulation by law produces inequality in some degree, but the law is not thereby rendered
invalid."23
That is the situation here. In issuing the assailed policy, the JBC merely exercised its discretion
in accordance with the constitutional requirement and its rules that a member of the Judiciary
must be of proven competence, integrity, probity and independence.24"To ensure the fulfillment
of these standards in every member of the Judiciary, the JBC has been tasked to screen aspiring
judges and justices, among others, making certain that the nominees submitted to the President
are all qualified and suitably best for appointment. In this way, the appointing process itself is
shielded from the possibility of extending judicial appointment to the undeserving and mediocre
and, more importantly, to the ineligible or disqualified."25

Consideration of experience by JBC as one factor in choosing recommended appointees does not
constitute a violation of the equal protection clause. The JBC does not discriminate when it
employs number of years of service to screen and differentiate applicants from the competition.
The number of years of service provides a relevant basis to determine proven competence which
may be measured by experience, among other factors. The difference in treatment between lower
court judges who have served at least five years and those who have served less than five years,
on the other hand, was rationalized by JBC as follows:chanroblesvirtuallawlibrary
Formulating policies which streamline the selection process falls squarely under the purview of
the JBC. No other constitutional body is bestowed with the mandate and competency to set
criteria for applicants that refer to the more general categories of probity, integrity and
independence.

The assailed criterion or consideration for promotion to a second-level court, which is five years
experience as judge of a first-level court, is a direct adherence to the qualities prescribed by the
Constitution. Placing a premium on many years of judicial experience, the JBC is merely
applying one of the stringent constitutional standards requiring that a member of the judiciary be
of "proven competence." In determining competence, the JBC considers, among other
qualifications, experience and performance.

Based on the JBC's collective judgment, those who have been judges of first-level courts for five
(5) years are better qualified for promotion to second-level courts. It deems length of experience
as a judge as indicative of conversance with the law and court procedure. Five years is
considered as a sufficient span of time for one to acquire professional skills for the next level
court, declog the dockets, put in place improved procedures and an efficient case management
system, adjust to the work environment, and gain extensive experience in the judicial process.

A five-year stint in the Judiciary can also provide evidence of the integrity,

probity, and independence of judges seeking promotion. To merit JBC's nomination for their
promotion, they must have had a "record of, and reputation for, honesty, integrity,
incorruptibility, irreproachable conduct, and fidelity to sound moral and ethical standards."
Likewise, their decisions must be reflective of the soundness of their judgment, courage,
rectitude, cold neutrality and strength of character.

Hence, for the purpose of determining whether judges are worthy of promotion to the next level
court, it would be premature or difficult to assess their merit if they have had less than one year
of service on the bench.26 (Citations omitted and emphasis in the original)
At any rate, five years of service as a lower court judge is not the only factor that determines the
selection of candidates for RTC judge to be appointed by the President. Persons with this
qualification are neither automatically selected nor do they automatically become nominees. The
applicants are chosen based on an array of factors and are evaluated based on their individual
merits. Thus, it cannot be said that the questioned policy was arbitrary, capricious, or made
without any basis.

Clearly, the classification created by the challenged policy satisfies the rational basis test. The
foregoing shows that substantial distinctions do exist between lower court judges with five year
experience and those with less than five years of experience, like the petitioner, and the
classification enshrined in the assailed policy is reasonable and relevant to its legitimate purpose.
The Court, thus, rules that the questioned policy does not infringe on the equal protection clause
as it is based on reasonable classification intended to gauge the proven competence of the
applicants. Therefore, the said policy is valid and constitutional.

Due Process

The petitioner averred that the assailed policy violates procedural due process for lack of
publication and non-submission to the University of the Philippines Law Center Office of the
National Administrative Register (ONAR). The petitioner said that the assailed policy will affect
all applying judges, thus, the said policy should have been published.

Contrary to the petitioner's contention, the assailed JBC policy need not be filed in the ONAR
because the publication requirement in the ONAR is confined to issuances of administrative
agencies under the Executive branch of the government.27 Since the JBC is a body under the
supervision of the Supreme Court,28 it is not covered by the publication requirements of the
Administrative Code.

Nevertheless, the assailed JBC policy requiring five years of service as judges of first-level
courts before they can qualify as applicants to second-level courts should have been published.
As a general rule, publication is indispensable in order that all statutes, including administrative
rules that are intended to enforce or implement existing laws, attain binding force and effect.
There are, however, several exceptions to the requirement of publication, such as interpretative
regulations and those merely internal in nature, which regulate only the personnel of the
administrative agency and not the public. Neither is publication required of the so-called letters
of instructions issued by administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties.29
Here, the assailed JBC policy does not fall within the administrative rules and regulations
exempted from the publication requirement. The assailed policy involves a qualification standard
by which the JBC shall determine proven competence of an applicant. It is not an internal
regulation, because if it were, it would regulate and affect only the members of the JBC and their
staff. Notably, the selection process involves a call to lawyers who meet the qualifications in the
Constitution and are willing to serve in the Judiciary to apply to these vacant positions. Thus, it
is but a natural consequence thereof that potential applicants be informed of the requirements to
the judicial positions, so that they would be able to prepare for and comply with them.

The Court also noted the fact that in JBC-009, otherwise known as the Rules of the Judicial and
Bar Council, the JBC had put its criteria in writing and listed the guidelines in determining
competence, independence, integrity and probity. Section 1, Paragraph 1 of Rule 9 expressly
provides that applicants for the Court of Appeals and the Sandiganbayan, should, as a general
rule, have at least five years of experience as an RTC judge, thus:chanroblesvirtuallawlibrary
RULE 9 - SPECIAL GUIDELINES FOR NOMINATION TO A VACANCY IN THE COURT
OF APPEALS AND SANDIGANBAYAN

Section 1. Additional criteria for nomination to the Court of Appeals and the Sandiganbayan. -
In addition to the foregoing guidelines the Council should consider the following in evaluating
the merits of applicants for a vacancy in the Court of Appeals and Sandiganbayan:

1. As a general rule, he must have at least five years of experience as a judge of Regional Trial
Court, except when he has in his favor outstanding credentials, as evidenced by, inter alia,
impressive scholastic or educational record and performance in the Bar examinations, excellent
reputation for honesty, integrity, probity and independence of mind; at least very satisfactory
performance rating for three (3) years preceding the filing of his application for nomination; and
excellent potentials for appellate judgeship.

x x x x (Emphasis ours)
The express declaration of these guidelines in JBC-009, which have been duly published on the
website of the JBC and in a newspaper of general circulation suggests that the JBC is aware that
these are not mere internal rules, but are rules implementing the Constitution that should be
published. Thus, if the JBC were so-minded to add special guidelines for determining
competence of applicants for RTC judges, then it could and should have amended its rules and
published the same. This, the JBC did not do as JBC-009 and its amendatory rule do not have
special guidelines for applicants to the RTC.

Moreover, jurisprudence has held that rules implementing a statute should be published. Thus, by
analogy, publication is also required for the five-year requirement because it seeks to implement
a constitutional provision requiring proven competence from members of the judiciary.
Nonetheless, the JBC's failure to publish the assailed policy has not prejudiced the petitioner's
private interest. At the risk of being repetitive, the petitioner has no legal right to be included in
the list of nominees for judicial vacancies since the possession of the constitutional and statutory
qualifications for appointment to the Judiciary may not be used to legally demand that one's
name be included in the list of candidates for a judicial vacancy. One's inclusion in the shortlist is
strictly within the discretion of the JBC.30

As to the issue that the JBC failed or refused to implement the completion of the prejudicature
program as a requirement for appointment or promotion in the judiciary under R.A. No. 8557,
this ground of the petition, being unsubstantiated, was unfounded. Clearly, it cannot be said that
JBC unlawfully neglects the performance of a duty enjoined by law.

Finally, the petitioner argued but failed to establish that the assailed policy violates the
constitutional provision under social justice and human rights for equal opportunity of
employment. The OSG explained:chanroblesvirtuallawlibrary
[T]he questioned policy does not violate equality of employment opportunities. The
constitutional provision does not call for appointment to the Judiciary of all who might, for any
number of reasons, wish to apply. As with all professions, it is regulated by the State. The office
of a judge is no ordinary office. It is imbued with public interest and is central in the
administration of justice x x x. Applicants who meet the constitutional and legal qualifications
must vie and withstand the competition and rigorous screening and selection process. They must
submit themselves to the selection criteria, processes and discretion of respondent JBC, which
has the constitutional mandate of screening and selecting candidates whose names will be in the
list to be submitted to the President. So long as a fair opportunity is available for all applicants
who are evaluated on the basis of their individual merits and abilities, the questioned policy
cannot be struck down as unconstitutional.31 (Citations omitted)
From the foregoing, it is apparent that the petitioner has not established a clear legal right to
justify the issuance of a preliminary injunction. The petitioner has merely filed an application
with the JBC for the position of RTC judge, and he has no clear legal right to be nominated for
that office nor to be selected and included in the list to be submitted to the President which is
subject to the discretion of the JBC. The JBC has the power to determine who shall be
recommended to the judicial post. To be included in the list of applicants is a privilege as one
can only be chosen under existing criteria imposed by the JBC itself. As such, prospective
applicants, including the petitioner, cannot claim any demandable right to take part in it if they
fail to meet these criteria. Hence, in the absence of a clear legal right, the issuance of an
injunctive writ is not justified.

As the constitutional body granted with the power of searching for, screening, and selecting
applicants relative to recommending appointees to the Judiciary, the JBC has the authority to
determine how best to perform such constitutional mandate. Pursuant to this authority, the JBC
issues various policies setting forth the guidelines to be observed in the evaluation of applicants,
and formulates rules and guidelines in order to ensure that the rules are updated to respond to
existing circumstances. Its discretion is freed from legislative, executive or judicial intervention
to ensure that the JBC is shielded from any outside pressure and improper influence. Limiting
qualified applicants in this case to those judges with five years of experience was an exercise of
discretion by the JBC. The potential applicants, however, should have been informed of the
requirements to the judicial positions, so that they could properly prepare for and comply with
them. Hence, unless there are good and compelling reasons to do so, the Court will refrain from
interfering with the exercise of JBC's powers, and will respect the initiative and independence
inherent in the latter.cralawred

WHEREFORE, premises considered, the petition is DISMISSED. The Court,

however, DIRECTS that the Judicial and Bar Council comply with the publication requirement
of (1) the assailed policy requiring five years of experience as judges of first-level courts before
they can qualify as applicant to the Regional Trial Court, and (2) other special guidelines that the
Judicial and Bar Council is or will be implementing.

SO ORDERED.chanroblesvirtuallawlibrary

Sereno, C. J., no part.

Carpio, Velasco, Jr., Bersamin, Del Castillo, Perez, and Mendoza, JJ., concur.
Leonardo-De Castro, J., I concur and also join the concurring opinion of Justice Brion.
Brion, J., see concurring opinion.
Peralta, J., I join the opinion of J. Brion.
Villarama, Jr., J., on official leave.
Perlas-Bernabe, J., on leave.
Leonen, J., see separate concurring opinion.
Jardeleza, J., no part.

EN BANC

March 8, 2016

G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.

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

G.R. No. 221698-700

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ Respondents.

DECISION

PEREZ, J.:

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

The Facts

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

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

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

On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F927287 6 by the
Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed her
Philippine passport and respectively secured Philippine Passport Nos. L881511 and DD156616. 7

Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the
Philippines8 but she opted to continue her studies abroad and left for the United States of America (U.S.)
in 1988. Petitioner graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts where she
earned her Bachelor of Arts degree in Political Studies. 9

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

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

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

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

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

According to the petitioner, the untimely demise of her father was a severe blow to her entire family. In
her earnest desire to be with her grieving mother, the petitioner and her husband decided to move and
reside permanently in the Philippines sometime in the first quarter of 2005. 19 The couple began
preparing for their resettlement including notification of their children's schools that they will be
transferring to Philippine schools for the next semester; 20 coordination with property movers for the
relocation of their household goods, furniture and cars from the U.S. to the Philippines; 21 and inquiry
with Philippine authorities as to the proper procedure to be followed in bringing their pet dog into the
country.22 As early as 2004, the petitioner already quit her job in the U.S. 23

Finally, petitioner came home to the Philippines on 24 May 2005 24 and without delay, secured a Tax
Identification Number from the Bureau of Internal Revenue. Her three (3) children immediately
followed25 while her husband was forced to stay in the U.S. to complete pending projects as well as to
arrange the sale of their family home there. 26

The petitioner and her children briefly stayed at her mother's place until she and her husband purchased
a condominium unit with a parking slot at One Wilson Place Condominium in San Juan City in the second
half of 2005.27 The corresponding Condominium Certificates of Title covering the unit and parking slot
were issued by the Register of Deeds of San Juan City to petitioner and her husband on 20 February
2006.28 Meanwhile, her children of school age began attending Philippine private schools.

On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some of
the family's remaining household belongings. 29 She travelled back to the Philippines on 11 March 2006. 30

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

In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills, Quezon
City where they built their family home 34 and to this day, is where the couple and their children have
been residing.35 A Transfer Certificate of Title covering said property was issued in the couple's name by
the Register of Deeds of Quezon City on 1June 2006.

On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to
Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003. 36 Under the
same Act, she filed with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine
citizenship together with petitions for derivative citizenship on behalf of her three minor children on 10
July 2006.37 As can be gathered from its 18 July 2006 Order, the BI acted favorably on petitioner's
petitions and declared that she is deemed to have reacquired her Philippine citizenship while her
children are considered as citizens of the Philippines. 38 Consequently, the BI issued Identification
Certificates (ICs) in petitioner's name and in the names of her three (3) children. 39

Again, petitioner registered as a voter of Barangay  Santa Lucia, San Juan City on 31 August 2006. 40 She
also secured from the DFA a new Philippine Passport bearing the No. XX4731999. 41 This passport was
renewed on 18 March 2014 and she was issued Philippine Passport No. EC0588861 by the DFA. 42

On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie
and Television Review and Classification Board (MTRCB). 43 Before assuming her post, petitioner
executed an "Affidavit of Renunciation of Allegiance to the United States of America and Renunciation of
American Citizenship" before a notary public in Pasig City on 20 October 2010, 44 in satisfaction of the
legal requisites stated in Section 5 of R.A. No. 9225. 45 The following day, 21 October 2010 petitioner
submitted the said affidavit to the BI 46 and took her oath of office as Chairperson of the MTRCB. 47 From
then on, petitioner stopped using her American passport. 48

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

On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the
United States" effective 21 October 2010. 52

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

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

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

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

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

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

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

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

Petitioner seasonably filed her Answer wherein she countered that:

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

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

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

a. the 1934 Constitutional Convention deliberations show that foundlings were considered citizens;
b. foundlings are presumed under international law to have been born of citizens of the place where
they are found;

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

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

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

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

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

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

i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people to decide a
purely political question, that is, should she serve as the country's next leader. 68

After the parties submitted their respective Memoranda, the petition was deemed submitted for
resolution.

On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that petitioner's
COC, filed for the purpose of running for the President of the Republic of the Philippines in the 9 May
2016 National and Local Elections, contained material representations which are false. The fallo  of the
aforesaid Resolution reads:

WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course to or
Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy for
President of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed by
respondent Mary Grace Natividad Sonora Poe Llamanzares is hereby CANCELLED.69

Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the
COMELEC En Banc  resolved in its 23 December 2015 Resolution by denying the same. 70

Origin of Petition for Certiorari  in G.R. Nos. 221698-700

This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P.
Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC which were
consolidated and raffled to its First Division.

In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure, 71 docketed as
SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite residency and citizenship to qualify
her for the Presidency.72

Tatad theorized that since the Philippines adheres to the principle of jus sanguinis,  persons of unknown
parentage, particularly foundlings, cannot be considered natural-born Filipino citizens since blood
relationship is determinative of natural-born status. 73 Tatad invoked the rule of statutory construction
that what is not included is excluded. He averred that the fact that foundlings were not expressly
included in the categories of citizens in the 193 5 Constitution is indicative of the framers' intent to
exclude them.74 Therefore, the burden lies on petitioner to prove that she is a natural-born citizen. 75

Neither can petitioner seek refuge under international conventions or treaties to support her claim that
foundlings have a nationality.76 According to Tatad, international conventions and treaties are not self-
executory and that local legislations are necessary in order to give effect to treaty obligations assumed
by the Philippines.77 He also stressed that there is no standard state practice that automatically confers
natural-born status to foundlings.78

Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire
Philippine citizenship under R.A. No. 9225 because it only applies to former natural-born citizens and
petitioner was not as she was a foundling.79

Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10)
year residency requirement.80 Tatad opined that petitioner acquired her domicile in Quezon City only
from the time she renounced her American citizenship which was sometime in 2010 or
2011.81 Additionally, Tatad questioned petitioner's lack of intention to abandon her U.S. domicile as
evinced by the fact that her husband stayed thereat and her frequent trips to the U.S. 82

In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No. 15-
139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not bestow upon her the status of
a natural-born citizen.83 He advanced the view that former natural-born citizens who are repatriated
under the said Act reacquires only their Philippine citizenship and will not revert to their original status
as natural-born citizens.84

He further argued that petitioner's own admission in her COC for Senator that she had only been a
resident of the Philippines for at least six (6) years and six (6) months prior to the 13 May 2013 Elections
operates against her. Valdez rejected petitioner's claim that she could have validly reestablished her
domicile in the Philippines prior to her reacquisition of Philippine citizenship. In effect, his position was
that petitioner did not meet the ten (10) year residency requirement for President.

Unlike the previous COMELEC cases filed against petitioner, Contreras' petition, 85 docketed as SPA No.
15-007 (DC), limited the attack to the residency issue. He claimed that petitioner's 2015 COC for
President should be cancelled on the ground that she did not possess the ten-year period of residency
required for said candidacy and that she made false entry in her COC when she stated that she is a legal
resident of the Philippines for ten (10) years and eleven (11) months by 9 May 2016. 86 Contreras
contended that the reckoning period for computing petitioner's residency in the Philippines should be
from 18 July 2006, the date when her petition to reacquire Philippine citizenship was approved by the
BI.87 He asserted that petitioner's physical presence in the country before 18 July 2006 could not be valid
evidence of reacquisition of her Philippine domicile since she was then living here as an American citizen
and as such, she was governed by the Philippine immigration laws. 88

In her defense, petitioner raised the following arguments:

First,  Tatad's petition should be dismissed outright for failure to state a cause of action. His petition did
not invoke grounds proper for a disqualification case as enumerated under Sections 12 and 68 of the
Omnibus Election Code.89 Instead, Tatad completely relied on the alleged lack of residency and natural-
born status of petitioner which are not among the recognized grounds for the disqualification of a
candidate to an elective office.90

Second,  the petitions filed against her are basically petitions for quo warranto  as they focus on
establishing her ineligibility for the Presidency. 91 A petition for quo warranto  falls within the exclusive
jurisdiction of the Presidential Electoral Tribunal (PET) and not the COMELEC. 92

Third,  the burden to prove that she is not a natural-born Filipino citizen is on the
respondents.93 Otherwise stated, she has a presumption in her favor that she is a natural-born citizen of
this country.

Fourth,  customary international law dictates that foundlings are entitled to a nationality and are
presumed to be citizens of the country where they are found. 94 Consequently, the petitioner is
considered as a natural-born citizen of the Philippines. 95

Fifth,  she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No.
9225 or the right to reacquire her natural-born status. 96 Moreover, the official acts of the Philippine
Government enjoy the presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the BI
declaring her as natural-born citizen, her appointment as MTRCB Chair and the issuance of the decree of
adoption of San Juan RTC.97 She believed that all these acts reinforced her position that she is a natural-
born citizen of the Philippines.98

Sixth,  she maintained that as early as the first quarter of 2005, she started reestablishing her domicile of
choice in the Philippines as demonstrated by her children's resettlement and schooling in the country,
purchase of a condominium unit in San Juan City and the construction of their family home in Corinthian
Hills.99

Seventh,  she insisted that she could legally reestablish her domicile of choice in the Philippines even
before she renounced her American citizenship as long as the three determinants for a change of
domicile are complied with.100 She reasoned out that there was no requirement that renunciation of
foreign citizenship is a prerequisite for the acquisition of a new domicile of choice. 101

Eighth,  she reiterated that the period appearing in the residency portion of her COC for Senator was a
mistake made in good faith.102

In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled that petitioner is
not a natural-born citizen, that she failed to complete the ten (10) year residency requirement, and that
she committed material misrepresentation in her COC when she declared therein that she has been a
resident of the Philippines for a period of ten (10) years and eleven (11) months as of the day of the
elections on 9 May 2016. The COMELEC First Division concluded that she is not qualified for the elective
position of President of the Republic of the Philippines. The dispositive portion of said Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the

Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of the Philippines in connection
with the 9 May 2016 Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's
Resolution. On 23 December 2015, the COMELEC En Banc  issued a Resolution denying petitioner's
motion for reconsideration.

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions
for certiorari  with urgent prayer for the issuance of an ex parte  temporary restraining order/status quo
ante  order and/or writ of preliminary injunction. On 28 December 2015, temporary restraining orders
were issued by the Court enjoining the COMELEC and its representatives from implementing the assailed
COMELEC Resolutions until further orders from the Court. The Court also ordered the consolidation of
the two petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments
were held in these cases.

The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and SET
ASIDE the:

1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-001 (DC),
entitled Estrella  C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares.

2. Resolution dated 11 December 2015, rendered through its First Division, in the consolidated cases
SPA No. 15-002 (DC) entitled Francisco  S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent;  SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent;  and SPA No. 15-139 (DC) entitled Amado D. Valdez,
petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent.

3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1 December 2015
Resolution of the Second Division.

4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11 December 2015
Resolution of the First Division.

The procedure and the conclusions from which the questioned Resolutions emanated are tainted with
grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED CANDIDATE for
President in the 9 May 2016 National Elections.

The issue before the COMELEC is whether or not the COC of petitioner should be denied due course or
cancelled "on the exclusive ground" that she made in the certificate a false material representation. The
exclusivity of the ground should hedge in the discretion of the COMELEC and restrain it from going into
the issue of the qualifications of the candidate for the position, if, as in this case, such issue is yet
undecided or undetermined by the proper authority. The COMELEC cannot itself, in the same
cancellation case, decide the qualification or lack thereof of the candidate.

We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C, Section
2:

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

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal
and barangay offices shall be final, executory, and not appealable.

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

(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of
the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring
free, orderly, honest, peaceful, and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to
other requirements, must present their platform or program of government; and accredit citizens' arms
of the Commission on Elections. Religious denominations and sects shall not be registered. Those which
seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this
Constitution, or which are supported by any foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations,
coalitions, or candidates related to elections constitute interference in national affairs, and, when
accepted, shall be an additional ground for the cancellation of their registration with the Commission, in
addition to other penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of
voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts
or omissions constituting election frauds, offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending, including limitation
of places where propaganda materials shall be posted, and to prevent and penalize all forms of election
frauds, offenses, malpractices, and nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the
imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive,
order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall.

Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI,
Section 17 of the same basic law stating that:

The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the
sole judge of all contests relating to the election, returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices
of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of
the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the parties or organizations registered under
the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its
Chairman.

or of the last paragraph of Article VII, Section 4 which provides that:

The Supreme Court, sitting en banc,  shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.

The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-
President, Senators and the Members of the House of Representatives was made clear by the
Constitution. There is no such provision for candidates for these positions.

Can the COMELEC be such judge?

The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections,104 which

was affirmatively cited in the En Banc  decision in Fermin v. COMELEC105  is our guide. The citation
in Fermin  reads:

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the
COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25 § 1, the following:

Grounds for disqualification.  - Any candidate who does not possess all the qualifications of a candidate
as provided for by the Constitution or by existing law or who commits any act declared by law to be
grounds for disqualification may be disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere
rule. Such an act is equivalent to the creation of a cause of action which is a substantive matter which
the COMELEC, in the exercise of its rule-making power under Art. IX, A, §6 of the Constitution, cannot do
it. It is noteworthy that the Constitution withholds from the COMELEC even the power to decide cases
involving the right to vote, which essentially involves an inquiry into qualifications  based on age,
residence  and citizenship  of voters. [Art. IX, C, §2(3)]

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention of the law. For not only in their grounds but also in
their consequences are proceedings for "disqualification" different from those for a declaration of
"ineligibility.""Disqualification" proceedings, as already stated, are based on grounds specified in § 12
and §68 of the Omnibus Election Code and in §40 of the Local Government Code and are for the purpose
of barring an individual from becoming a candidate or from continuing as a candidate  for public office.
In a word, their purpose is to eliminate a candidate from the race  either from the start or during its
progress. "Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the
Constitution or the statutes for holding public office  and the purpose of the proceedings for declaration
of ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does not imply that he is
not disqualified from becoming a candidate or continuing as a candidate for a public office and vice
versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in §2 of the Law does not imply that he does not suffer from any of [the]
disqualifications provided in §4.

Before we get derailed by the distinction as to grounds and the consequences of the respective
proceedings, the importance of the opinion is in its statement that "the lack of provision for declaring
the ineligibility of candidates, however, cannot be supplied by a mere rule". Justice Mendoza lectured
in Romualdez-Marcos  that:

Three reasons may be cited to explain the absence of an authorized proceeding for determining before
election  the qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for
determining his eligibility for the office. In contrast, whether an individual should be disqualified as a
candidate for acts constituting election offenses (e.g.,  vote buying, over spending, commission of
prohibited acts) is a prejudicial question which should be determined lest he wins because of the very
acts for which his disqualification is being sought. That is why it is provided that if the grounds for
disqualification are established, a candidate will not be voted for; if he has been voted for, the votes in
his favor will not be counted; and if for some reason he has been voted for and he has won, either he
will not be proclaimed or his proclamation will be set aside.

Second is the fact that the determination of a candidates' eligibility, e.g.,  his citizenship or, as in this
case, his domicile, may take a long time to make, extending beyond the beginning of the term of the
office. This is amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence was still pending in the COMELEC even after
the elections of May 8, 1995. This is contrary to the summary character proceedings relating to
certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a ministerial
duty of the COMELEC and its officers.  The law is satisfied if candidates state in their certificates of
candidacy that they are eligible for the position which they seek to fill, leaving the determination of their
qualifications to be made after the election and only in the event they are elected. Only in cases
involving charges of false representations made in certificates of candidacy is the COMELEC given
jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for President,
Vice President, Senators and members of the House of Representatives. (R.A. No. 7166, § 15) The
purpose is to preserve the prerogatives of the House of Representatives Electoral Tribunal and the other
Tribunals as "sole judges" under the Constitution of the election, returns  and qualifications  of members
of Congress of the President and Vice President, as the case may be. 106

To be sure, the authoritativeness of the Romualdez  pronouncements as reiterated in Fermin,  led to the

amendment through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15
February1993 version of Rule 25, which states that:

Grounds for disqualification.  -Any candidate who does not possess all the qualifications of a candidate as
provided for by the Constitution or by existing law or who commits any act declared by law to be
grounds for disqualification may be disqualified from continuing as a candidate. 107

was in the 2012 rendition, drastically changed to:

Grounds.  - Any candidate who, in action or protest in which he is a party, is declared by final decision of
a competent court, guilty of, or found by the Commission to be suffering from any disqualification
provided by law or the Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of
Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a combination thereof, shall be
summarily dismissed.

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized
proceeding for determining before election  the qualifications of candidate. Such that, as presently
required, to disqualify a candidate there must be a declaration by a final judgment of a competent court
that the candidate sought to be disqualified "is guilty of or found by the Commission to be suffering
from any disqualification provided by law or the Constitution."

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to the
other. Both do not allow,  are not authorizations, are not vestment of jurisdiction, for the COMELEC to
determine the qualification of a candidate. The facts of qualification must beforehand be established in
a prior proceeding before an authority properly vested with jurisdiction. The prior determination of
qualification may be by statute, by executive order or by a judgment of a competent court or tribunal.

If a candidate cannot be disqualified without a prior finding that he or she is suffering from a
disqualification "provided by law or the Constitution," neither can the certificate of candidacy be
cancelled or denied due course on grounds of false representations regarding his or her qualifications,
without a prior authoritative finding that he or she is not qualified, such prior authority being the
necessary measure by which the falsity of the representation can be found. The only exception that can
be conceded are self-evident facts of unquestioned or unquestionable veracity and judicial confessions.
Such are, anyway, bases equivalent to prior decisions against which the falsity of representation can be
determined.

The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals with,
as in this case, alleged false representations regarding the candidate's citizenship and residence, forced
the COMELEC to rule essentially that since foundlings 108 are not mentioned in the enumeration of
citizens under the 1935 Constitution,109 they then cannot be citizens. As the COMELEC stated in oral
arguments, when petitioner admitted that she is a foundling, she said it all. This borders on bigotry.
Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot rule that herein petitioner
possesses blood relationship with a Filipino citizen when "it is certain that such relationship is
indemonstrable," proceeded to say that "she now has the burden to present evidence to prove her
natural filiation with a Filipino parent."

The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.

At the outset, it must be noted that presumptions regarding paternity is neither unknown nor
unaccepted in Philippine Law. The Family Code of the Philippines has a whole chapter on Paternity and
Filiation.110 That said, there is more than sufficient evider1ce that petitioner has Filipino parents and is
therefore a natural-born Filipino. Parenthetically, the burden of proof was on private respondents to
show that petitioner is not a Filipino citizen. The private respondents should have shown that both of
petitioner's parents were aliens. Her admission that she is a foundling did not shift the burden to her
because such status did not exclude the possibility that her parents were Filipinos, especially as in this
case where there is a high probability, if not certainty, that her parents are Filipinos.

The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether
such parents are Filipinos. Under Section 4, Rule 128:

Sect. 4. Relevancy, collateral matters  - Evidence must have such a relation to the fact in issue as to
induce belief in its existence or no-existence. Evidence on collateral matters shall not be allowed, except
when it tends in any reasonable degree to establish the probability of improbability of the fact in issue.

The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA) 111 that from
1965 to 1975, the total number of foreigners born in the Philippines was 15,986 while the total number
of Filipinos born in the country was 10,558,278. The statistical probability that any child born in the
Philippines in that decade is natural-born Filipino was 99.83%. For her part, petitioner presented census
statistics for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there were 962,532 Filipinos
and 4,734 foreigners in the province; 99.62% of the population were Filipinos. In 1970, the figures were
1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures for the child producing
ages (15-49). In 1960, there were 230,528 female Filipinos as against 730 female foreigners
or 99.68%. In the same year, there were 210,349 Filipino males and 886 male aliens, or 99.58%. In 1970,
there were 270,299 Filipino females versus 1, 190 female aliens, or 99.56%. That same year, there were
245,740 Filipino males as against only 1,165 male aliens or 99.53%. COMELEC did not dispute these
figures. Notably, Commissioner Arthur Lim admitted, during the oral arguments, that at the time
petitioner was found in 1968, the majority of the population in Iloilo was Filipino. 112

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was
abandoned as an infant in a Roman Catholic Church in Iloilo City.1âwphi1 She also has typical Filipino
features: height, flat nasal bridge, straight black hair, almond shaped eyes and an oval face.

There is a disputable presumption that things have happened according to the ordinary course of nature
and the ordinary habits of life.113 All of the foregoing evidence, that a person with typical Filipino
features is abandoned in Catholic Church in a municipality where the population of the Philippines is
overwhelmingly Filipinos such that there would be more than a 99% chance that a child born in the
province would be a Filipino, would indicate more than ample probability if not statistical certainty, that
petitioner's parents are Filipinos. That probability and the evidence on which it is based are admissible
under Rule 128, Section 4 of the Revised Rules on Evidence.

To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words of
the Solicitor General:

Second. It is contrary to common sense because foreigners do not come to the Philippines so they can
get pregnant and leave their newborn babies behind. We do not face a situation where the probability is
such that every foundling would have a 50% chance of being a Filipino and a 50% chance of being a
foreigner. We need to frame our questions properly. What are the chances that the parents of anyone
born in the Philippines would be foreigners? Almost zero. What are the chances that the parents of
anyone born in the Philippines would be Filipinos? 99.9%.

According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were
1,766,046 children born in the Philippines to Filipino parents, as opposed to 1,301 children in the
Philippines of foreign parents. Thus, for that sample period, the ratio of non-Filipino children to natural
born Filipino children is 1:1357. This means that the statistical probability that any child born in the
Philippines would be a natural born Filipino is 99.93%.

From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total
number of Filipinos born in the Philippines is 15,558,278. For this period, the ratio of non-Filipino
children is 1:661. This means that the statistical probability that any child born in the Philippines on that
decade would be a natural born Filipino is 99.83%.

We can invite statisticians and social anthropologists to crunch the numbers for us, but I am confident
that the statistical probability that a child born in the Philippines would be a natural born Filipino will not
be affected by whether or not the parents are known. If at all, the likelihood that a foundling would have
a Filipino parent might even be higher than 99.9%. Filipinos abandon their children out of poverty or
perhaps, shame. We do not imagine foreigners abandoning their children here in the Philippines
thinking those infants would have better economic opportunities or believing that this country is a
tropical paradise suitable for raising abandoned children. I certainly doubt whether a foreign couple has
ever considered their child excess baggage that is best left behind.

To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a
theoretical chance that one among the thousands of these foundlings might be the child of not just one,
but two, foreigners is downright discriminatory, irrational, and unjust. It just doesn't make any sense.
Given the statistical certainty - 99.9% - that any child born in the Philippines would be a natural born
citizen, a decision denying foundlings such status is effectively a denial of their birthright. There is no
reason why this Honorable Court should use an improbable hypothetical to sacrifice the fundamental
political rights of an entire class of human beings. Your Honor, constitutional interpretation and the use
of common sense are not separate disciplines.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's
enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude
foundlings either. Because of silence and ambiguity in the enumeration with respect to foundlings, there
is a need to examine the intent of the framers. In Nitafan v. Commissioner of Internal Revenue, 114 this
Court held that:

The ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should be
given effect. The primary task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of the Constitution. It may
also be safely assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.115

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 Constitutional
Convention show that the framers intended foundlings to be covered by the enumeration. The following
exchange is recorded:

Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The natural
children of a foreign father and a Filipino mother not recognized by the father.

xxxx
President:
[We] would like to request a clarification from the proponent of the amendment. The gentleman refers
to natural children or to any kind of illegitimate children?

Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage,  natural or
illegitimate children of unknown parents.

Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino, that
is, I refer to the Spanish Code wherein all children of unknown parentage born in Spanish territory are
considered Spaniards, because the presumption is that a child of unknown parentage is the son of a
Spaniard. This may be applied in the Philippines in that a child of unknown parentage born in the
Philippines is deemed to be Filipino, and there is no need ...

Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.

Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.

Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of
unknown parentage."

Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not unknown.

President:
Does the gentleman accept the amendment or not?

Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a Filipina with a
foreigner who does not recognize the child. Their parentage is not unknown and I think those of
overseas Filipino mother and father [whom the latter] does not recognize, should also be considered as
Filipinos.

President:
The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr.
Briones.

Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?

Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the constitution
need [not] refer to them.  By international law the principle that children or people born in a country of
unknown parents are citizens in this nation is recognized, and it is not necessary to include a provision on
the subject exhaustively.116

Though the Rafols amendment was not carried out, it was not because there was any objection to the
notion that persons of "unknown parentage" are not citizens but only because their number was not
enough to merit specific mention. Such was the account, 117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:

During the debates on this provision, Delegate Rafols presented an amendment to include as Filipino
citizens the illegitimate children with a foreign father of a mother who was a citizen of the Philippines,
and also foundlings; but this amendment was defeated primarily because the Convention believed that
the cases, being too few to warrant the inclusion of a provision in the Constitution to apply to them,
should be governed by statutory legislation. Moreover, it was believed that the rules of international law
were already clear to the effect that illegitimate children followed the citizenship of the mother, and
that foundlings followed the nationality of the place where they were found, thereby making
unnecessary the inclusion in the Constitution of the proposed amendment.

This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral
Arguments:

We all know that the Rafols proposal was rejected. But note that what was declined was the proposal
for a textual and explicit recognition of foundlings as Filipinos. And so, the way to explain the
constitutional silence is by saying that it was the view of Montinola and Roxas which prevailed that there
is no more need to expressly declare foundlings as Filipinos.

Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a
constitution can constitutionalize rules based on assumptions that are imperfect or even wrong. They
can even overturn existing rules. This is basic. What matters here is that Montinola and Roxas were able
to convince their colleagues in the convention that there is no more need to expressly declare
foundlings as Filipinos because they are already impliedly so recognized.

In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the
avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos under
Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is carried over into the 1973 and 1987
Constitution. It is appropriate to invoke a famous scholar as he was paraphrased by Chief Justice
Fernando: the constitution is not silently silent, it is silently vocal. 118

The Solicitor General makes the further point that the framers "worked to create a just and humane
society," that "they were reasonable patriots and that it would be unfair to impute upon them a
discriminatory intent against foundlings." He exhorts that, given the grave implications of the argument
that foundlings are not natural-born Filipinos, the Court must search the records of the 1935, 1973 and
1987 Constitutions "for an express intention to deny foundlings the status of Filipinos. The burden is on
those who wish to use the constitution to discriminate against foundlings to show that the constitution
really intended to take this path to the dark side and inflict this across the board marginalization."

We find no such intent or language permitting discrimination against foundlings. On the contrary, all
three Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to
render social justice. Of special consideration are several provisions in the present charter: Article II,
Section 11 which provides that the "State values the dignity of every human person and guarantees full
respect for human rights," Article XIII, Section 1 which mandates Congress to "give highest priority to the
enactment of measures that protect and enhance the right of all the people to human dignity, reduce
social, economic, and political inequalities x x x" and Article XV, Section 3 which requires the State to
defend the "right of children to assistance, including proper care and nutrition, and special protection
from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their
development." Certainly, these provisions contradict an intent to discriminate against foundlings on
account of their unfortunate status.

Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not
provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in
the first place to be adopted. The most basic of such laws is Article 15 of the Civil Code which provides
that "[l]aws relating to family rights, duties, status, conditions, legal capacity of persons are binding on
citizens of the Philippines even though living abroad." Adoption deals with status, and a Philippine
adoption court will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic,119 a child
left by an unidentified mother was sought to be adopted by aliens. This Court said:

In this connection, it should be noted that this is a proceedings in rem,  which no court may entertain
unless it has jurisdiction, not only over the subject matter of the case and over the parties, but also over
the res,  which is the personal status of Baby Rose as well as that of petitioners herein. Our Civil Code
(Art. 15) adheres to the theory that jurisdiction over the status of a natural person is determined by the
latter's nationality. Pursuant to this theory, we have jurisdiction over the status of Baby Rose, she being
a citizen of the Philippines, but not over the status of the petitioners, who are foreigners. 120 (Underlining
supplied)

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the
Inter-Country Adoption of Filipino Children and For Other Purposes" (otherwise known as the "Inter-
Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies on
the Adoption of Filipino Children and For Other Purposes" (otherwise known as the Domestic Adoption
Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all expressly refer to
"Filipino children" and include foundlings as among Filipino children who may be adopted.

It has been argued that the process to determine that the child is a foundling leading to the issuance of a
foundling certificate under these laws and the issuance of said certificate are acts to acquire or perfect
Philippine citizenship which make the foundling a naturalized Filipino at best. This is erroneous. Under
Article IV, Section 2 "Natural-born citizens are those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their Philippine citizenship." In the first place,
"having to perform an act" means that the act must be personally done by the citizen. In this instance,
the determination of foundling status is done not by the child but by the authorities. 121 Secondly, the
object of the process is the determination of the whereabouts of the parents, not the citizenship of the
child. Lastly, the process is certainly not analogous to naturalization proceedings to acquire Philippine
citizenship, or the election of such citizenship by one born of an alien father and a Filipino mother under
the 1935 Constitution, which is an act to perfect it.

In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as
evidenced by a Foundling Certificate issued in her favor. 122 The Decree of Adoption issued on 13 May
1974, which approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly
refers to Emiliano and his wife, Rosario Militar, as her "foundling parents," hence effectively affirming
petitioner's status as a foundling.123

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international
law can become part of the sphere of domestic law either by transformation or incorporation. The
transformation method requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. 124 On the other hand, generally accepted principles of
international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations. Generally accepted principles of international
law include international custom as evidence of a general practice accepted as law, and general
principles of law recognized by civilized nations. 125 International customary rules are accepted as binding
as a result from the combination of two elements: the established, widespread, and consistent practice
on the part of States; and a psychological element known as the opinionjuris sive necessitates  (opinion
as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it. 126 "General principles of law recognized by
civilized nations" are principles "established by a process of reasoning" or judicial logic, based on
principles which are "basic to legal systems generally," 127 such as "general principles of equity, i.e.,  the
general principles of fairness and justice," and the "general principle against discrimination" which is
embodied in the "Universal Declaration of Human Rights, the International Covenant on Economic,
Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention Against Discrimination in Education, the Convention (No. 111)
Concerning Discrimination in Respect of Employment and Occupation." 128 These are the same core
principles which underlie the Philippine Constitution itself, as embodied in the due process and equal
protection clauses of the Bill of Rights. 129

Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the
generally accepted principles of international law and binding on the State. 130 Article 15 thereof states:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of the
UNCRC imposes the following obligations on our country:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the
right to acquire a nationality and as far as possible, the right to know and be cared for by his or her
parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law
and their obligations under the relevant international instruments in this field, in particular where the
child would otherwise be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR).
Article 24 thereof provide for the right of every child "to acquire a nationality:"
Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national
or social origin, property or birth, the right, to such measures of protection as are required by his status
as a minor, on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant nationality
from birth and ensure that no child is stateless. This grant of nationality must be at the time of birth, and
it cannot be accomplished by the application of our present naturalization laws, Commonwealth Act No.
473, as amended, and R.A. No. 9139, both of which require the applicant to be at least eighteen (18)
years old.

The principles found in two conventions, while yet unratified by the Philippines, are generally accepted
principles of international law. The first is Article 14 of the 1930 Hague Convention on Certain Questions
Relating to the Conflict of Nationality Laws under which a foundling is presumed to have the "nationality
of the country of birth," to wit:

Article 14

A child whose parents are both unknown shall have the nationality of the country of birth. If the child's
parentage is established, its nationality shall be determined by the rules applicable in cases where the
parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in
which it was found. (Underlining supplied)

The second is the principle that a foundling is presumed born of citizens  of the country where he is
found, contained in Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness:

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be
considered to have been born within the territory of parents possessing the nationality of that State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the
Reduction of Statelessness does not mean that their principles are not binding. While the Philippines is
not a party to the 1930 Hague Convention, it is a signatory to the Universal Declaration on Human
Rights, Article 15(1) ofwhich131 effectively affirms Article 14 of the 1930 Hague Convention. Article 2 of
the 1961 "United Nations Convention on the Reduction of Statelessness" merely "gives effect" to Article
15(1) of the UDHR.132 In Razon v. Tagitis,  133 this Court noted that the Philippines had not signed or
ratified the "International Convention for the Protection of All Persons from Enforced Disappearance."
Yet, we ruled that the proscription against enforced disappearances in the said convention was
nonetheless binding as a "generally accepted principle of international law." Razon v. Tagitis  is likewise
notable for declaring the ban as a generally accepted principle of international law although the
convention had been ratified by only sixteen states and had not even come into force and which needed
the ratification of a minimum of twenty states. Additionally, as petitioner points out, the Court was
content with the practice of international and regional state organs, regional state practice in Latin
America, and State Practice in the United States.

Another case where the number of ratifying countries was not determinative is Mijares v.
Ranada,  134 where only four countries had "either ratified or acceded to" 135 the 1966 "Convention on the
Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters" when the case was
decided in 2005. The Court also pointed out that that nine member countries of the European Common
Market had acceded to the Judgments Convention. The Court also cited U.S. laws and jurisprudence on
recognition of foreign judgments. In all, only the practices of fourteen countries were considered and
yet, there was pronouncement that recognition of foreign judgments was widespread practice.

Our approach in Razon  and Mijares  effectively takes into account the fact that "generally accepted
principles of international law" are based not only on international custom, but also on "general
principles of law recognized by civilized nations," as the phrase is understood in Article 38.1 paragraph
(c) of the ICJ Statute. Justice, fairness, equity and the policy against discrimination, which are
fundamental principles underlying the Bill of Rights and which are "basic to legal systems
generally,"136 support the notion that the right against enforced disappearances and the recognition of
foreign judgments, were correctly considered as "generally accepted principles of international law"
under the incorporation clause.

Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America, and Europe
have passed legislation recognizing foundlings as its citizen. Forty-two (42) of those countries follow
the jus sanguinis  regime. Of the sixty, only thirty-three (33) are parties to the 1961 Convention on
Statelessness; twenty-six (26) are not signatories to the Convention. Also, the Chief Justice, at the 2
February 2016 Oral Arguments pointed out that in 166 out of 189 countries surveyed (or 87.83%),
foundlings are recognized as citizens. These circumstances, including the practice of jus
sanguinis  countries, show that it is a generally accepted principle of international law to presume
foundlings as having been born of nationals of the country in which the foundling is found.

Current legislation reveals the adherence of the Philippines to this generally accepted principle of
international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption,
expressly refer to "Filipino children." In all of them, foundlings are among the Filipino children who could
be adopted. Likewise, it has been pointed that the DFA issues passports to foundlings. Passports are by
law, issued only to citizens. This shows that even the executive department, acting through the DFA,
considers foundlings as Philippine citizens.

Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on
Statelessness is rational and reasonable and consistent with the jus sanguinis  regime in our
Constitution. The presumption of natural-born citizenship of foundlings stems from the presumption
that their parents are nationals of the Philippines. As the empirical data provided by the PSA show, that
presumption is at more than 99% and is a virtual certainty.

In sum, all of the international law conventions and instruments on the matter of nationality of
foundlings were designed to address the plight of a defenseless class which suffers from a misfortune
not of their own making. We cannot be restrictive as to their application if we are a country which calls
itself civilized and a member of the community of nations. The Solicitor General's warning in his opening
statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court that those treaties and
conventions were drafted because the world community is concerned that the situation of foundlings
renders them legally invisible. It would be tragically ironic if this Honorable Court ended up using the
international instruments which seek to protect and uplift foundlings a tool to deny them political status
or to accord them second-class citizenship.138

The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions of R.A. No.
9225 did not result in the reacquisition of natural-born citizenship. The COMELEC reasoned that since
the applicant must perform an act, what is reacquired is not "natural-born" citizenship but only plain
"Philippine citizenship."

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation
statutes in general and of R.A. No. 9225 in particular.

In the seminal case of Bengson Ill v. HRET,  140 repatriation was explained as follows:

Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized
Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the
other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be
restored to his former status as a natural-born Filipino.

R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They
include Sobejana-Condon v. COMELEC141  where we described it as an "abbreviated repatriation process
that restores  one's Filipino citizenship x x x." Also included is Parreno v. Commission on Audit,142 which
cited Tabasa v. Court of Appeals,143 where we said that "[t]he repatriation of the former Filipino will
allow him to recover his natural-born citizenship. Parreno v. Commission on Audit144  is categorical that
"if petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will ... recover his natural-
born  citizenship."

The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that
natural-born citizenship must begin at birth and remain uninterrupted and continuous from birth." R.A.
No. 9225 was obviously passed in line with Congress' sole prerogative to determine how citizenship may
be lost or reacquired. Congress saw it fit to decree that natural-born citizenship may be reacquired even
if it had been once lost. It is not for the COMELEC to disagree with the Congress' determination.

More importantly, COMELEC's position that natural-born status must be continuous was already
rejected in Bengson III v. HRET145  where the phrase "from birth" was clarified to mean at the time of
birth: "A person who at the time of his birth, is a citizen of a particular country, is a natural-born citizen
thereof." Neither is "repatriation" an act to "acquire or perfect" one's citizenship. In Bengson III v.
HRET,  this Court pointed out that there are only two types of citizens under the 1987 Constitution:
natural-born citizen and naturalized, and that there is no third category for repatriated citizens:

It is apparent from the enumeration of who are citizens under the present Constitution that there are
only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in
accordance with law. A citizen who is not a naturalized Filipino, ie., did not have to undergo the process
of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino. Noteworthy is the
absence in said enumeration of a separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-
born or naturalized depending on the reasons for the loss of their citizenship and the mode prescribed
by the applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go
through naturalization proceedings in order to reacquire his citizenship, he is perforce a natural-born
Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House of
Representatives.146

The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may
always revisit a doctrine, a new rule reversing standing doctrine cannot be retroactively applied.
In Morales v. Court of Appeals and Jejomar Erwin  S. Binay, Jr.,147 where we decreed reversed the
condonation doctrine, we cautioned that it "should be prospective in application for the reason that
judicial decisions applying or interpreting the laws of the Constitution, until reversed, shall form part of
the legal system of the Philippines." This Court also said that "while the future may ultimately uncover a
doctrine's error, it should be, as a general rule, recognized as good law prior to its abandonment.
Consequently, the people's reliance thereupon should be respected." 148

Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood
when she put in the spaces for "born to" in her application for repatriation under R.A. No. 9225 the
names of her adoptive parents, and this misled the BI to presume that she was a natural-born Filipino. It
has been contended that the data required were the names of her biological parents which are precisely
unknown.

This position disregards one important fact - petitioner was legally adopted. One of the effects of
adoption is "to sever all legal ties between the biological parents and the adoptee, except when the
biological parent is the spouse of the adoptee." 149 Under R.A. No. 8552, petitioner was also entitled to an
amended birth certificate "attesting to the fact that the adoptee is the child of the adopter(s)" and
which certificate "shall not bear any notation that it is an amended issue." 150 That law also requires that
"[a]ll records, books, and papers relating to the adoption cases in the files of the court, the Department
[of Social Welfare and Development], or any other agency or institution participating in the adoption
proceedings shall be kept strictly confidential." 151 The law therefore allows petitioner to state that her
adoptive parents were her birth parents as that was what would be stated in her birth certificate
anyway. And given the policy of strict confidentiality of adoption records, petitioner was not obligated to
disclose that she was an adoptee.

Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same case
for cancellation of COC, it resorted to opinionatedness which is, moreover, erroneous.  The whole
process undertaken by COMELEC is wrapped in grave abuse of discretion.

On Residence

The tainted process was repeated in disposing of the issue of whether or not petitioner committed false
material representation when she stated in her COC that she has before and until 9 May 2016 been a
resident of the Philippines for ten (10) years and eleven (11) months.

Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the
day before the 2016 elections,  is true.

The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines
before the day of the elections. Since the forthcoming elections will be held on 9 May 2016, petitioner
must have been a resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer to the
requested information of "Period of Residence in the Philippines up to the day before May 09, 2016,"
she put in "10 years 11 months" which according to her pleadings in these cases corresponds to a
beginning date of 25 May 2005 when she returned for good from the U.S.

When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines.
There are three requisites to acquire a new domicile: 1. Residence or bodily presence in a new locality;
2. an intention to remain there; and 3. an intention to abandon the old domicile. 152 To successfully effect
a change of domicile, one must demonstrate an actual removal or an actual change of domicile; a bona
fide  intention of abandoning the former place of residence and establishing a new one and definite acts
which correspond with the purpose. In other words, there must basically be animus manendi  coupled
with animus non revertendi.  The purpose to remain in or at the domicile of choice must be for an
indefinite period of time; the change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual. 153

Petitioner presented voluminous evidence showing that she and her family abandoned their U.S.
domicile and relocated to the Philippines for good. These evidence include petitioner's former U.S.
passport showing her arrival on 24 May 2005 and her return to the Philippines every time she travelled
abroad; e-mail correspondences starting in March 2005 to September 2006 with a freight company to
arrange for the shipment of their household items weighing about 28,000 pounds to the Philippines; e-
mail with the Philippine Bureau of Animal Industry inquiring how to ship their dog to the Philippines;
school records of her children showing enrollment in Philippine schools starting June 2005 and for
succeeding years; tax identification card for petitioner issued on July 2005; titles for condominium and
parking slot issued in February 2006 and their corresponding tax declarations issued in April 2006;
receipts dated 23 February 2005 from the Salvation Army in the U.S. acknowledging donation of items
from petitioner's family; March 2006 e-mail to the U.S. Postal Service confirming request for change of
address; final statement from the First American Title Insurance Company showing sale of their U.S.
home on 27 April 2006; 12 July 2011 filled-up questionnaire submitted to the U.S. Embassy where
petitioner indicated that she had been a Philippine resident since May 2005; affidavit from Jesusa
Sonora Poe (attesting to the return of petitioner on 24 May 2005 and that she and her family stayed
with affiant until the condominium was purchased); and Affidavit from petitioner's husband (confirming
that the spouses jointly decided to relocate to the Philippines in 2005 and that he stayed behind in the
U.S. only to finish some work and to sell the family home).

The foregoing evidence were undisputed and the facts were even listed by the COMELEC, particularly in
its Resolution in the Tatad, Contreras and Valdez cases.

However, the COMELEC refused to consider that petitioner's domicile had been timely changed as of 24
May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim conceded the presence of the
first two requisites, namely, physical presence and animus manendi,  but maintained there was
no animus non-revertendi.154 The COMELEC disregarded the import of all the evidence presented by
petitioner on the basis of the position that the earliest date that petitioner could have started residence
in the Philippines was in July 2006 when her application under R.A. No. 9225 was approved by the BI. In
this regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon v. COMELEC156  and Caballero v.
COMELEC.  157 During the oral arguments, the private respondents also added Reyes v.
COMELEC.158  Respondents contend that these cases decree that the stay of an alien former Filipino
cannot be counted until he/she obtains a permanent resident visa or reacquires Philippine citizenship, a
visa-free entry under a balikbayan  stamp being insufficient. Since petitioner was still an American
(without any resident visa) until her reacquisition of citizenship under R.A. No. 9225, her stay from 24
May 2005 to 7 July 2006 cannot be counted.

But as the petitioner pointed out, the facts in these four cases are very different from her situation.
In Coquilla v. COMELEC,159 the only evidence presented was a community tax certificate secured by the
candidate and his declaration that he would be running in the elections. Japzon v. COMELEC160  did not
involve a candidate who wanted to count residence prior to his reacquisition of Philippine citizenship.
With the Court decreeing that residence is distinct from citizenship, the issue there was whether the
candidate's acts after reacquisition sufficed to establish residence. In Caballero v. COMELEC,  161 the
candidate admitted that his place of work was abroad and that he only visited during his frequent
vacations. In Reyes v. COMELEC,162 the candidate was found to be an American citizen who had not even
reacquired Philippine citizenship under R.A. No. 9225 or had renounced her U.S. citizenship. She was
disqualified on the citizenship issue. On residence, the only proof she offered was a seven-month stint as
provincial officer. The COMELEC, quoted with approval by this Court, said that "such fact alone is not
sufficient to prove her one-year residency."

It is obvious that because of the sparse evidence on residence in the four cases cited by the
respondents, the Court had no choice but to hold that residence could be counted only from acquisition
of a permanent resident visa or from reacquisition of Philippine citizenship. In contrast, the evidence of
petitioner is overwhelming and taken together leads to no other conclusion that she decided to
permanently abandon her U.S. residence (selling the house, taking the children from U.S. schools,
getting quotes from the freight company, notifying the U.S. Post Office of the abandonment of their
address in the U.S., donating excess items to the Salvation Army, her husband resigning from U.S.
employment right after selling the U.S. house) and permanently relocate to the Philippines and actually
re-established her residence here on 24 May 2005 (securing T.I.N, enrolling her children in Philippine
schools, buying property here, constructing a residence here, returning to the Philippines after all trips
abroad, her husband getting employed here). Indeed, coupled with her eventual application to reacquire
Philippine citizenship and her family's actual continuous stay in the Philippines over the years, it is clear
that when petitioner returned on 24 May 2005 it was for good.

In this connection, the COMELEC also took it against petitioner that she had entered the Philippines visa-
free as a balikbayan.  A closer look at R.A. No. 6768 as amended, otherwise known as the "An Act
Instituting a Balikbayan Program," shows that there is no overriding intent to treat balikbayans  as
temporary visitors who must leave after one year. Included in the law is a former Filipino who has been
naturalized abroad and "comes or returns to the Philippines." 163 The law institutes
a balikbayan  program "providing the opportunity to avail of the necessary training to enable
the balikbayan  to become economically self-reliant members of society upon their return to the
country"164 in line with the government's "reintegration program." 165 Obviously, balikbayans  are not
ordinary transients.

Given the law's express policy to facilitate the return of a balikbayan  and help him reintegrate into
society, it would be an unduly harsh conclusion to say in absolute terms that the balikbayan  must leave
after one year. That visa-free period is obviously granted him to allow him to re-establish his life and
reintegrate himself into the community before he attends to the necessary formal and legal
requirements of repatriation. And that is exactly what petitioner did - she reestablished life here by
enrolling her children and buying property while awaiting the return of her husband and then applying
for repatriation shortly thereafter.

No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive
and overwhelming, has as yet been decided by the Court. Petitioner's evidence of residence is
unprecedented. There is no judicial precedent that comes close to the facts of residence of petitioner.
There is no indication in Coquilla v. COMELEC,166 and the other cases cited by the respondents that the
Court intended to have its rulings there apply to a situation where the facts are different. Surely, the
issue of residence has been decided particularly on the facts-of-the case basis.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC
ruled that petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May 2016 in her
2015 COC was false because she put six ( 6) years and six ( 6) months as "period of residence before May
13, 2013" in her 2012 COC for Senator. Thus, according to the COMELEC, she started being a Philippine
resident only in November 2006. In doing so, the COMELEC automatically assumed as true the
statement in the 2012 COC and the 2015 COC as false.

As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013
COC as the period of residence as of the day she submitted that COC in 2012. She said that she reckoned
residency from April-May 2006 which was the period when the U.S. house was sold and her husband
returned to the Philippines. In that regard, she was advised by her lawyers in 2015 that residence could
be counted from 25 May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May
2013) as inquiring about residence as of the time she submitted the COC, is bolstered by the change
which the COMELEC itself introduced in the 2015 COC which is now "period of residence in the
Philippines up to the day before May 09, 2016." The COMELEC would not have revised the query if it did
not acknowledge that the first version was vague.

That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house and
the return of her husband is plausible given the evidence that she had returned a year before. Such
evidence, to repeat, would include her passport and the school records of her children.

It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive
admission against petitioner. It could be given in evidence against her, yes, but it was by no means
conclusive. There is precedent after all where a candidate's mistake as to period of residence made in a
COC was overcome by evidence.  In Romualdez-Marcos v. COMELEC, 167 the candidate mistakenly put
seven (7) months as her period of residence where the required period was a minimum of one year. We
said that "[i]t is the fact of residence, not a statement in a certificate of candidacy which ought to be
decisive in determining whether or not an individual has satisfied the constitutions residency
qualification requirement."  The COMELEC ought to have looked at the evidence presented and see if
petitioner was telling the truth that she was in the Philippines from 24 May 2005. Had the COMELEC
done its duty, it would have seen that the 2012 COC and the 2015 COC both  correctly stated
the pertinent  period of residency.
The COMELEC, by its own admission, disregarded the evidence that petitioner actually and physically
returned here on 24 May 2005 not because it was false, but only because COMELEC took the position
that domicile could be established only from petitioner's repatriation under R.A. No. 9225 in July 2006.
However, it does not take away the fact that in reality, petitioner had returned from the U.S. and was
here to stay permanently, on 24 May 2005. When she claimed to have been a resident for ten (10) years
and eleven (11) months, she could do so in good faith.

For another, it could not be said that petitioner was attempting to hide anything. As already stated, a
petition for quo warranto  had been filed against her with the SET as early as August 2015. The event
from which the COMELEC pegged the commencement of residence, petitioner's repatriation in July 2006
under R.A. No. 9225, was an established fact to repeat, for purposes of her senatorial candidacy.

Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner
recounted that this was first brought up in the media on 2 June 2015 by Rep. Tobias Tiangco of the
United Nationalist Alliance. Petitioner appears to have answered the issue immediately, also in the
press. Respondents have not disputed petitioner's evidence on this point. From that time therefore
when Rep. Tiangco discussed it in the media, the stated period of residence in the 2012 COC and the
circumstances that surrounded the statement were already matters of public record and were not
hidden.

Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo
warranto.  Her Verified Answer, which was filed on 1 September 2015, admitted that she made a
mistake in the 2012 COC when she put in six ( 6) years and six ( 6) months as she misunderstood the
question and could have truthfully indicated a longer period. Her answer in the SET case was a matter of
public record. Therefore, when petitioner accomplished her COC for President on 15 October 2015, she
could not be said to have been attempting to hide her erroneous statement in her 2012 COC for
Senator  which was expressly mentioned in her Verified Answer.

The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012
statement and have it covered by the 2015 representation. Petitioner, moreover, has on her side this
Court's pronouncement that:

Concededly, a candidate's disqualification to run for public office does not necessarily constitute
material misrepresentation which is the sole ground for denying due course to, and for the cancellation
of, a COC. Further, as already discussed, the candidate's misrepresentation in his COC must not only
refer to a material fact (eligibility and qualifications for elective office), but should evince a deliberate
intent to mislead, misinform or hide a fact which would otherwise render a candidate ineligible. It must
be made with an intention to deceive the electorate as to one's qualifications to run for public office. 168

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of
evidenced dates all of which can evince animus manendi  to the Philippines and animus non revertedi  to
the United States of America. The veracity of the events of coming and staying home was as much as
dismissed as inconsequential, the focus having been fixed at the petitioner's "sworn declaration in her
COC for Senator" which the COMELEC said "amounts to a declaration and therefore an admission that
her residence in the Philippines only commence sometime in November 2006"; such that "based on this
declaration, [petitioner] fails to meet the residency requirement for President." This conclusion, as
already shown, ignores the standing jurisprudence that it is the fact of residence, not the statement of
the person that determines residence for purposes of compliance with the constitutional requirement of
residency for election as President. It ignores the easily researched matter that cases on questions of
residency have been decided favorably for the candidate on the basis of facts of residence far less in
number, weight and substance than that presented by petitioner. 169 It ignores, above all else, what we
consider as a primary reason why petitioner cannot be bound by her declaration in her COC for Senator
which declaration was not even considered by the SET as an issue against her eligibility for Senator.
When petitioner made the declaration in her COC for Senator that she has been a resident for a period
of six (6) years and six (6) months counted up to the 13 May 2013 Elections, she naturally had as
reference the residency requirements for election as Senator which was satisfied by her declared years
of residence. It was uncontested during the oral arguments before us that at the time the declaration for
Senator was made, petitioner did not have as yet any intention to vie for the Presidency in 2016 and
that the general public was never made aware by petitioner, by word or action, that she would run for
President in 2016. Presidential candidacy has a length-of-residence different from that of a senatorial
candidacy. There are facts of residence other than that which was mentioned in the COC for Senator.
Such other facts of residence have never been proven to be false, and these, to repeat include:

[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the
USA to finish pending projects and arrange the sale of their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled
Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College in Makati City in 2005.
Anika was enrolled in Learning Connection in San Juan in 2007, when she was already old enough to go
to school.

In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place
Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the construction of their
family home in Corinthian Hills was completed.

Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who
handled [petitioner's] adoption in 1974 failed to secure from the Office of the Civil Registrar of Iloilo a
new Certificate of Live Birth indicating [petitioner's] new name and stating that her parents are "Ronald
Allan K. Poe" and "Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of the
family's remaining household belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11 March
2006.

In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's
abandonment of their address in the US.

The family home in the US was sole on 27 April 2006.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines on
4 May 2006 and began working for a Philippine company in July 2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they
eventually built their family home.170
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under the
exclusive ground of false representation, to consider no other date than that mentioned by petitioner in
her COC for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her candidacy as
President of the Republic, the questioned Resolutions of the COMELEC in Division and En Banc  are, one
and all, deadly diseased with grave abuse of discretion from root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001 (DC),
entitled Estrella  C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent,  stating that:

[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016
National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is
hereby GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated cases
SPA No. 15-002 (DC) entitled Francisco  S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent;  SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent;  and SPA No. 15-139 (DC) entitled Amado D. Valdez,
petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares,  respondent; stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the
petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of the Philippines in connection with
the 9 May 2016 Synchronized Local and National Elections.

3. dated 23 December 2015 of the COMELEC En Banc,  upholding the 1 December 2015 Resolution of the
Second Division stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the
Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES. The Resolution dated 11 December 2015 of the Commission First Division is AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc,  upholding the 11 December 2015 Resolution of
the First Division.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES

is DECLARED QUALIFIED to be a candidate for President in the National and Local Elections of 9 May
2016.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:
See Concurring Opinion
MARIA LOURDES P.A. SERENO
Chief Justice

See Dissenting Opinion Please see Concurring Opinion

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

Please see Separate Dissenting Opinion See Dissenting opinion

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice

I join J. Caguioa's Opinion

LUCAS P. BERSAMIN
DIOSDADO M. PERALTA
Associate Justice
Associate Justice

Pls. see Dissenting Opinion

JOSE CATRAL MENDOZA
MARIANO C. DEL CASTILLO
Associate Justice
Associate Justice

(I concur with the Dissenting Opinion of

See Dissenting Opinion
Justice Perlas-Bernabe)
ESTELA M. PERLAS-BERNABE
BIENVENIDO L. REYES
Associate Justice
Associate Justice

See Separate Concurring Opinion See Concurring Opinion

MARVIC M.V.F. LEONEN FRANCIS H. JARDELEZA
Associate Justice Associate Justice

See Concurring Opinion

ALFREDO BENJAMIN S. CAGUIOA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice

EN BANC

G.R. No. 189698               February 22, 2010

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, 
vs.
COMMISSION ON ELECTIONS, Respondent.

RESOLUTION

PUNO, C.J.:

Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on
Elections’ (COMELEC) motion for reconsideration, and the movants-intervenors’ motions for
reconsideration-in-intervention, of this Court’s December 1, 2009 Decision (Decision). 1

The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto
and Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third
paragraph of Section 13 of Republic Act No. 9369, 2 Section 66 of the Omnibus Election Code 3 and
Section 4(a) of COMELEC Resolution No. 8678, 4mainly on the ground that they violate the equal
protection clause of the Constitution and suffer from overbreadth. The assailed Decision thus paved
the way for public appointive officials to continue discharging the powers, prerogatives and functions
of their office notwithstanding their entry into the political arena.

In support of their respective motions for reconsideration, respondent COMELEC and movants-
intervenors submit the following arguments:

(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the
participation of public appointive officials and members of the military in partisan political activity;

(2) The assailed provisions do not violate the equal protection clause when they accord differential
treatment to elective and appointive officials, because such differential treatment rests on material
and substantial distinctions and is germane to the purposes of the law;

(3) The assailed provisions do not suffer from the infirmity of overbreadth; and

(4) There is a compelling need to reverse the assailed Decision, as public safety and interest
demand such reversal.

We find the foregoing arguments meritorious.

I.

Procedural Issues

First, we shall resolve the procedural issues on the timeliness of the COMELEC’s motion for
reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for
reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009
Decision.

i. Timeliness of COMELEC’s Motion for Reconsideration

Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court, 5 in relation to Section 1, Rule 52 of the
same rules,6COMELEC had a period of fifteen days from receipt of notice of the assailed Decision
within which to move for its reconsideration. COMELEC received notice of the assailed Decision on
December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration.

The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009.
The corresponding Affidavit of Service (in substitution of the one originally submitted on December
14, 2009) was subsequently filed on December 17, 2009 – still within the reglementary period.

ii. Propriety of the Motions for Reconsideration-in-Intervention

Section 1, Rule 19 of the Rules of Court provides:

A person who has legal interest in the matter in litigation or in the success of either of the parties, or
an interest against both, or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties, and whether or not the
intervenor’s rights may be fully protected in a separate proceeding.

Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained
when the following requisites are satisfied: (1) the would-be intervenor shows that he has a
substantial right or interest in the case; and (2) such right or interest cannot be adequately pursued
and protected in another proceeding.7

Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a
motion for intervention may be filed, viz.:

SECTION 2. Time to intervene.– The motion for intervention may be filed at any time before
rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the
motion and served on the original parties. (italics supplied)

This rule, however, is not inflexible. Interventions have been allowed even beyond the period
prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also
been granted to afford indispensable parties, who have not been impleaded, the right to be heard
even after a decision has been rendered by the trial court, 8 when the petition for review of the
judgment has already been submitted for decision before the Supreme Court, 9 and even where the
assailed order has already become final and executory. 10 In Lim v. Pacquing,11 the motion for
intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice
and injury and to settle once and for all the substantive issues raised by the parties.

In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the
court12 after consideration of the appropriate circumstances. 13 We stress again that Rule 19 of the
Rules of Court is a rule of procedure whose object is to make the powers of the court fully and
completely available for justice.14 Its purpose is not to hinder or delay, but to facilitate and promote
the administration of justice.15

We rule that, with the exception of the IBP – Cebu City Chapter, all the movants-intervenors may
properly intervene in the case at bar.

First, the movants-intervenors have each sufficiently established a substantial right or interest in the
case.
As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1,
2009 Decision, which nullifies a long established law; as a voter, he has a right to intervene in a
matter that involves the electoral process; and as a public officer, he has a personal interest in
maintaining the trust and confidence of the public in its system of government.

On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the
May 2010 elections running against appointive officials who, in view of the December 1, 2009
Decision, have not yet resigned from their posts and are not likely to resign from their posts. They
stand to be directly injured by the assailed Decision, unless it is reversed.

Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and
protected in another proceeding. Clearly, their rights will be foreclosed if this Court’s Decision attains
finality and forms part of the laws of the land.

With regard to the IBP – Cebu City Chapter, it anchors its standing on the assertion that "this case
involves the constitutionality of elections laws for this coming 2010 National Elections," and that
"there is a need for it to be allowed to intervene xxx so that the voice of its members in the legal
profession would also be heard before this Highest Tribunal as it resolves issues of transcendental
importance."16

Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to
present a specific and substantial interest sufficient to clothe it with standing to intervene in the case
at bar. Its invoked interest is, in character, too indistinguishable to justify its intervention.

We now turn to the substantive issues.

II.

Substantive Issues

The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third
paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code,
on the following grounds:

(1) They violate the equal protection clause of the Constitution because of the differential treatment
of persons holding appointive offices and those holding elective positions;

(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive
posts: (a) without distinction as to whether or not they occupy high/influential positions in the
government, and (b) they limit these civil servants’ activity regardless of whether they be partisan or
nonpartisan in character, or whether they be in the national, municipal or barangay level; and

(3) Congress has not shown a compelling state interest to restrict the fundamental right of these
public appointive officials.

We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section
66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA
9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision.

III.
 Section 4(a) of COMELEC Resolution 8678 Compliant with Law

Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and
jurisprudence on the matter, viz.:

Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the
Omnibus Election Code, any person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines, and officers and employees in government-owned
or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of
his certificate of candidacy.

Incumbent Elected Official. – Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair
Election Act,17which repealed Section 67 of the Omnibus Election Code 18 and rendered ineffective
Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of
the campaign period corresponding to the positions for which they are running, 19 an elected official is
not deemed to have resigned from his office upon the filing of his certificate of candidacy for the
same or any other elected office or position. In fine, an elected official may run for another position
without forfeiting his seat.

These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which
prohibits civil service officers and employees from engaging in any electioneering or partisan political
campaign.

The intention to impose a strict limitation on the participation of civil service officers and employees
in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and
Commissioner Foz during the deliberations of the Constitutional Commission is instructive:

MS. QUESADA.

xxxx

Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote:
"No officer or employee in the civil service shall engage, directly or indirectly, in any partisan political
activity." This is almost the same provision as in the 1973 Constitution. However, we in the
government service have actually experienced how this provision has been violated by the direct or
indirect partisan political activities of many government officials.

So, is the Committee willing to include certain clauses that would make this provision more strict,
and which would deter its violation?

MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter
are more than exhaustive enough to really prevent officers and employees in the public service from
engaging in any form of partisan political activity. But the problem really lies in implementation
because, if the head of a ministry, and even the superior officers of offices and agencies of
government will themselves violate the constitutional injunction against partisan political activity, then
no string of words that we may add to what is now here in this draft will really implement the
constitutional intent against partisan political activity. x x x 20 (italics supplied)

To emphasize its importance, this constitutional ban on civil service officers and employees is
presently reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and
Section 55, Chapter 8 – both of Subtitle A, Title I, Book V of the Administrative Code of 1987 –
respectively provide in relevant part:

Section 44. Discipline: General Provisions:

xxxx

(b) The following shall be grounds for disciplinary action:

xxxx

(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.

xxxx

Section 55. Political Activity. — No officer or employee in the Civil Service including members of the
Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any
election except to vote nor shall he use his official authority or influence to coerce the political activity
of any other person or body. Nothing herein provided shall be understood to prevent any officer or
employee from expressing his views on current political problems or issues, or from mentioning the
names of his candidates for public office whom he supports: Provided, That public officers and
employees holding political offices may take part in political and electoral activities but it shall be
unlawful for them to solicit contributions from their subordinates or subject them to any of the acts
involving subordinates prohibited in the Election Code.

Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention
by civil service officers and employees in partisan political activities an election offense, viz.:

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

xxxx

(i) Intervention of public officers and employees. — Any officer or employee in the civil service,
except those holding political offices; any officer, employee, or member of the Armed Forces of the
Philippines, or any police force, special forces, home defense forces, barangay self-defense units
and all other para-military units that now exist or which may hereafter be organized who, directly or
indirectly, intervenes in any election campaign or engages in any partisan political activity, except to
vote or to preserve public order, if he is a peace officer.

The intent of both Congress and the framers of our Constitution to limit the participation of civil
service officers and employees in partisan political activities is too plain to be mistaken.

But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to
civil servants holding apolitical offices. Stated differently, the constitutional ban does not cover
elected officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned or controlled
corporations with original charters." 21 This is because elected public officials, by the very nature of
their office, engage in partisan political activities almost all year round, even outside of the campaign
period.22 Political partisanship is the inevitable essence of a political office, elective positions
included.23
The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as
express their views on political issues, or mention the names of certain candidates for public office
whom they support. This is crystal clear from the deliberations of the Constitutional Commission,
viz.:

MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1,

subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the
phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu
thereof substitute the word CAMPAIGN.

May I be allowed to explain my proposed amendment?

THE PRESIDING OFFICER (Mr. Treñas): Commissioner Aquino may proceed.

MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which
was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended
as a guarantee to the right to vote but as a qualification of the general prohibition against taking part
in elections.

Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this
prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is not an
unconditional right. In other words, the Legislature can always pass a statute which can withhold
from any class the right to vote in an election, if public interest so required. I would only like to
reinstate the qualification by specifying the prohibited acts so that those who may want to vote but
who are likewise prohibited from participating in partisan political campaigns or electioneering may
vote.

MR. FOZ: There is really no quarrel over this point, but please understand that there was no
intention on the part of the Committee to disenfranchise any government official or employee. The
elimination of the last clause of this provision was precisely intended to protect the members of the
civil service in the sense that they are not being deprived of the freedom of expression in a political
contest. The last phrase or clause might have given the impression that a government employee or
worker has no right whatsoever in an election campaign except to vote, which is not the case. They
are still free to express their views although the intention is not really to allow them to take part
actively in a political campaign.24

IV.

Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election
Code Do Not Violate the Equal Protection Clause

We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and
the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal
protection clause of the Constitution.

i. Fariñas, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned provisions
challenged in the case at bar violate the equal protection clause of the Constitution in Fariñas, et al.
v. Executive Secretary, et al.25
In Fariñas, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and
67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly
discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-
resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are
no longer considered ipso facto resigned from their respective offices upon their filing of certificates
of candidacy. In contrast, since Section 66 was not repealed, the limitation on appointive officials
continues to be operative – they are deemed resigned when they file their certificates of candidacy.

The petitioners in Fariñas thus brought an equal protection challenge against Section 14, with the
end in view of having the deemed-resigned provisions "apply equally" to both elected and appointive
officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable
classification, as there are material and significant distinctions between the two classes of officials.
Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and
67 of the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed
muster. We ruled:

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to
elective officials gives undue benefit to such officials as against the appointive ones and violates the
equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to
reasonable classification. If the groupings are characterized by substantial distinctions that make
real differences, one class may be treated and regulated differently from the other. The Court has
explained the nature of the equal protection guarantee in this manner:

The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation
which is limited either in the object to which it is directed or by territory within which it is to operate. It
does not demand absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between those who fall within such class and
those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former
occupy their office by virtue of the mandate of the electorate. They are elected to an office for a
definite term and may be removed therefrom only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their designation thereto by an appointing authority.
Some appointive officials hold their office in a permanent capacity and are entitled to security of
tenure while others serve at the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8,
Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987
(Executive Order No. 292), appointive officials, as officers and employees in the civil service, are
strictly prohibited from engaging in any partisan political activity or take (sic) part in any election
except to vote. Under the same provision, elective officials, or officers or employees holding political
offices, are obviously expressly allowed to take part in political and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators
deemed it proper to treat these two classes of officials differently with respect to the effect on their
tenure in the office of the filing of the certificates of candidacy for any position other than those
occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom
of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-à-vis
appointive officials, is anchored upon material and significant distinctions and all the persons
belonging under the same classification are similarly treated, the equal protection clause of the
Constitution is, thus, not infringed.26

The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed
Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta
movere. This doctrine, which is really "adherence to precedents," mandates that once a case has
been decided one way, then another case involving exactly the same point at issue should be
decided in the same manner. 27 This doctrine is one of policy grounded on the necessity for securing
certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his
treatise The Nature of the Judicial Process:

It will not do to decide the same question one way between one set of litigants and the opposite way
between another. "If a group of cases involves the same point, the parties expect the same decision.
It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided
against me yesterday when I was a defendant, I shall look for the same judgment today if I am
plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be
an infringement, material and moral, of my rights." Adherence to precedent must then be the rule
rather than the exception if litigants are to have faith in the even-handed administration of justice in
the courts.28

Our Fariñas ruling on the equal protection implications of the deemed-resigned provisions cannot be
minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the
issues presented by the case cannot be considered as obiter dictum. 29 This rule applies to all
pertinent questions that are presented and resolved in the regular course of the consideration of the
case and lead up to the final conclusion, and to any statement as to the matter on which the decision
is predicated.30 For that reason, a point expressly decided does not lose its value as a precedent
because the disposition of the case is, or might have been, made on some other ground; or even
though, by reason of other points in the case, the result reached might have been the same if the
court had held, on the particular point, otherwise than it did. 31 As we held in Villanueva, Jr. v. Court of
Appeals, et al.:32

… A decision which the case could have turned on is not regarded as obiter dictum merely because,
owing to the disposal of the contention, it was necessary to consider another question, nor can an
additional reason in a decision, brought forward after the case has been disposed of on one ground,
be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is
sufficient to determine the ultimate issue, but the court actually decides all such points, the case as
an authoritative precedent as to every point decided, and none of such points can be regarded as
having the status of a dictum, and one point should not be denied authority merely because another
point was more dwelt on and more fully argued and considered, nor does a decision on one
proposition make statements of the court regarding other propositions dicta. 33 (italics supplied)

ii. Classification Germane to the Purposes of the Law

The Fariñas ruling on the equal protection challenge stands on solid ground even if reexamined.

To start with, the equal protection clause does not require the universal application of the laws to all
persons or things without distinction. 34 What it simply requires is equality among equals as
determined according to a valid classification. 35 The test developed by jurisprudence here and
yonder is that of reasonableness,36 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class. 37

Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first,
third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the
differential treatment of appointive officials vis-à-vis elected officials is not germane to the purpose of
the law, because "whether one holds an appointive office or an elective one, the evils sought to be
prevented by the measure remain," viz.:

… For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield
the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the
recent past, elected Vice-Presidents were appointed to take charge of national housing, social
welfare development, interior and local government, and foreign affairs). With the fact that they both
head executive offices, there is no valid justification to treat them differently when both file their
[Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President,
in the example, running this time, let us say, for President, retains his position during the entire
election period and can still use the resources of his office to support his campaign. 38

Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice,
the Legislature need not address every manifestation of the evil at once; it may proceed "one step at
a time."39 In addressing a societal concern, it must invariably draw lines and make choices, thereby
creating some inequity as to those included or excluded. 40 Nevertheless, as long as "the bounds of
reasonable choice" are not exceeded, the courts must defer to the legislative judgment. 41 We may
not strike down a law merely because the legislative aim would have been more fully achieved by
expanding the class.42 Stated differently, the fact that a legislative classification, by itself, is
underinclusive will not render it unconstitutionally arbitrary or invidious. 43 There is no constitutional
requirement that regulation must reach each and every class to which it might be applied; 44 that the
Legislature must be held rigidly to the choice of regulating all or none.

Thus, any person who poses an equal protection challenge must convincingly show that the law
creates a classification that is "palpably arbitrary or capricious." 45 He must refute all possible rational
bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the
enactment,46 such that the constitutionality of the law must be sustained even if the reasonableness
of the classification is "fairly debatable." 47 In the case at bar, the petitioners failed – and in fact did
not even attempt – to discharge this heavy burden. Our assailed Decision was likewise silent as a
sphinx on this point even while we submitted the following thesis:

... [I]t is not sufficient grounds for invalidation that we may find that the statute’s distinction is unfair,
underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find
that there is no reasonably rational reason for the differing treatment. 48

In the instant case, is there a rational justification for excluding elected officials from the operation of
the deemed resigned provisions? I submit that there is.
An election is the embodiment of the popular will, perhaps the purest expression of the sovereign
power of the people.49 It involves the choice or selection of candidates to public office by popular
vote.50 Considering that elected officials are put in office by their constituents for a definite term, it
may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in
utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded
to the will of the electorate that they be served by such officials until the end of the term for which
they were elected. In contrast, there is no such expectation insofar as appointed officials are
concerned.

The dichotomized treatment of appointive and elective officials is therefore germane to the purposes
of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the
public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it
wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign
will.51 (emphasis in the original)

In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of
law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would
favor a situation in which the evils are unconfined and vagrant, existing at the behest of both
appointive and elected officials, over another in which a significant portion thereof is contained. The
absurdity of that position is self-evident, to say the least.

The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected
officials (vis-à-vis appointive officials) have greater political clout over the electorate, is indeed a
matter worth exploring – but not by this Court. Suffice it to say that the remedy lies with the
Legislature. It is the Legislature that is given the authority, under our constitutional system, to
balance competing interests and thereafter make policy choices responsive to the exigencies of the
times. It is certainly within the Legislature’s power to make the deemed-resigned provisions
applicable to elected officials, should it later decide that the evils sought to be prevented are of such
frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot
and should not arrogate unto itself the power to ascertain and impose on the people the best state of
affairs from a public policy standpoint.

iii. Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision
adverted to, and extensively cited, Mancuso v. Taft. 52 This was a decision of the First Circuit of the
United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a
similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed:

(1) The right to run for public office is "inextricably linked" with two fundamental freedoms – freedom
of expression and association;

(2) Any legislative classification that significantly burdens this fundamental right must be subjected to
strict equal protection review; and

(3) While the state has a compelling interest in maintaining the honesty and impartiality of its public
work force, the deemed-resigned provisions pursue their objective in a far too heavy-handed manner
as to render them unconstitutional.

It then concluded with the exhortation that since "the Americans, from whom we copied the provision
in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time
that we, too, should follow suit."
Our assailed Decision’s reliance on Mancuso is completely misplaced. We cannot blink away the
fact that the United States Supreme Court effectively overruled Mancuso three months after its
promulgation by the United States Court of Appeals. In United States Civil Service Commission, et
al. v. National Association of Letter Carriers AFL-CIO, et al. 53 and Broadrick, et al. v. State of
Oklahoma, et al.,54 the United States Supreme Court was faced with the issue of whether statutory
provisions prohibiting federal55 and state56 employees from taking an active part in political
management or in political campaigns were unconstitutional as to warrant facial invalidation.
Violation of these provisions results in dismissal from employment and possible criminal sanctions.

The Court declared these provisions compliant with the equal protection clause. It held that (i) in
regulating the speech of its employees, the state as employer has interests that differ significantly
from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must
therefore balance the legitimate interest of employee free expression against the interests of the
employer in promoting efficiency of public services; (iii) if the employees’ expression interferes with
the maintenance of efficient and regularly functioning services, the limitation on speech is not
unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining
which positions are to be covered by any statutory restrictions. 57 Therefore, insofar as government
employees are concerned, the correct standard of review is an interest-balancing approach, a
means-end scrutiny that examines the closeness of fit between the governmental interests and the
prohibitions in question.58

Letter Carriers elucidated on these principles, as follows:

Until now, the judgment of Congress, the Executive, and the country appears to have been that
partisan political activities by federal employees must be limited if the Government is to operate
effectively and fairly, elections are to play their proper part in representative government, and
employees themselves are to be sufficiently free from improper influences. The restrictions so far
imposed on federal employees are not aimed at particular parties, groups, or points of view, but
apply equally to all partisan activities of the type described. They discriminate against no racial,
ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere
with or influence anyone's vote at the polls.

But, as the Court held in Pickering v. Board of Education, 59 the government has an interest in
regulating the conduct and ‘the speech of its employees that differ(s) significantly from those it
possesses in connection with regulation of the speech of the citizenry in general. The problem in any
case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting
upon matters of public concern and the interest of the (government), as an employer, in promoting
the efficiency of the public services it performs through its employees.’ Although Congress is free to
strike a different balance than it has, if it so chooses, we think the balance it has so far struck is
sustainable by the obviously important interests sought to be served by the limitations on partisan
political activities now contained in the Hatch Act.

It seems fundamental in the first place that employees in the Executive Branch of the Government,
or those working for any of its agencies, should administer the law in accordance with the will of
Congress, rather than in accordance with their own or the will of a political party. They are expected
to enforce the law and execute the programs of the Government without bias or favoritism for or
against any political party or group or the members thereof. A major thesis of the Hatch Act is that to
serve this great end of Government-the impartial execution of the laws-it is essential that federal
employees, for example, not take formal positions in political parties, not undertake to play
substantial roles in partisan political campaigns, and not run for office on partisan political tickets.
Forbidding activities like these will reduce the hazards to fair and effective government.
There is another consideration in this judgment: it is not only important that the Government and its
employees in fact avoid practicing political justice, but it is also critical that they appear to the public
to be avoiding it, if confidence in the system of representative Government is not to be eroded to a
disastrous extent.

Another major concern of the restriction against partisan activities by federal employees was
perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction
that the rapidly expanding Government work force should not be employed to build a powerful,
invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns
convinced Congress that these dangers were sufficiently real that substantial barriers should be
raised against the party in power-or the party out of power, for that matter-using the thousands or
hundreds of thousands of federal employees, paid for at public expense, to man its political structure
and political campaigns.

A related concern, and this remains as important as any other, was to further serve the goal that
employment and advancement in the Government service not depend on political performance, and
at the same time to make sure that Government employees would be free from pressure and from
express or tacit invitation to vote in a certain way or perform political chores in order to curry favor
with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against
coercion are sufficient protection; but for many years the joint judgment of the Executive and
Congress has been that to protect the rights of federal employees with respect to their jobs and their
political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or
coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the
prohibition against political activity, the Chairman of the Civil Service Commission stated that ‘the
prohibitions against active participation in partisan political management and partisan political
campaigns constitute the most significant safeguards against coercion . . ..’ Perhaps Congress at
some time will come to a different view of the realities of political life and Government service; but
that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our
view, does the Constitution forbid it.

Neither the right to associate nor the right to participate in political activities is absolute in any
event.60 x x x

xxxx

As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will
of Congress, so as to comport with constitutional limitations. (italics supplied)

Broadrick likewise definitively stated that the assailed statutory provision is constitutionally
permissible, viz.:

Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan
political conduct of state employees. Appellants freely concede that such restrictions serve valid and
important state interests, particularly with respect to attracting greater numbers of qualified people by
insuring their job security, free from the vicissitudes of the elective process, and by protecting them
from ‘political extortion.’ Rather, appellants maintain that however permissible, even commendable,
the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in
their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be
permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s
818 are void in toto and cannot be enforced against them or anyone else.
We have held today that the Hatch Act is not impermissibly vague. 61 We have little doubt that s 818
is similarly not so vague that ‘men of common intelligence must necessarily guess at its
meaning.’62 Whatever other problems there are with s 818, it is all but frivolous to suggest that the
section fails to give adequate warning of what activities it proscribes or fails to set out ‘explicit
standards' for those who must apply it. In the plainest language, it prohibits any state classified
employee from being ‘an officer or member’ of a ‘partisan political club’ or a candidate for ‘any paid
public office.’ It forbids solicitation of contributions ‘for any political organization, candidacy or other
political purpose’ and taking part ‘in the management or affairs of any political party or in any political
campaign.’ Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be
disputes over the meaning of such terms in s 818 as ‘partisan,’ or ‘take part in,’ or ‘affairs of’ political
parties. But what was said in Letter Carriers, is applicable here: ‘there are limitations in the English
language with respect to being both specific and manageably brief, and it seems to us that although
the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that
the ordinary person exercising ordinary common sense can sufficiently understand and comply with,
without sacrifice to the public interest.' x x x

xxxx

[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as
well as unprotected conduct, and must therefore be struck down on its face and held to be incapable
of any constitutional application. We do not believe that the overbreadth doctrine may appropriately
be invoked in this manner here.

xxxx

The consequence of our departure from traditional rules of standing in the First Amendment area is
that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting
construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to
constitutionally protected expression. Application of the overbreadth doctrine in this manner is,
manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x
xx

x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an
exception to our traditional rules of practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from
‘pure speech’ toward conduct and that conduct-even if expressive-falls within the scope of otherwise
valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter
protected speech to some unknown extent, there comes a point where that effect-at best a
prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State
from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the
matter another way, particularly where conduct and not merely speech is involved, we believe that
the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the
statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that
whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations
to which its sanctions, assertedly, may not be applied.

Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its
terms, at political expression which if engaged in by private persons would plainly be protected by
the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute,
directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in
an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a
less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial
spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal
trespass. This much was established in United Public Workers v. Mitchell, and has been
unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no
question that s 818 is valid at least insofar as it forbids classified employees from: soliciting
contributions for partisan candidates, political parties, or other partisan political purposes; becoming
members of national, state, or local committees of political parties, or officers or committee members
in partisan political clubs, or candidates for any paid public office; taking part in the management or
affairs of any political party's partisan political campaign; serving as delegates or alternates to
caucuses or conventions of political parties; addressing or taking an active part in partisan political
rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get
voters to the polls; participating in the distribution of partisan campaign literature; initiating or
circulating partisan nominating petitions; or riding in caravans for any political party or partisan
political candidate.

x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some
other improper applications. But, as presently construed, we do not believe that s 818 must be
discarded in toto because some persons’ arguably protected conduct may or may not be caught or
chilled by the statute. Section 818 is not substantially overbroad and it not, therefore,
unconstitutional on its face. (italics supplied)

It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles
enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be
interpreted to mean a reversal of Mancuso, since they "pertain to different types of laws and were
decided based on a different set of facts," viz.:

In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Act’s prohibition against "active participation in political
management or political campaigns." The plaintiffs desired to campaign for candidates for public
office, to encourage and get federal employees to run for state and local offices, to participate as
delegates in party conventions, and to hold office in a political club.

In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the
(sic) Oklahoma’s Merit System of Personnel Administration Act restricting the political activities of
the State’s classified civil servants, in much the same manner as the Hatch Act proscribed partisan
political activities of federal employees. Prior to the commencement of the action, the appellants
actively participated in the 1970 reelection campaign of their superior, and were administratively
charged for asking other Corporation Commission employees to do campaign work or to give
referrals to persons who might help in the campaign, for soliciting money for the campaign, and for
receiving and distributing campaign posters in bulk.

Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth
Mancuso, a full time police officer and classified civil service employee of the City of Cranston, filed
as a candidate for nomination as representative to the Rhode Island General Assembly. The Mayor
of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule
Charter.

Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a
different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of
Mancuso. x x x (italics in the original)
We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim,
Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.:

(1) Mancuso involved a civil service employee who filed as a candidate for nomination as
representative to the Rhode Island General Assembly. He assailed the constitutionality of §14.09(c)
of the City Home Rule Charter, which prohibits "continuing in the classified service of the city after
becoming a candidate for nomination or election to any public office."

(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Act’s prohibition against "active participation in political
management or political campaigns"63 with respect to certain defined activities in which they desired
to engage. The plaintiffs relevant to this discussion are:

(a) The National Association of Letter Carriers, which alleged that its members were desirous of,
among others, running in local elections for offices such as school board member, city council
member or mayor;

(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of
Borough Councilman in his local community for fear that his participation in a partisan election would
endanger his job; and

(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan
election for the mayor of West Lafayette, Indiana, and that he would do so except for fear of losing
his job by reason of violation of the Hatch Act.

The Hatch Act defines "active participation in political management or political campaigns" by cross-
referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states:

30. Candidacy for local office: Candidacy for a nomination or for election to any National, State,
county, or municipal office is not permissible. The prohibition against political activity extends not
merely to formal announcement of candidacy but also to the preliminaries leading to such
announcement and to canvassing or soliciting support or doing or permitting to be done any act in
furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee
acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes
an infraction of the prohibitions against political activity. (italics supplied)

Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds
thereafter to pay compensation to these persons.64

(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration
of unconstitutionality of two sub-paragraphs of Section 818 of Oklahoma’s Merit System of
Personnel Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that
"[n]o employee in the classified service shall be … a candidate for nomination or election to any paid
public office…" Violation of Section 818 results in dismissal from employment, possible criminal
sanctions and limited state employment ineligibility.

Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso.
By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and
Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior
court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of
Appeals – the same court that decided Mancuso – to hold categorically and emphatically in Magill v.
Lynch65 that Mancuso is no longer good law. As we priorly explained:

Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket’s "Little
Hatch Act" prohibits city employees from engaging in a broad range of political activities. Becoming a
candidate for any city office is specifically proscribed, 66 the violation being punished by removal from
office or immediate dismissal. The firemen brought an action against the city officials on the ground
that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of
Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It
observed that the view that political candidacy was a fundamental interest which could be infringed
upon only if less restrictive alternatives were not available, was a position which was no longer
viable, since the Supreme Court (finding that the government’s interest in regulating both the
conduct and speech of its employees differed significantly from its interest in regulating those of the
citizenry in general) had given little weight to the argument that prohibitions against the coercion of
government employees were a less drastic means to the same end, deferring to the judgment of
Congress, and applying a "balancing" test to determine whether limits on political activity by public
employees substantially served government interests which were "important" enough to outweigh
the employees’ First Amendment rights.67

It must be noted that the Court of Appeals ruled in this manner even though the election in Magill
was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances
of that case, that politically active bureaucrats might use their official power to help political friends
and hurt political foes. Ruled the court:

The question before us is whether Pawtucket's charter provision, which bars a city employee's
candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate
two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and
Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity.
Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the
Hatch Act as to federal employees. Broadrick sustained Oklahoma's "Little Hatch Act" against
constitutional attack, limiting its holding to Oklahoma's construction that the Act barred only activity in
partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan
elections would not be constitutional. Letter Carriers and Broadrick compel new analysis.

xxxx

What we are obligated to do in this case, as the district court recognized, is to apply the Court’s
interest balancing approach to the kind of nonpartisan election revealed in this record. We believe
that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after
Letter Carriers. We have particular reference to our view that political candidacy was a fundamental
interest which could be trenched upon only if less restrictive alternatives were not available. While
this approach may still be viable for citizens who are not government employees, the Court in Letter
Carriers recognized that the government's interest in regulating both the conduct and speech of its
employees differs significantly from its interest in regulating those of the citizenry in general. Not only
was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to
the argument that prohibitions against the coercion of government employees were a less drastic
means to the same end, deferring to the judgment of the Congress. We cannot be more precise than
the Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process". 68 It
appears that the government may place limits on campaigning by public employees if the limits
substantially serve government interests that are "important" enough to outweigh the employees'
First Amendment rights. x x x (italics supplied)
Upholding thus the constitutionality of the law in question, the Magill court detailed the major
governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as
follows:

In Letter Carriers[,] the first interest identified by the Court was that of an efficient government,
faithful to the Congress rather than to party. The district court discounted this interest, reasoning that
candidates in a local election would not likely be committed to a state or national platform. This
observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned.
But a different kind of possible political intrusion into efficient administration could be thought to
threaten municipal government: not into broad policy decisions, but into the particulars of
administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts
and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers
identified a second governmental interest in the avoidance of the appearance of "political justice" as
to policy, so there is an equivalent interest in avoiding the appearance of political preferment in
privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's
authors evidently feared is not exorcised by the nonpartisan character of the formal election process.
Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the
city might reasonably fear that politically active bureaucrats would use their official power to help
political friends and hurt political foes. This is not to say that the city's interest in visibly fair and
effective administration necessarily justifies a blanket prohibition of all employee campaigning; if
parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor
foe is as easily identified.

A second major governmental interest identified in Letter Carriers was avoiding the danger of a
powerful political machine. The Court had in mind the large and growing federal bureaucracy and its
partisan potential. The district court felt this was only a minor threat since parties had no control over
nominations. But in fact candidates sought party endorsements, and party endorsements proved to
be highly effective both in determining who would emerge from the primary election and who would
be elected in the final election. Under the prevailing customs, known party affiliation and support
were highly significant factors in Pawtucket elections. The charter's authors might reasonably have
feared that a politically active public work force would give the incumbent party, and the incumbent
workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small
size of the electorate and the limited powers of local government may inhibit the growth of interest
groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan
issues and candidacies are at stake, isolated government employees may seek to influence voters
or their co-workers improperly; but a more real danger is that a central party structure will mass the
scattered powers of government workers behind a single party platform or slate. Occasional misuse
of the public trust to pursue private political ends is tolerable, especially because the political views
of individual employees may balance each other out. But party discipline eliminates this diversity and
tends to make abuse systematic. Instead of a handful of employees pressured into advancing their
immediate superior's political ambitions, the entire government work force may be expected to turn
out for many candidates in every election. In Pawtucket, where parties are a continuing presence in
political campaigns, a carefully orchestrated use of city employees in support of the incumbent
party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's
nominating procedure or the lack of party labels on its ballots.

The third area of proper governmental interest in Letter Carriers was ensuring that employees
achieve advancement on their merits and that they be free from both coercion and the prospect of
favor from political activity. The district court did not address this factor, but looked only to the
possibility of a civil servant using his position to influence voters, and held this to be no more of a
threat than in the most nonpartisan of elections. But we think that the possibility of coercion of
employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers.
Once again, it is the systematic and coordinated exploitation of public servants for political ends that
a legislature is most likely to see as the primary threat of employees' rights. Political oppression of
public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to
ride herd on the politics of their employees even in a nonpartisan context, but without party officials
looking over their shoulders most supervisors will prefer to let employees go their own ways.

In short, the government may constitutionally restrict its employees' participation in nominally
nonpartisan elections if political parties play a large role in the campaigns. In the absence of
substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court
lose much of their force. While the employees' First Amendment rights would normally outbalance
these diminished interests, we do not suggest that they would always do so. Even when parties are
absent, many employee campaigns might be thought to endanger at least one strong public interest,
an interest that looms larger in the context of municipal elections than it does in the national
elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate
running directly against his superior or running for a position that confers great power over his
superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct
challenge to the command and discipline of his agency than a fireman or policeman who runs for
mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should
an employee gather substantial political support, are considerable. (citations omitted)

The court, however, remanded the case to the district court for further proceedings in respect of the
petitioners’ overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be
taken lightly, much less to be taken in the dark," the court held:

The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a
closely analogous case. Under Broadrick, when one who challenges a law has engaged in
constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law
is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial
as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend
the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth.
We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for
a candidate, and they were subject to discipline under a law proscribing a wide range of activities,
including soliciting contributions for political candidates and becoming a candidate. The Court found
that this combination required a substantial overbreadth approach. The facts of this case are so
similar that we may reach the same result without worrying unduly about the sometimes opaque
distinction between speech and conduct.

The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a
statute restricting partisan campaigning. Pawtucket has gone further, banning participation in
nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently
requires, inter alia, a rough balancing of the number of valid applications compared to the number of
potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-
fetched does not deserve as much weight as one that is probable. The question is a matter of
degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a
law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with
some idea of the number of potentially invalid applications the statute permits. Often, simply reading
the statute in the light of common experience or litigated cases will suggest a number of probable
invalid applications. But this case is different. Whether the statute is overbroad depends in large part
on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees.
For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively
contested by political parties. Certainly the record suggests that parties play a major role even in
campaigns that often are entirely nonpartisan in other cities. School committee candidates, for
example, are endorsed by the local Democratic committee.
The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken
lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short
period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs
may very well feel that further efforts are not justified, but they should be afforded the opportunity to
demonstrate that the charter forecloses access to a significant number of offices, the candidacy for
which by municipal employees would not pose the possible threats to government efficiency and
integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand
for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted)

Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft,
heavily relied upon by the ponencia, has effectively been overruled. 69 As it is no longer good law, the
ponencia’s exhortation that "[since] the Americans, from whom we copied the provision in question,
had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too,
should follow suit" is misplaced and unwarranted. 70

Accordingly, our assailed Decision’s submission that the right to run for public office is "inextricably
linked" with two fundamental freedoms – those of expression and association – lies on barren
ground. American case law has in fact never recognized a fundamental right to express one’s
political views through candidacy,71 as to invoke a rigorous standard of review. 72 Bart v.
Telford73 pointedly stated that "[t]he First Amendment does not in terms confer a right to run for
public office, and this court has held that it does not do so by implication either." Thus, one’s interest
in seeking office, by itself, is not entitled to constitutional protection. 74 Moreover, one cannot bring
one’s action under the rubric of freedom of association, absent any allegation that, by running for an
elective position, one is advancing the political ideas of a particular set of voters. 75

Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar,
are not violative of the equal protection clause. The deemed-resigned provisions substantially serve
governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather
than to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the
danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on
their merits and that they be free from both coercion and the prospect of favor from political activity).
These are interests that are important enough to outweigh the non-fundamental right of appointive
officials and employees to seek elective office. 1avvphi1

En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing 76 and Morial, et
al. v. Judiciary Commission of the State of Louisiana, et al. 77 to buttress his dissent. Maintaining that
resign-to-run provisions are valid only when made applicable to specified officials, he explains:

…U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when
applied to specified or particular officials, as distinguished from all others, 78 under a classification that
is germane to the purposes of the law. These resign-to-run legislations were not expressed in a
general and sweeping provision, and thus did not violate the test of being germane to the purpose of
the law, the second requisite for a valid classification. Directed, as they were, to particular officials,
they were not overly encompassing as to be overbroad. (emphasis in the original)

This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions
in these cases were upheld not because they referred to specified or particular officials (vis-à-vis a
general class); the questioned provisions were found valid precisely because the Court deferred to
legislative judgment and found that a regulation is not devoid of a rational predicate simply because
it happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the
claim that the State of Texas failed to explain why some public officials are subject to the resign-to-
run provisions, while others are not. Ruled the United States Supreme Court:
Article XVI, § 65, of the Texas Constitution provides that the holders of certain offices automatically
resign their positions if they become candidates for any other elected office, unless the unexpired
portion of the current term is one year or less. The burdens that § 65 imposes on candidacy are
even less substantial than those imposed by § 19. The two provisions, of course, serve essentially
the same state interests. The District Court found § 65 deficient, however, not because of the nature
or extent of the provision's restriction on candidacy, but because of the manner in which the offices
are classified. According to the District Court, the classification system cannot survive equal
protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials
are subject to § 65 and why others are not. As with the case of § 19, we conclude that § 65 survives
a challenge under the Equal Protection Clause unless appellees can show that there is no rational
predicate to the classification scheme.

The history behind § 65 shows that it may be upheld consistent with the "one step at a time"
approach that this Court has undertaken with regard to state regulation not subject to more vigorous
scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in 1954 as a
transitional provision applying only to the 1954 election. Section 65 extended the terms of those
offices enumerated in the provision from two to four years. The provision also staggered the terms of
other offices so that at least some county and local offices would be contested at each election. The
automatic resignation proviso to § 65 was not added until 1958. In that year, a similar automatic
resignation provision was added in Art. XI, § 11, which applies to officeholders in home rule cities
who serve terms longer than two years. Section 11 allows home rule cities the option of extending
the terms of municipal offices from two to up to four years.

Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of
1958. That the State did not go further in applying the automatic resignation provision to those
officeholders whose terms were not extended by § 11 or § 65, absent an invidious purpose, is not
the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection
Clause. A regulation is not devoid of a rational predicate simply because it happens to be
incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's
candidacy for another elected office unless and until it places similar restrictions on other
officeholders. The provision's language and its history belie any notion that § 65 serves the invidious
purpose of denying access to the political process to identifiable classes of potential candidates.
(citations omitted and italics supplied)

Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket
approval of restrictions on the right of public employees to become candidates for public office" out
of context. A correct reading of that line readily shows that the Court only meant to confine its ruling
to the facts of that case, as each equal protection challenge would necessarily have to involve
weighing governmental interests vis-à-vis the specific prohibition assailed. The Court held:

The interests of public employees in free expression and political association are unquestionably
entitled to the protection of the first and fourteenth amendments. Nothing in today's decision should
be taken to imply that public employees may be prohibited from expressing their private views on
controversial topics in a manner that does not interfere with the proper performance of their public
duties. In today's decision, there is no blanket approval of restrictions on the right of public
employees to become candidates for public office. Nor do we approve any general restrictions on
the political and civil rights of judges in particular. Our holding is necessarily narrowed by the
methodology employed to reach it. A requirement that a state judge resign his office prior to
becoming a candidate for non-judicial office bears a reasonably necessary relation to the
achievement of the state's interest in preventing the actuality or appearance of judicial impropriety.
Such a requirement offends neither the first amendment's guarantees of free expression and
association nor the fourteenth amendment's guarantee of equal protection of the laws. (italics
supplied)

Indeed, the Morial court even quoted Broadrick and stated that:

In any event, the legislature must have some leeway in determining which of its employment
positions require restrictions on partisan political activities and which may be left unregulated. And a
State can hardly be faulted for attempting to limit the positions upon which such restrictions are
placed. (citations omitted)

V.

Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election
Code Do Not Suffer from Overbreadth

Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the
Omnibus Election Code on equal protection ground, our assailed Decision struck them down for
being overbroad in two respects, viz.:

(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without
due regard for the type of position being held by the employee seeking an elective post and the
degree of influence that may be attendant thereto; 79 and

(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive
positions without due regard for the type of office being sought, whether it be partisan or nonpartisan
in character, or in the national, municipal or barangay level.

Again, on second look, we have to revise our assailed Decision.

i. Limitation on Candidacy Regardless of Incumbent Appointive Official’s Position, Valid

According to the assailed Decision, the challenged provisions of law are overly broad because they
apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of
position being held by the employee running for elective office and the degree of influence that may
be attendant thereto.

Its underlying assumption appears to be that the evils sought to be prevented are extant only when
the incumbent appointive official running for elective office holds an influential post.

Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the
government posed by the partisan potential of a large and growing bureaucracy: the danger of
systematic abuse perpetuated by a "powerful political machine" that has amassed "the scattered
powers of government workers" so as to give itself and its incumbent workers an "unbreakable grasp
on the reins of power."80 As elucidated in our prior exposition: 81

Attempts by government employees to wield influence over others or to make use of their respective
positions (apparently) to promote their own candidacy may seem tolerable – even innocuous –
particularly when viewed in isolation from other similar attempts by other government employees.
Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous
possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on
the part of an emerging central party structure to advance its own agenda through a "carefully
orchestrated use of [appointive and/or elective] officials" coming from various levels of the
bureaucracy.

…[T]he avoidance of such a "politically active public work force" which could give an emerging
political machine an "unbreakable grasp on the reins of power" is reason enough to impose a
restriction on the candidacies of all appointive public officials without further distinction as to the type
of positions being held by such employees or the degree of influence that may be attendant thereto.
(citations omitted)

ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid

The assailed Decision also held that the challenged provisions of law are overly broad because they
are made to apply indiscriminately to all civil servants holding appointive offices, without due regard
for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in
the national, municipal or barangay level.

This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and
the temptations it fosters are sufficiently different from those involved in an office removed from
regular party politics [so as] to warrant distinctive treatment," 82 so that restrictions on candidacy akin
to those imposed by the challenged provisions can validly apply only to situations in which the
elective office sought is partisan in character. To the extent, therefore, that such restrictions are said
to preclude even candidacies for nonpartisan elective offices, the challenged restrictions are to be
considered as overbroad.

Again, a careful study of the challenged provisions and related laws on the matter will show that the
alleged overbreadth is more apparent than real. Our exposition on this issue has not been
repudiated, viz.:

A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein
refer to the filing of certificates of candidacy and nomination of official candidates of registered
political parties, in connection with the May 10, 2010 National and Local Elections. 83 Obviously, these
rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued
specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted,
are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678
applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10,
2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section
4(a) is clearly unsustainable.

Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election
Code, in conjunction with other related laws on the matter, will confirm that these provisions are
likewise not intended to apply to elections for nonpartisan public offices.

The only elections which are relevant to the present inquiry are the elections for barangay offices,
since these are the only elections in this country which involve nonpartisan public offices. 84

In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code
in 1985, Congress has intended that these nonpartisan barangay elections be governed by special
rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus
Election Code. Said provision states:
Section 39. Certificate of Candidacy. – No person shall be elected punong barangay or kagawad ng
sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from
the commencement of the election period but not later than the day before the beginning of the
campaign period in a form to be prescribed by the Commission. The candidate shall state the
barangay office for which he is a candidate.

xxxx

Any elective or appointive municipal, city, provincial or national official or employee, or those in the
civil or military service, including those in government-owned or-controlled corporations, shall be
considered automatically resigned upon the filing of certificate of candidacy for a barangay office.

Since barangay elections are governed by a separate deemed resignation rule, under the present
state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of
the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any
election other than a partisan one. For this reason, the overbreadth challenge raised against Section
66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail. 85

In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus
Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply
also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again,
we explained:

In the first place, the view that Congress is limited to controlling only partisan behavior has not
received judicial imprimatur, because the general proposition of the relevant US cases on the matter
is simply that the government has an interest in regulating the conduct and speech of its employees
that differs significantly from those it possesses in connection with regulation of the speech of the
citizenry in general.86

Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly
broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the
overbreadth must not only be real, but substantial as well, judged in relation to the statute’s plainly
legitimate sweep.87

In operational terms, measuring the substantiality of a statute’s overbreadth would entail, among
other things, a rough balancing of the number of valid applications compared to the number of
potentially invalid applications.88In this regard, some sensitivity to reality is needed; an invalid
application that is far-fetched does not deserve as much weight as one that is probable. 89 The
question is a matter of degree. 90 Thus, assuming for the sake of argument that the partisan-
nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction
is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must
demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e.
the number of elections that were insulated from party rivalry but were nevertheless closed to
appointive employees) that may in all probability result from the enforcement of the statute. 91

The state of the record, however, does not permit us to find overbreadth. Borrowing from the words
of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken in the
dark,92 especially since an overbreadth finding in this case would effectively prohibit the State from
‘enforcing an otherwise valid measure against conduct that is admittedly within its power to
proscribe.’93
This Court would do well to proceed with tiptoe caution, particularly when it comes to the application
of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden
the exercise of the right to freedom of speech, for such approach is manifestly strong medicine that
must be used sparingly, and only as a last resort.94

In the United States, claims of facial overbreadth have been entertained only where, in the judgment
of the court, the possibility that protected speech of others may be muted and perceived grievances
left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible
harm to society in allowing some unprotected speech or conduct to go unpunished. 95 Facial
overbreadth has likewise not been invoked where a limiting construction could be placed on the
challenged statute, and where there are readily apparent constructions that would cure, or at least
substantially reduce, the alleged overbreadth of the statute. 96

In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain
in office, even as they actively pursue elective posts, far outweighs the less likely evil of having
arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad
statute.
a1f

In this light, the conceivably impermissible applications of the challenged statutes – which are, at
best, bold predictions – cannot justify invalidating these statutes in toto and prohibiting the State
from enforcing them against conduct that is, and has for more than 100 years been, unquestionably
within its power and interest to proscribe. 97 Instead, the more prudent approach would be to deal with
these conceivably impermissible applications through case-by-case adjudication rather than through
a total invalidation of the statute itself.98

Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for
Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had
already filed their Certificates of Candidacy without relinquishing their posts. 99 Several COMELEC
election officers had likewise filed their Certificates of Candidacy in their respective
provinces.100 Even the Secretary of Justice had filed her certificate of substitution for representative
of the first district of Quezon province last December 14, 2009 101 – even as her position as Justice
Secretary includes supervision over the City and Provincial Prosecutors, 102 who, in turn, act as Vice-
Chairmen of the respective Boards of Canvassers.103 The Judiciary has not been spared, for a
Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow
the tilting of our electoral playing field in their favor.

For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA
9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally
overbroad.

IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent’s and the intervenors’
Motions for Reconsideration; REVERSE and SET ASIDE this Court’s December 1, 2009 Decision;
DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1)
Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of
Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code.

SO ORDERED.

REYNATO S. PUNO
Chief Justice

WE CONCUR:
 ANTONIO T. CARPIO
Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE C. MENDOZA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes

1
 Penned by Justice Antonio Eduardo B. Nachura, the Decision was promulgated on a vote of 8-6.
Justices Corona, Chico-Nazario, Velasco, Leonardo-De Castro, Brion, Bersamin, and Del Castillo
concurred. Justices Peralta, Abad and Villarama joined the Dissenting Opinion of Chief Justice
Puno, while Justices Carpio and Carpio Morales wrote separate Dissenting Opinions.

2
 SEC. 15. Official Ballot. –
 xxxx

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

3
 SECTION 66. Candidates holding appointive office or positions. — Any person holding a public
appointive office or position, including active members of the Armed Forces of the Philippines, and
officers and employees in government-owned or controlled corporations, shall be considered ipso
facto resigned from his office upon the filing of his certificate of candidacy.

4
 SECTION 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive
office or position including active members of the Armed Forces of the Philippines, and other officers
and employees in government-owned or controlled corporations, shall be considered ipso facto
resigned from his office upon the filing of his certificate of candidacy.

 Sec. 2. Rules applicable. The procedure in original cases for certiorari, prohibition, mandamus, quo
5

warranto and habeas corpus shall be in accordance with the applicable provisions of the
Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule, subject to the following provisions:

a) All references in said Rules to the Court of Appeals shall be understood to also apply to the
Supreme Court;

b) The portions of ssaid Rules dealing strictly with and specifically intended for appealed cases in
the Court of Appeals shall not be applicable; and

c) Eighteen (18) clearly legible copies of the petition shall be filed, together with proof of service on
all adverse parties.

The proceedings for disciplinary action against members of the judiciary shall be governed by the
laws and Rules prescribed therefor, and those against attorneys by Rule 139-B, as amended.

6
 Section 1. Period for filing. A party may file a motion for reconsideration of a judgment or final
resolution within fifteen (15) days from notice thereof, with proof of service on the adverse party.

7
 Secretary of Agrarian Reform et al. v. Tropical Homes, G.R. Nos. 136827 & 136799, July 31, 2001,
362 SCRA 115.

 Tahanan Development Corporation v. Court of Appeals, G.R. No. 155771, 15 November 1982, 118
8

SCRA 273.

9
 Director of Lands v. Court of Appeals, G.R. No. L-45168, September 25, 1979, 93 SCRA 238.

10
 Mago v. Court of Appeals, G.R. No. 115624, February 25, 1999, 300 SCRA 600.
11
 G.R. No. 115044, January 27, 1995, 240 SCRA 649.

 Heirs of Geronimo Restrivera v. De Guzman, G.R. No. 146540, July 14, 2004, 434 SCRA 456;
12

Office of the Ombudsman v. Rolando S. Miedes, G.R. No. 176409, February 27, 2008, 547 SCRA
148.

13
 See Mago v. Court of Appeals, supra note 10.

 Manila Railroad Company v. Attorney-General, 20 Phil. 523, 529 (1912). See also Director of
14

Lands v. Court of Appeals, supra note 9 at 246, and Mago v. Court of Appeals, supra note 10 at 234.

15
 Manila Railroad Company v. Attorney-General, id. at 530.

16
 Motion for Leave to Intervene dated December 14, 2009, p. 2.

 SECTION 14. Repealing Clause. — Sections 67 and 85 of the Omnibus Election Code (Batas
17

Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a
consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is
rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any
part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended
accordingly. (italics supplied)

 SECTION 67. Candidates holding elective office. — Any elective official, whether national or local,
18

running for any office other than the one which he is holding in a permanent capacity, except for
President and Vice-President, shall be considered ipso facto resigned from his office upon the filing
of his certificate of candidacy.

19
 SECTION 11. Official Ballot. —

xxxx

For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later than one hundred twenty
(120) days before the elections: Provided, That, any elective official, whether national or local,
running for any office other than the one which he/she is holding in a permanent capacity, except for
president and vice-president, shall be deemed resigned only upon the start of the campaign period
corresponding to the position for which he/she is running: Provided, further, That, x x x. (italics
supplied)

20
 Record of the Constitutional Commission, Vol. I, p. 536.

21
 Section 2(1), Article IX-B, 1987 Constitution.

22
 Dissenting Opinion of Justice Antonio T. Carpio, p. 5.

23
 Dissenting Opinion of Justice Conchita Carpio Morales, p. 6.

24
 Record of the Constitutional Commission, Vol. I, p. 573.

25
 G.R. No. 147387, December 10, 2003, 417 SCRA 503.
26
 Id. at 525-528.

27
 Tan Chong v. Secretary of Labor, 79 Phil. 249.

 Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven and London: Yale
28

University Press), 33-34 (1921).

 Villanueva, Jr. v. Court of Appeals, et al., G.R. No. 142947, March 19, 2002, 379 SCRA 463, 469
29

citing 21 Corpus Juris Secundum §190.

30
 Id. at 469-470.

31
 Id. at 470.

32
 Supra note 29.

33
 Id. at 470.

 The Philippine Judges Association, et al. v. Prado, et al., G.R. No. 105371, November 11, 1993,
34

227 SCRA 703, 712.

35
 Id.

 The National Police Commission v. De Guzman, et al., G.R. No. 106724, February 9, 1994, 229
36

SCRA 801, 809.

37
 People v. Cayat, 68 Phil. 12, 18 (1939).

38
 Decision, p. 23.

39
 Greenberg v. Kimmelman, 99 N.J. 552, 577, 494 A.2d 294 (1985).

 New Jersey State League of Municipalities, et al. v. State of New Jersey, 257 N.J. Super. 509, 608
40

A.2d 965 (1992).

41
 Taxpayers Ass'n of Weymouth Tp. v. Weymouth Tp., 80 N.J. 6, 40, 364 A.2d 1016 (1976).

42
 Robbiani v. Burke, 77 N.J. 383, 392-93, 390 A.2d 1149 (1978).

 De Guzman, et al. v. Commission on Elections, G.R. No. 129118, July 19, 2000, 336 SCRA 188,
43

197; City of St. Louis v. Liberman, 547 S.W.2d 452 (1977); First Bank & Trust Co. v. Board of
Governors of Federal Reserve System, 605 F.Supp. 555 (1984); Richardson v. Secretary of Labor,
689 F.2d 632 (1982); Holbrook v. Lexmark International Group, Inc., 65 S.W.3d 908 (2002).

 State v. Ewing, 518 S.W.2d 643 (1975); Werner v. Southern California Associated Newspapers, 35
44

Cal.2d 121, 216 P.2d 825 (1950).

45
 Chamber of Commerce of the U.S.A. v. New Jersey, 89 N.J. 131, 159, 445 A.2d 353 (1982).

46
 Werner v. Southern California Associated Newspapers, supra note 44.
  Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212, 227, 486 A.2d 305 (1985); New
47

Jersey State League of Municipalities, et al. v. State of New Jersey, supra note 40.

48
 New Jersey State League of Municipalities, et al. v. State of New Jersey, supra note 40.

49
 Taule v. Santos, et al., G.R. No. 90336, August 12, 1991, 200 SCRA 512, 519.

50
 Id.

51
 Dissenting Opinion of Chief Justice Reynato S. Puno, pp. 60-61.

52
 476 F.2d 187 (1973).

53
 413 U.S. 548, 93 S.Ct. 2880 (1973).

54
 413 U.S. 601, 93 S.Ct. 2908 (1973).

55
 Section 9(a) of the Hatch Act provides:

An employee in an Executive agency or an individual employed by the government of the District of

Columbia may not-

(1) use his official authority or influence for the purpose of interfering with or affecting the result of an
election; or

(2) take an active part in political management or in political campaigns. ‘For the purpose of this
subsection, the phrase ‘an active part in political management or in political campaigns' means those
acts of political management or political campaigning which were prohibited on the part of
employees in the competitive service before July 19, 1940, by determinations of the Civil Service
Commission under the rules prescribed by the President.

56
 Section 818 of Oklahoma’s Merit System of Personnel Administration Act provides:

(1) No person in the classified service shall be appointed to, or demoted or dismissed from any
position in the classified service, or in any way favored or discriminated against with respect to
employment in the classified service because of his political or religious opinions or affiliations, or
because of race, creed, color or national origin or by reason of any physical handicap so long as the
physical handicap does not prevent or render the employee less able to do the work for which he is
employed.

(2) No person shall use or promise to use, directly or indirectly, any official authority or influence,
whether possessed or anticipated, to secure or attempt to secure for any person an appointment or
advantage in appointment to a position in the classified service, or an increase in pay or other
advantage in employment in any such position, for the purpose of influencing the vote or political
action of any person, or for consideration; provided, however, that letters of inquiry, recommendation
and reference by public employees of public officials shall not be considered official authority or
influence unless such letter contains a threat, intimidation, irrelevant, derogatory or false information.

(3) No person shall make any false statement, certificate, mark, rating, or report with regard to any
test, certification or appointment made under any provision of this Act or in any manner commit any
fraud preventing the impartial execution of this Act and rules made hereunder.
(4) No employee of the department, examiner, or other person shall defeat, deceive, or obstruct any
person in his or her right to examination, eligibility, certification, or appointment under this law, or
furnish to any person any special or secret information for the purpose of effecting (sic) the rights or
prospects of any person with respect to employment in the classified service.

(5) No person shall, directly or indirectly, give, render, pay, offer, solicit, or accept any money,
service, or other valuable consideration for or on account of any appointment, proposed
appointment, promotion, or proposed promotion to, or any advantage in, a position in the classified
service.

(6) No employee in the classified service, and no member of the Personnel Board shall, directly or
indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment,
subscription or contribution for any political organization, candidacy or other political purpose; and no
state officer or state employee in the unclassified service shall solicit or receive any such
assessment, subscription or contribution from an employee in the classified service.

(7) No employee in the classified service shall be a member of any national, state or local committee
of a political party, or an officer or member of a committee of a partisan political club, or a candidate
for nomination or election to any paid public office, or shall take part in the management or affairs of
any political party or in any political campaign, except to exercise his right as a citizen privately to
express his opinion and to cast his vote.

(8) Upon a showing of substantial evidence by the Personnel Director that any officer or employee in
the state classified service, has knowingly violate any of the provisions of this Section, the State
Personnel Board shall notify the officer or employee so charged and the appointing authority under
whose jurisdiction the officer or employee serves. If the officer or employee so desires, the State
Personnel Board shall hold a public hearing, or shall authorize the Personnel Director to hold a
public hearing, and submit a transcript thereof, together with a recommendation, to the State
Personnel Board. Relevant witnesses shall be allowed to be present and testify at such hearings. If
the officer or employee shall be found guilty by the State Personnel Board of the violation of any
provision of this Section, the Board shall direct the appointing authority to dismiss such officer or
employee; and the appointing authority so directed shall comply.

57
 See also Anderson v. Evans, 660 F2d 153 (1981).

58
 Morial, et al. v. Judiciary Commission of the State of Louisiana, et al., 565 F.2d 295 (1977).

59
 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968).

 See, e.g., Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Dunn v.
60

Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972); Bullock v. Carter, 405 U.S.
134, 140-141, 92 S.Ct. 849, 854-855, 31 L.Ed.2d 92 (1972); Jenness v. Fortson, 403 U.S. 431, 91
S.Ct. 1970, 29 L.Ed.2d 554 (1971); Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10-11, 21
L.Ed.2d 24 (1968).

 United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413
61

U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796.

 Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).
62

See Grayned v. City of Rockford, 408 U.S. 104, 108-114, 92 S.Ct. 2294, 2298-2302, 33 L.Ed.2d 222
(1972); Colten v. Kentucky, 407 U.S. 104, 110-111, 92 S.Ct. 1953, 1957-1958, 32 L.Ed.2d 584
(1972); Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182 (1968).

63
 Section 9(a), Hatch Act.

 In 1950, Section 9(b) of the Hatch Act was amended by providing the exception that the Civil
64

Service Commission, by unanimous vote, could impose a lesser penalty, but in no case less than 90
days’ suspension without pay. In 1962, the period was reduced to 30 days’ suspension without pay.
The general rule, however, remains to be removal from office.

65
 560 F.2d 22 (1977).

66
 The relevant charter provisions read as follows:

xxxx

(5) No appointed official, employee or member of any board or commission of the city, shall be a
member of any national, state or local committee of a political party or organization, or an officer of a
partisan political organization, or take part in a political campaign, except his right privately to
express his opinion and to cast his vote.

(6) No appointed official or employee of the city and no member of any board or commission shall be
a candidate for nomination or election to any public office, whether city, state or federal, except
elected members of boards or commissions running for re-election, unless he shall have first
resigned his then employment or office.

xxxx

 See also Davis, R., Prohibiting Public Employee from Running for Elective Office as Violation of
67

Employee’s Federal Constitutional Rights, 44 A.L.R. Fed. 306.

68
 Alderman v. Philadelphia Housing Authority, 496 F.2d 164, 171 n. 45 (1974).

69
 Fernandez v. State Personnel Board, et al., 175 Ariz. 39, 852 P.2d 1223 (1993).

70
 Dissenting Opinion of Chief Justice Reynato S. Puno, pp. 51-56.

71
 Carver v. Dennis, 104 F.3d 847, 65 USLW 2476 (1997); American Constitutional Law Foundation,
Inc. v. Meyer, 120 F.3d 1092, 1101 (1997); NAACP, Los Angeles Branch v. Jones, 131 F.3d 1317,
1324 (1997); Brazil-Breashears v. Bilandic, 53 F.3d 789, 792 (1995). See also Bullock v. Carter,
supra note 60, quoted in Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d
508 (1982).

72
 Newcomb v. Brennan, 558 F.2d 825 (1977).

73
 677 F.2d 622, 624 (1982).

74
 Newcomb v. Brennan, supra note 72.

75
 Id.
76
 Supra note 71.

77
 Supra note 58.

 The provision in question in Clements covers District Clerks, County Clerks, County Judges,
78

County Treasurers, Criminal District Attorneys, County Surveyors, Inspectors of Hides and Animals,
County Commissioners, Justices of the Peace, Sheriffs, Assessors and Collectors of Taxes, District
Attorneys, County Attorneys, Public Weighers, and Constables. On the other hand, the provision in
Morial covers judges running for non-judicial elective office.

79
 Decision, pp. 25-26.

80
 Magill v. Lynch, supra note 65.

81
 Dissenting Opinion of Chief Justice Reynato S. Puno, p. 63.

82
 Decision, p. 27, citing Mancuso v. Taft, supra note 52.

83
 See rollo, p.3, where the titular heading, as well as the first paragraph of Resolution 8678, refers to
the contents of said Resolution as the "Guidelines on the Filing of Certificates of Candidacy and
Nomination of Official Candidates of Registered Political Parties in Connection with the May 10,
2010 National and Local Elections."

 The Sangguniang Kabataan elections, although nonpartisan in character, are not relevant to the
84

present inquiry, because they are unlikely to involve the candidacies of appointive public officials.

85
 Dissenting Opinion of Chief Justice Reynato S. Puno, pp. 64-65.

86
 Smith v. Ehrlich, 430 F. Supp. 818 (1976).

87
 Broadrick v. Oklahoma, supra note 54.

88
 Magill v. Lynch, supra note 65.

89
 Id.

90
 Id.

91
 Id.

92
 Id.

93
 Broadrick v. Oklahoma, supra note 54.

94
 Id.

95
 Id.

96
 Mining v. Wheeler, 378 F. Supp. 1115 (1974).
97
 Broadrick v. Oklahoma, supra note 54.

98
 Aiello v. City of Wilmington, Delaware, 623 F.2d 845 (1980).

99
 Motion for Reconsideration dated December 16, 2009, p. 2.

 Id. at p. 3, citing Comelec wants SC to reverse ruling on gov’t execs, Philippine Daily Inquirer, 11
100

December 2009, available at http://politics.inquirer.net/view.php?article=20091211-241394.

 Id., citing Devanadera files COC for Quezon congress seat, The Philippine Star, 15 December
101

2009, available at http:://www.philstar.com/Article.aspx?

articleId=532552&publicationSubCategoryId=67.

102
 Revised administrative code, title 3, book iv, Chapter 8, Sec. 39

103
 Republic Act No. 6646, Sec. 20.

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

CARPIO, J.:

I concur with the ponencia of Chief Justice Reynato S. Puno.

The filing of a Certificate of Candidacy for an elective position is, by the very nature of the act, an
electioneering or partisan political activity.

Two provisions of the Constitution, taken together, mandate that civil service employees cannot
engage in any electioneering or partisan political activity except to vote. Thus, the Constitution
provides:

Section 2(4), Article IX-B of the Constitution

No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or
partisan political activity.

Section 5(3), Article XVI of the Constitution

No member of the military shall engage, directly or indirectly, in any partisan political activity, except
to vote.
During the deliberations of the Constitutional Commission on these provisions of the Constitution, it
was clear that the exercise of the right to vote is the only non-partisan political activity a citizen can
do. All other political activities are deemed partisan. Thus, Commissioner Christian Monsod declared
that, "As a matter of fact, the only non partisan political activity one can engage in as a citizen is
voting."1

Indisputably, any political activity except to vote is a partisan political activity. Section 79(b) of the
Omnibus Election Code implements this by declaring that any act designed to elect or promote the
election of a candidate is an electioneering or partisan political activity, thus:

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 xxx."

Filing a certificate of candidacy is obviously a partisan political activity.

First, the mere filing of a Certificate of Candidacy is a definitive announcement to the world that a
person will actively solicit the votes of the electorate to win an elective public office. Such an
announcement is already a promotion of the candidate’s election to public office. Indeed, once a
person becomes an official candidate, he abandons the role of a mere passive voter in an election,
and assumes the role of a political partisan, a candidate promoting his own candidacy to public
office.

Second, only a candidate for a political office files a Certificate of Candidacy. A person merely
exercising his or her right to vote does not. A candidate for a political office is necessarily a partisan
political candidate because he or she is contesting an elective office against other political
candidates. The candidate and the electorate know that there are, more often than not, other
candidates vying for the same elective office, making the contest politically partisan.

Third, a candidate filing his or her Certificate of Candidacy almost always states in the Certificate of
Candidacy the name of the political party to which he or she belongs. The candidate will even attach
to his or her Certificate of Candidacy the certification of his or her political party that he or she is the
official candidate of the political party. Such certification by a political party is obviously designed to
promote the election of the candidate.

Fourth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is
intended, among others, to keep the civil service non-partisan. This constitutional ban is violated
when a civil servant files his or her Certificate of Candidacy as a candidate of a political party. From
the moment the civil servant files his or her Certificate of Candidacy, he or she is immediately
identified as a political partisan because everyone knows he or she will prepare, and work, for the
victory of his or her political party in the elections.

Fifth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is
also intended to prevent civil servants from using their office, and the resources of their office, to
promote their candidacies or the candidacies of other persons. We have seen the spectacle of civil
servants who, after filing their certificates of candidacies, still cling to their public office while
campaigning during office hours.

Sixth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is
further intended to prevent conflict of interest. We have seen Comelec officials who, after filing their
certificates of candidacies, still hold on to their public office.
Finally, filing of a Certificate of Candidacy is a partisan political act that ipso facto operates to
consider the candidate deemed resigned from public office pursuant to paragraph 3, Section 11 of
R.A. No. 8436, as amended by R.A. No. 9369, as well as Section 66 of the Omnibus Election Code,
as amended.

Accordingly, I vote to grant respondent Comelec’s Motion for Reconsideration.

ANTONIO T. CARPIO
Associate Justice

Footnotes

1
 Records of the Constitutional Commission, Vol. I, p. 543.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

NACHURA, J.:

I vote to maintain this Court’s December 1, 2009 Decision. The automatic resignation rule on
appointive government officials and employees running for elective posts is, to my mind,
unconstitutional. I therefore respectfully register my dissent to the resolution of the majority granting
the motion for reconsideration.

I earnestly believe that by this resolution, the majority refused to rectify an unjust rule, leaving in
favor of a discriminatory state regulation and disregarding the primacy of the people’s fundamental
rights to the equal protection of the laws.

Let it be recalled that, on December 1, 2009, the Court rendered its Decision granting the petition
and declaring as unconstitutional the second proviso in the third paragraph of Section 13 of Republic
Act (R.A.) No. 9369, Section 66 of the Omnibus Election Code (OEC) and Section 4(a) of
Commission on Elections (COMELEC) Resolution No. 8678. 1

Claiming to have legal interest in the matter in litigation, Senator Manuel A. Roxas filed, on
December 14, 2009, his Omnibus Motion for Leave of Court to: (a) Intervene in the Instant Case; (b)
Admit Attached Motion for Reconsideration; and (c) If Necessary, Set the Instant Case for Oral
Arguments.2

On the same date, respondent COMELEC, through its Law Department, moved for the
reconsideration of the aforesaid December 1, 2009 Decision. 3
Expressing a similar desire, Franklin M. Drilon, a former senator and a senatorial candidate in the
2010 elections, filed, on December 17, 2009, his Motion for Leave to Intervene and to Admit the
Attached Motion for Reconsideration in Intervention. 4

On December 28, 2009, the Integrated Bar of the Philippines (IBP), Cebu City Chapter, also filed its
Motion for Leave to Intervene5 and Motion for Reconsideration in Intervention. 6

In a related development, on January 8, 2010, the Office of the Solicitor General (OSG), which
initially represented the COMELEC in the proceedings herein, this time disagreed with the latter,
and, instead of moving for the reconsideration of the December 1, 2009 Decision, moved for
clarification of the effect of our declaration of unconstitutionality. 7

Subsequently, Tom V. Apacible, a congressional candidate in the 2010 elections, filed, on January
11, 2010, his Motion to Intervene and for the Reconsideration of the Decision dated December 1,
2009.8

In its January 12, 2010 Resolution, 9 the Court required petitioners to comment on the aforesaid
motions.

On February 1, 2010, petitioners filed their consolidated comment on the motions.

Parenthetically, petitioner Quinto admitted that he did not pursue his plan to run for an elective
office.10 Petitioner Tolentino, on the other hand, disclosed that he filed his certificate of candidacy but
that he had recently resigned from his post in the executive department. These developments could
very well be viewed by the Court as having rendered this case moot and academic. However, I
refuse to proceed to such a conclusion, considering that the issues, viewed in relation to other
appointive civil servants running for elective office, remain ubiquitously present. Thus, the issues in
the instant case could fall within the classification of controversies that are capable of repetition yet
evading review.

I then implore that the Court rule on the motions.

The intervention

The motions for intervention should be denied. Section 2, Rule 19 of the Rules of Court explicitly
states that motions to intervene may be filed at any time "before the rendition of
judgment."11 Obviously, as this Court already rendered judgment on December 1, 2009, intervention
may no longer be allowed. 12 The movants, Roxas, Drilon, IBP-Cebu City Chapter, and Apacible,
cannot claim to have been unaware of the pendency of this much publicized case. They should have
intervened prior to the rendition of this Court’s Decision on December 1, 2009. To allow their
intervention at this juncture is unwarranted and highly irregular. 13

While the Court has the power to suspend the application of procedural rules, I find no compelling
reason to excuse movants’ procedural lapse and allow their much belated intervention. Further, a
perusal of their pleadings-in-intervention reveals that they merely restated the points and arguments
in the earlier dissenting opinions of Chief Justice Puno and Senior Associate Justices Carpio and
Carpio Morales. These very same points, incidentally, also constitute the gravamen of the motion for
reconsideration filed by respondent COMELEC. Thus, even as the Court should deny the motions
for intervention, it is necessary to, pass upon the issues raised therein, because they were the same
issues raised in respondent COMELEC’s motion for reconsideration.
 The COMELEC’s motion for reconsideration

Interestingly, in its motion for reconsideration, the COMELEC does not raise a matter other than
those already considered and discussed by the Court in the assailed decision. As aforesaid, the
COMELEC merely echoed the arguments of the dissenters.

I remain unpersuaded.

I wish to reiterate the Court’s earlier declaration that the second proviso in the third paragraph of
Section 13 of R.A. No. 9369, Section 66 of the OEC and Section 4(a) of COMELEC Resolution No.
8678 are unconstitutional for being violative of the equal protection clause and for being overbroad.

In considering persons holding appointive positions as ipso facto resigned from their posts upon the
filing of their certificates of candidacy (CoCs), but not considering as resigned all other civil servants,
specifically the elective ones, the law unduly discriminates against the first class. The fact alone that
there is substantial distinction between the two classes does not justify such disparate treatment.
Constitutional law jurisprudence requires that the classification must and should be germane to the
purposes of the law. As clearly explained in the assailed decision, whether one holds an appointive
office or an elective one, the evils sought to be prevented by the measure remain. Indeed, a
candidate, whether holding an appointive or an elective office, may use his position to promote his
candidacy or to wield a dangerous or coercive influence on the electorate. Under the same scenario,
he may also, in the discharge of his official duties, be swayed by political considerations. Likewise,
he may neglect his or her official duties, as he will predictably prioritize his campaign. Chief Justice
Puno, in his dissent to the assailed decision, even acknowledges that the "danger of systemic
abuse" remains present whether the involved candidate holds an appointive or an elective office,
thus—

Attempts by government employees to wield influence over others or to make use of their respective
positions (apparently) to promote their own candidacy may seem tolerable—even innocuous—
particularly when viewed in isolation from other similar attempts by other government employees.
Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous
possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on
the part of a reigning political party to advance its own agenda through a "carefully orchestrated use
of [appointive and/or elective] officials" coming from various levels of the bureaucracy. 14

To repeat for emphasis, classifying candidates, whether they hold appointive or elective positions,
and treating them differently by considering the first as ipso facto resigned while the second as not,
is not germane to the purposes of the law, because, as clearly shown, the measure is not
reasonably necessary to, nor does it necessarily promote, the fulfillment of the state interest sought
to be served by the statute.

In fact, it may not be amiss to state that, more often than not, the elective officials, not the appointive
ones, exert more coercive influence on the electorate, with the greater tendency to misuse the
powers of their office. This is illustrated by, among others, the proliferation of "private armies"
especially in the provinces. It is common knowledge that "private armies" are backed or even formed
by elective officials precisely for the latter to ensure that the electorate will not oppose them, be
cowed to submit to their dictates and vote for them. To impose a prohibitive measure intended to
curb this evil of wielding undue influence on the electorate and apply the prohibition only on
appointive officials is not only downright ineffectual, but is also, as shown in the assailed decision,
offensive to the equal protection clause.
Furthermore, as the Court explained in the assailed decision, this ipso facto resignation rule is
overbroad. It covers all civil servants holding appointive posts without distinction, regardless of
whether they occupy positions of influence in government or not. Certainly, a utility worker, a
messenger, a chauffeur, or an industrial worker in the government service cannot exert the same
influence as that of a Cabinet member, an undersecretary or a bureau head. Parenthetically, it is
also unimaginable how an appointive utility worker, compared to a governor or a mayor, can form his
own "private army" to wield undue influence on the electorate. It is unreasonable and excessive,
therefore, to impose a blanket prohibition—one intended to discourage civil servants from using their
positions to influence the votes—on all civil servants without considering the nature of their positions.
Let it be noted, that, despite their employment in the government, civil servants remain citizens of
the country, entitled to enjoy the civil and political rights granted to them in a democracy, including
the right to aspire for elective public office.

In addition, this general provision on automatic resignation is directed to the activity of seeking any
and all public elective offices, whether partisan or nonpartisan in character, whether in the national,
municipal or barangay level. No compelling state interest has been shown to justify such a broad,
encompassing and sweeping application of the law.

It may also be pointed out that this automatic resignation rule has no pretense to be the exclusive
and only available remedy to curb the uncontrolled exercise of undue influence and the feared
"danger of systemic abuse." As we have explained in the assailed decision, our Constitution and our
body of laws are replete with provisions that directly address these evils. We reiterate our earlier
pronouncement that specific evils require specific remedies, not overly broad measures that unduly
restrict guaranteed freedoms.

It should be stressed that when the Court struck down (in the earlier decision) the assailed
provisions, the Court did not act in a manner inconsistent with Section 2(4) of Article IX-B of the
Constitution, which reads:

Sec. 2. x x x.

(4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering
or partisan political activity.

or with Section 5(3), Article XVI of the Constitution, which reads:

Sec. 5. x x x.

(3) Professionalism in the armed forces and adequate remuneration and benefits of its members
shall be a prime concern of the State. The armed forces shall be insulated from partisan politics.

No member of the military shall engage, directly or indirectly, in any partisan political activity, except
to vote.

Neither does the Court’s earlier ruling infringe on Section 55, Chapter 8, Title I, Book V of the
Administrative Code of 1987, which reads:

Sec. 55. Political Activity.—No officer or employee in the Civil Service including members of the
Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any
election except to vote nor shall he use his official authority or influence to coerce the political activity
of any other person or body. Nothing herein provided shall be understood to prevent any officer or
employee from expressing his views on current political problems or issues, or from mentioning the
names of candidates for public office whom he supports: Provided, That public officers and
employees holding political offices may take part in political and electoral activities but it shall be
unlawful for them to solicit contributions from their subordinates or subject them to any of the acts
involving subordinates prohibited in the Election Code.

"Partisan political activity" includes every form of solicitation of the elector’s vote in favor of a specific
candidate.15Section 79(b) of the OEC defines "partisan political activity" as follows:

SEC. 79. Definitions.—As used in this Code:

xxxx

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

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

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

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

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

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

The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants
for nominations for candidacy to a public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan political activity.

Public expressions or opinions or discussions of probable issues in a forthcoming election or on

attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming
political party convention shall not be construed as part of any election campaign or partisan political
activity contemplated under this Article.

Given the aforequoted Section 79(b), it is obvious that the filing of a Certificate of Candidacy (CoC)
for an elective position, while it may be a political activity, is not a "partisan political activity" within
the contemplation of the law. The act of filing is only an announcement of one’s intention to run for
office. It is only an aspiration for a public office, not yet a promotion or a solicitation of votes for the
election or defeat of a candidate for public office. In fact, even after the filing of the CoC but before
the start of the campaign period, there is yet no candidate whose election or defeat will be promoted.
Rosalinda A. Penera v. Commission on Elections and Edgar T. Andanar 16instructs that any person
who files his CoC shall only be considered a candidate at the start of the campaign period. Thus, in
the absence of a "candidate," the mere filing of CoC cannot be considered as an "election campaign"
or a "partisan political activity." Section 79 of the OEC does not even consider as "partisan political
activity" acts performed for the purpose of enhancing the chances of aspirants for nominations for
candidacy to a public office. Thus, when appointive civil servants file their CoCs, they are not
engaging in a "partisan political activity" and, therefore, do not transgress or violate the Constitution
and the law. Accordingly, at that moment, there is no valid basis to consider them as ipso facto
resigned from their posts.

There is a need to point out that the discussion in Fariñas v. The Executive Secretary, 17 relative to
the differential treatment of the two classes of civil servants in relation to the ipso facto resignation
clause, is obiter dictum. That discussion is not necessary to the decision of the case, the main issue
therein being the constitutionality of the repealing clause in the Fair Election Act. Further, unlike in
the instant case, no direct challenge was posed in Fariñas to the constitutionality of the rule on the
ipso facto resignation of appointive officials. In any event, the Court en banc, in deciding subsequent
cases, can very well reexamine, as it did in the assailed decision, its earlier pronouncements and
even abandon them when perceived to be incorrect.

Let it also be noted that Mancuso v. Taft 18 is not the heart of the December 1, 2009 Decision.
Mancuso was only cited to show that resign-to-run provisions, such as those which are specifically
involved herein, have been stricken down in the United States for unduly burdening First
Amendment rights of employees and voting rights of citizens, and for being overbroad. Verily, in our
jurisdiction, foreign jurisprudence only enjoys a persuasive influence on the Court. Thus, the
contention that Mancuso has been effectively overturned by subsequent American cases, such as
United States Civil Service Commission v. National Association of Letter Carriers 19 and Broadrick v.
State of Oklahoma,20 is not controlling.

Be that as it may, a closer reading of these latter US cases reveals that Mancuso is still applicable.

On one hand, Letter Carriers and Broadrick, which are based on United Public Workers of America
v. Mitchell,21involve provisions prohibiting Federal employees from engaging in partisan political
activities or political campaigns.

In Mitchell, the appellants sought exemption from the implementation of a sentence in the Hatch Act,
which reads: "No officer or employee in the executive branch of the Federal Government x x x shall
take any active part in political management or in political campaigns." 22 Among the appellants, only
George P. Poole violated the provision 23 by being a ward executive committeeman of a political party
and by being politically active on election day as a worker at the polls and a paymaster for the
services of other party workers.24

In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Act’s prohibition against "active participation in political
management or political campaigns." The plaintiffs desired to campaign for candidates for public
office, to encourage and get federal employees to run for state and local offices, to participate as
delegates in party conventions, and to hold office in a political club. 25

In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the
Oklahoma’s Merit System of Personnel Administration Act restricting the political activities of the
State’s classified civil servants, in much the same manner as the Hatch Act proscribed partisan
political activities of federal employees.26 Prior to the commencement of the action, the appellants
actively participated in the 1970 reelection campaign of their superior, and were administratively
charged for asking other Corporation Commission employees to do campaign work or to give
referrals to persons who might help in the campaign, for soliciting money for the campaign, and for
receiving and distributing campaign posters in bulk. 27
Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth
Mancuso, a full-time police officer and classified civil service employee of the City of Cranston, filed
his candidacy for nomination as representative to the Rhode Island General Assembly. The Mayor of
Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule
Charter.28

Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a
different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of
Mancuso. Thus, in Magill v. Lynch,29 the same collegial court which decided Mancuso was so careful
in its analysis that it even remanded the case for consideration on the overbreadth claim. The Magill
court stated thus-

Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the
opportunity to demonstrate that the charter forecloses access to a significant number of offices, the
candidacy for which by municipal employees would not pose the possible threats to government
efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant.
Accordingly, we remand for consideration of plaintiffs’ overbreadth claim. 30

As observed by the Court (citing Clements v. Fashing 31) in the December 1, 2009 Decision, U.S.
courts, in subsequent cases, sustained the constitutionality of resign-to-run rules when applied to
specified or particular officials, as distinguished from all others, under a classification that is germane
to the purposes of the law. These resign-to-run legislations were not expressed in a general and
sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the
second requisite for a valid classification. Directed, as they were, to particular officials, they were not
overly encompassing as to be overbroad. In fact, Morial v. Judiciary Commission of the State of
Louisiana,32 where the resign-to-run provision pertaining to judges running for political offices was
upheld, declares that "there is no blanket approval of restriction on the right of public employees to
become candidates for public office."33 The Morial court instructed thus—

Because the judicial office is different in key respects from other offices, the state may regulate its
judges with the differences in mind. For example the contours of the judicial function make
inappropriate the same kind of particularized pledges of conduct in office that are the very stuff of
campaigns for most non-judicial offices. A candidate for the mayoralty can and often should
announce his determination to effect some program, to reach a particular result on some question of
city policy, or to advance the interests of a particular group. It is expected that his decisions in office
may be predetermined by campaign commitment. Not so the candidate for judicial office. He cannot,
consistent with the proper exercise of his judicial powers, bind himself to decide particular cases in
order to achieve a given programmatic result. Moreover, the judge acts on individual cases and not
broad programs. The judge legislates but interstitially; the progress through the law of a particular
judge's social and political preferences is, in Mr. Justice Holmes' words, "confined from molar to
molecular motions."

As one safeguard of the special character of the judicial function, Louisiana's Code of Judicial
Conduct bars candidates for judicial office from making "pledges or promises of conduct in office
other than the faithful and impartial performance of the duties of the office." Candidates for non-
judicial office are not subject to such a ban; in the conduct of his campaign for the mayoralty, an
erstwhile judge is more free to make promises of post-campaign conduct with respect both to issues
and personnel, whether publicly or privately, than he would be were he a candidate for re-election to
his judgeship. The state may reasonably conclude that such pledges and promises, though made in
the course of a campaign for non-judicial office, might affect or, even more plausibly, appear to affect
the post-election conduct of a judge who had returned to the bench following an electoral defeat. By
requiring resignation of any judge who seeks a non-judicial office and leaving campaign conduct
unfettered by the restrictions which would be applicable to a sitting judge, Louisiana has drawn a line
which protects the state's interests in judicial integrity without sacrificing the equally important
interests in robust campaigns for elective office in the executive or legislative branches of
government.

This analysis applies equally to the differential treatment of judges and other office holders. A judge
who fails in his bid for a post in the state legislature must not use his judgeship to advance the cause
of those who supported him in his unsuccessful campaign in the legislature. In contrast, a member of
the state legislature who runs for some other office is not expected upon his return to the legislature
to abandon his advocacy of the interests which supported him during the course of his unsuccessful
campaign. Here, too, Louisiana has drawn a line which rests on the different functions of the judicial
and non-judicial office holder. 34

Indeed, for an ipso facto resignation rule to be valid, it must be shown that the classification is
reasonably necessary to attain the objectives of the law. Here, as already explained in the assailed
decision, the differential treatment in the application of this resign-to-run rule is not germane to the
purposes of the law, because whether one holds an appointive office or an elective one, the evils
sought to be prevented are not effectively addressed by the measure. Thus, the ineluctable
conclusion that the concerned provisions are invalid for being unconstitutional.

Without unnecessarily preempting the resolution of any subsequent actual case or unwittingly giving
an advisory opinion, the Court, in the December 1, 2009 Decision, in effect, states that what should
be implemented are the other provisions of Philippine laws (not the concerned unconstitutional
provisions) that specifically and directly address the evils sought to be prevented by the measure. It
is highly speculative then to contend that members of the police force or the armed forces, if they will
not be considered as resigned when they file their COCs, is a "disaster waiting to happen." There
are, after all, appropriate laws in place to curb abuses in the government service.

The invalidation of the ipso facto resignation provisions does not mean the cessation in operation of
other provisions of the Constitution and of existing laws. Section 2(4) of Article IX-B and Section
5(3), Article XVI of the Constitution, and Section 55, Chapter 8, Title I, Book V of the Administrative
Code of 1987 still apply. So do other statutes, such as the Civil Service Laws, OEC, the Anti-Graft
Law, the Code of Conduct and Ethical Standards for Public Officials and Employees, and related
laws. Covered civil servants running for political offices who later on engage in "partisan political
activity" run the risk of being administratively charged. 35 Civil servants who use government funds
and property for campaign purposes, likewise, run the risk of being prosecuted under the Anti-Graft
and Corrupt Practices Act or under the OEC on election offenses. Those who abuse their authority
to promote their candidacy shall be made liable under the appropriate laws. Let it be stressed at this
point that the said laws provide for specific remedies for specific evils, unlike the automatic
resignation provisions that are sweeping in application and not germane to the purposes of the law.

To illustrate, we hypothetically assume that a municipal election officer, who is an employee of the
COMELEC, files his CoC. Given the invalidation of the automatic resignation provisions, the said
election officer is not considered as ipso facto resigned from his post at the precise moment of the
filing of the CoC. Thus, he remains in his post, and his filing of a CoC cannot be taken to be a
violation of any provision of the Constitution or any statute. At the start of the campaign period,
however, if he is still in the government service, that is, if he has not voluntarily resigned, and he, at
the same time, engages in a "partisan political activity," then, he becomes vulnerable to prosecution
under the Administrative Code, under civil service laws, under the Anti-Graft and Corrupt Practices
Act or under the OEC. Upon the proper action being filed, he could, thus, be disqualified from
running for office, or if elected, prevented from assuming, or if he had already assumed office, be
removed from, office.
At this juncture, it may even be said that Mitchell, Letter Carriers and Broadrick, the cases earlier
cited by Chief Justice Puno and Associate Justices Carpio and Carpio-Morales, support the
proposition advanced by the majority in the December 1, 2009 Decision. While the provisions on the
ipso facto resignation of appointive civil servants are unconstitutional for being violative of the equal
protection clause and for being overbroad, the general provisions prohibiting civil servants from
engaging in "partisan political activity" remain valid and operational, and should be strictly applied.

The COMELEC’s motion for reconsideration should, therefore, be denied.

The OSG’s motion for clarification

In its motion, the OSG pleads that this Court clarify whether, by declaring as unconstitutional the
concerned ipso facto resignation provisions, the December 1, 2009 Decision intended to allow
appointive officials to stay in office during the entire election period. 36 The OSG points out that the
official spokesperson of the Court explained before the media that "the decision would in effect allow
appointive officials to stay on in their posts even during the campaign period, or until they win or lose
or are removed from office."37

I pose the following response to the motion for clarification. The language of the December 1, 2009
Decision is too plain to be mistaken. The Court only declared as unconstitutional Section 13 of R.A.
No. 9369, Section 66 of the OEC and Section 4(a) of COMELEC Resolution No. 8678. The Court
never stated in the decision that appointive civil servants running for elective posts are allowed to
stay in office during the entire election period.

The only logical and legal effect, therefore, of the Court’s earlier declaration of unconstitutionality of
the ipso facto resignation provisions is that appointive government employees or officials who intend
to run for elective positions are not considered automatically resigned from their posts at the moment
of filing of their CoCs. Again, as explained above, other Constitutional and statutory provisions do
not cease in operation and should, in fact, be strictly implemented by the authorities.

Let the full force of the laws apply. Then let the axe fall where it should.

ANTONIO EDUARDO B. NACHURA

Associate Justice

Footnotes

1
 Rollo, p. 122.

2
 Id. at 210-215.

3
 Id. at 236.

4
 Id. at 265-270.

5
 Id. at 310-311.

6
 Id. at 315-322.
7
 Id. at 326-329.

8
 Id. at 333-374.

9
 Id. at 386-388.

 Petitioner Quinto was appointed, and on January 13, 2010, took his oath of office as Acting
10

Secretary of the Department of Environment and Natural Resources (DENR). Subsequently, as

reported in the February 11, 2010 issue of Philippine Daily Inquirer, he was appointed as Director
General of the Presidential Coalition Affairs Office.

11
 Rule 19, Section 2 provides in full:

SEC. 2. Time to intervene.—The motion to intervene may be filed at any time before rendition of
judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and
served on the original parties.

 Associated Bank (now United Overseas Bank [Phils.]) v. Spouses Rafael and Monaliza
12

Pronstroller, G.R. No. 148444, September 3, 2009; Chavez v. Presidential Commission on Good
Government, 366 Phil. 863, 867 (1999).

 Sofia Aniosa Salandanan v. Spouses Ma. Isabel and Bayani Mendez, G.R. No. 160280, March 13,
13

2009; Republic v. Gingoyon, G.R. No. 166429, February 1, 2006, 481 SCRA 457, 470.

14
 Dissenting Opinion of Chief Justice Puno, p. 63. (Italics supplied.)

 Bernas, The 1987 Constitution of the Republic of the Philippines, A Commentary (2003 ed.), p.
15

1026, citing People v. de Venecia, 14 SCRA 864, 867.

16
 G.R. No. 181613, November 25, 2009.

17
 463 Phil. 179, 205-208 (2003).

18
 476 F.2d 187, 190 (1973).

19
 413 U.S. 548 (1973).

20
 413 U.S. 601 (1973).

21
 330 U.S. 75 (1947).

22
 Id. at 82.

23
 Id. at 83.

24
 Id. at 94.

25
 Supra note 19, at 551-552.

26
 Supra note 20, at 602.
27
 Id. at 609.

28
 Supra note 18, at 188-189.

29
 560 F. 2d 22 (1977).

30
 Id. at 30-31.

31
 457 U.S. 957; 102 S.Ct. 2836 (1982).

32
 565 F. 2d 295 (1977).

33
 Id. at 306.

34
 Id. at 305-306. (Citations omitted.)

 The constitutional proscription on engagement by members of the military in partisan political

35

activity applies only to those in the active military service, not to reservists (Cailles v. Bonifacio, 65
Phil. 328 [1938]). The same proscription relating to civil servants does not also extend to members
of the Cabinet as their positions are essentially political (Santos v. Yatco, G.R. No. L-16133,
November 6, 1959, 55 O.G. 8641-8642).

36
 Rollo, p. 323.

37
 Id. at 327.

THIRD DIVISION

G.R. No. 176006               March 26, 2010

NATIONAL POWER CORPORATION, Petitioner, 

vs.
PINATUBO COMMERCIAL, represented by ALFREDO A. DY, Respondent.

DECISION

CORONA, J.:

The National Power Corporation (NPC)1 questions the decision dated June 30, 2006 rendered by the
Regional Trial Court (RTC) of Mandaluyong City, Branch 213 declaring items 3 and 3.1 of NPC
Circular No. 99-75 unconstitutional. The dispositive portion of the decision provides:

WHEREFORE then, in view of the foregoing, judgment is hereby rendered declaring item[s] 3 and
3.1 of NAPOCOR Circular No. 99-75, which [allow] only partnerships or corporations that

directly use aluminum as the raw material in producing finished products either purely or partly out of
aluminum, to participate in the bidding for the disposal of ACSR wires as unconstitutional for being
violative of substantial due process and the equal protection clause of the Constitution as well as for
restraining competitive free trade and commerce.
The claim for attorney’s fees is denied for lack of merit.

No costs.

SO ORDERED.2

NPC also assails the RTC resolution dated November 20, 2006 denying its motion for
reconsideration for lack of merit. 3

In this petition, NPC poses the sole issue for our review:

WHETHER OR NOT THE RTC GRAVELY ERRED WHEN IT DECLARED ITEMS 3 AND 3.1 OF
NAPOCOR CIRCULAR NO. 99-75 AS UNCONSTITUTIONAL FOR BEING VIOLATIVE OF
SUBSTANTIAL DUE PROCESS AND THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION AS WELL AS FOR RESTRAINING COMPETITIVE FREE TRADE AND
COMMERCE.4

NPC Circular No. 99-755 dated October 8, 1999 set the guidelines in the "disposal of scrap aluminum
conductor steel-reinforced or ACSRs in order to decongest and maintain good housekeeping in NPC
installations and to generate additional income for NPC." Items 3 and 3.1 of the circular provide:

3. QUALIFIED BIDDERS

3.1 Qualified bidders envisioned in this circular are partnerships or corporations that directly use
aluminum as the raw material in producing finished products either purely or partly out of aluminum,
or their duly appointed representatives. These bidders may be based locally or overseas. 6

In April 2003, NPC published an invitation for the pre-qualification of bidders for the public sale of its
scrap ACSR7cables. Respondent Pinatubo Commercial, a trader of scrap materials such as copper,
aluminum, steel and other ferrous and non-ferrous materials, submitted a pre-qualification form to
NPC. Pinatubo, however, was informed in a letter dated April 29, 2003 that its application for pre-
qualification had been denied. 8 Petitioner asked for reconsideration but NPC denied it.9

Pinatubo then filed a petition in the RTC for the annulment of NPC Circular No. 99-75, with a prayer
for the issuance of a temporary restraining order and/or writ of preliminary injunction. 10 Pinatubo
argued that the circular was unconstitutional as it violated the due process and equal protection
clauses of the Constitution, and ran counter to the government policy of competitive public bidding. 11

The RTC upheld Pinatubo’s position and declared items 3 and 3.1 of the circular unconstitutional.
The RTC ruled that it was violative of substantive due process because, while it created rights in
favor of third parties, the circular had not been published. It also pronounced that the circular
violated the equal protection clause since it favored manufacturers and processors of aluminum
scrap vis-à-vis dealers/traders in the purchase of aluminum ACSR cables from NPC. Lastly, the RTC
found that the circular denied traders the right to exercise their business and restrained free
competition inasmuch as it allowed only a certain sector to participate in the bidding. 12

In this petition, NPC insists that there was no need to publish the circular since it was not of general
application. It was addressed only to particular persons or class of persons, namely the disposal
committees, heads of offices, regional and all other officials involved in the disposition of ACSRs.
NPC also contends that there was a substantial distinction between manufacturers and traders of
aluminum scrap materials specially viewed in the light of RA 7832. 13 According to NPC, by limiting
the prospective bidders to manufacturers, it could easily monitor the market of its scrap ACSRs.
There was rampant fencing of stolen NPC wires. NPC likewise maintains that traders were not
prohibited from participating in the pre-qualification as long as they had a tie-up with a
manufacturer.14

The questions that need to be resolved in this case are:

(1) whether NPC Circular No. 99-75 must be published; and

(2) whether items 3 and 3.1 of NPC Circular No. 99-75 -

(a) violated the equal protection clause of the Constitution and

(b) restrained free trade and competition.

Tañada v. Tuvera15 stressed the need for publication in order for statutes and administrative rules
and regulations to have binding force and effect, viz.:

x x x all statutes, including those of local application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days after publication unless a different
effectivity is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in
the exercise of legislative power or, at present, directly conferred by the Constitution. Administrative
Rules and Regulations must also be published if their purpose is to enforce or implement existing
law pursuant also to a valid delegation.16

Tañada, however, qualified 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. Neither is publication
required of the so-called letters of instructions issued by administrative superiors concerning the
rules or guidelines to be followed by their subordinates in the performance of their
duties.17 (emphasis ours)

In this case, NPC Circular No. 99-75 did not have to be published since it was merely an internal rule
or regulation. It did not purport to enforce or implement an existing law but was merely a directive
issued by the NPC President to his subordinates to regulate the proper and efficient disposal of
scrap ACSRs to qualified bidders. Thus, NPC Circular No. 99-75 defined the responsibilities of the
different NPC personnel in the disposal, pre-qualification, bidding and award of scrap ACSRS. 18 It
also provided for the deposit of a proposal bond to be submitted by bidders, the approval of the
award, mode of payment and release of awarded scrap ACSRs. 19 All these guidelines were
addressed to the NPC personnel involved in the bidding and award of scrap ACSRs. It did not, in
any way, affect the rights of the public in general or of any other person not involved in the bidding
process. Assuming it affected individual rights, it did so only remotely, indirectly and incidentally.

Pinatubo’s argument that items 3 and 3.1 of NPC Circular No. 99-75 deprived it of its "right to bid" or
that these conferred such right in favor of a third person is erroneous. Bidding, in its comprehensive
sense, means making an offer or an invitation to prospective contractors whereby the government
manifests its intention to invite proposals for the purchase of supplies, materials and equipment for
official business or public use, or for public works or repair. 20 Bidding rules may specify other
conditions or require that the bidding process be subjected to certain reservations or
qualifications.21 Since a bid partakes of the nature of an offer to contract with the government, 22 the
government agency involved may or may not accept it. Moreover, being the owner of the property
subject of the bid, the government has the power to determine who shall be its recipient, as well as
under what terms it may be awarded. In this sense, participation in the bidding process is a privilege
inasmuch as it can only be exercised under existing criteria imposed by the government itself. As
such, prospective bidders, including Pinatubo, cannot claim any demandable right to take part in it if
they fail to meet these criteria. Thus, it has been stated that under the traditional form of property
ownership, recipients of privileges or largesse from the government cannot be said to have property
rights because they possess no traditionally recognized proprietary interest therein. 23

Also, as the discretion to accept or reject bids and award contracts is of such wide latitude, courts
will not interfere, unless it is apparent that such discretion is exercised arbitrarily, or used as a shield
to a fraudulent award. The exercise of that discretion is a policy decision that necessitates prior
inquiry, investigation, comparison, evaluation, and deliberation. This task can best be discharged by
the concerned government agencies, not by the courts. Courts will not interfere with executive or
legislative discretion exercised within those boundaries. Otherwise, they stray into the realm of policy
decision-making.24

Limiting qualified bidders in this case to partnerships or corporations that directly use aluminum as
the raw material in producing finished products made purely or partly of aluminum was an exercise
of discretion by the NPC. Unless the discretion was exercised arbitrarily or used as a subterfuge for
fraud, the Court will not interfere with the exercise of such discretion.

This brings to the fore the next question: whether items 3 and 3.1 of NPC Circular No. 99-75 violated
the equal protection clause of the Constitution.

The equal protection clause means that "no person or class of persons shall be deprived of the
same protection of laws which is enjoyed by other persons or other classes in the same place and in
like circumstances."25 The guaranty of the equal protection of the laws is not violated by a legislation
based on a reasonable classification. 26The equal protection clause, therefore, does not preclude
classification of individuals who may be accorded different treatment under the law as long as the
classification is reasonable and not arbitrary.271avvphi1

Items 3 and 3.1 met the standards of a valid classification. Indeed, as juxtaposed by the RTC, the
purpose of NPC Circular No. 99-75 was to dispose of the ACSR wires. 28 As stated by Pinatubo, it
was also meant to earn income for the government. 29 Nevertheless, the disposal and revenue-
generating objective of the circular was not an end in itself and could not bar NPC from imposing
conditions for the proper disposition and ultimately, the legitimate use of the scrap ACSR wires. In
giving preference to direct manufacturers and producers, it was the intent of NPC to support RA
7832, which penalizes the theft of ACSR in excess of 100 MCM. 30 The difference in treatment
between direct manufacturers and producers, on one hand, and traders, on the other, was
rationalized by NPC as follows:

x x x NAPOCOR can now easily monitor the market of its scrap ACSR wires and verify whether or
not a person’s possession of such materials is legal or not; and consequently, prosecute under R.A.
7832, those whose possession, control or custody of such material is unexplained. This is based
upon the reasonable presumption that if the buyer were a manufacturer or processor, the scrap
ACSRs end with him as the latter uses it to make finished products; but if the buyer were a trader,
there is greater probability that the purchased materials may pass from one trader to another.
Should traders without tie-up to manufacturers or processors of aluminum be allowed to participate
in the bidding, the ACSRs bidded out to them will likely co-mingle with those already proliferating in
the illegal market. Thus, great difficulty shall be encountered by NAPOCOR and/or those authorities
tasked to implement R.A. 7832 in determining whether or not the ACSRs found in the possession,
control and custody of a person suspected of theft [of] electric power transmission lines and
materials are the fruit of the offense defined in Section 3 of R.A. 7832. 31

Items 3 and 3.1 clearly did not infringe on the equal protection clause as these were based on a
reasonable classification intended to protect, not the right of any business or trade but the integrity of
government property, as well as promote the objectives of RA 7832. Traders like Pinatubo could not
claim similar treatment as direct manufacturers/processors especially in the light of their failure to
negate the rationale behind the distinction.

Finally, items 3 and 3.1 of NPC Circular No. 99-75 did not restrain free trade or competition.

Pinatubo contends that the condition imposed by NPC under items 3 and 3.1 violated the principle of
competitiveness advanced by RA 9184 (Government Procurement Reform Act) which states:

SEC. 3. Governing Principles on Government Procurement. – All procurement of the national

government, its departments, bureaus, offices and agencies, including state universities and
colleges, government-owned and/or controlled corporations, government financial institutions and
local government units, shall, in all cases, be governed by these principles:

xxx

(b) Competitiveness by extending equal opportunity to enable private contracting parties who
are eligible andqualified to participate in public bidding. (emphasis ours)

The foregoing provision imposed the precondition that the contracting parties should
be eligible and qualified. It should be emphasized that the bidding process was not a "free-for-all"
where any and all interested parties, qualified or not, could take part. Section 5(e) of RA 9184
defines competitive bidding as a "method of procurement which is open to participation by any
interested party and which consists of the following processes: advertisement, pre-bid
conference, eligibility screening of prospective bidders, receipt and opening of bids, evaluation
of bids, post-qualification, and award of contract x x x." The law categorically mandates that
prospective bidders are subject to eligibility screening, and as earlier stated, bidding rules may
specify other conditions or order that the bidding process be subjected to certain reservations or
qualifications.32 Thus, in its pre-qualification guidelines issued for the sale of scrap ACSRs, the NPC
reserved the right to pre-disqualify any applicant who did not meet the requirements for pre-
qualification.33 Clearly, the competitiveness policy of a bidding process presupposes the eligibility
and qualification of a contestant; otherwise, it defeats the principle that only "responsible" and
"qualified" bidders can bid and be awarded government contracts. 34 Our free enterprise system is not
based on a market of pure and unadulterated competition where the State pursues a strict hands-off
policy and follows the let-the-devil-devour-the-hindmost rule. 35

Moreover, the mere fact that incentives and privileges are granted to certain enterprises to the
exclusion of others does not render the issuance unconstitutional for espousing unfair
competition.36 While the Constitution enshrines free enterprise as a policy, it nonetheless reserves to
the government the power to intervene whenever necessary to promote the general welfare. 37 In the
present case, the unregulated disposal and sale of scrap ACSR wires will hamper the government’s
effort of curtailing the pernicious practice of trafficking stolen government property. This is an evil
sought to be prevented by RA 7832 and certainly, it was well within the authority of the NPC to
prescribe conditions in order to prevent it.
WHEREFORE, the petition is hereby GRANTED. The decision of the Regional Trial Court of
Mandaluyong City, Branch 213 dated June 30, 2006 and resolution dated November 20, 2006
are REVERSED and SET ASIDE. Civil Case No. MC-03-2179 for the annulment of NPC Circular
No. 99-75 is hereby DISMISSED.

SO ORDERED.

RENATO C. CORONA
Associate Justice
Chairperson

WE CONCUR:

PRESBITERO J. VELASCO, JR. DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN *
JOSE CATRAL MENDOZA
Associate Justice Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court’s Division.

ANTONIO T. CARPIO
Acting Chief Justice

Footnotes

*
 Additional member per raffle dated March 24, 2010 in lieu of Justice Antonio Eduardo B. Nachura.

1
 Represented by the Office of the Solicitor General.

2
 Rollo, p. 40.
3
 Id., p. 42.

4
 Id., p. 21.

5
 Subject: Implementing Guidelines Governing the Disposal Through Sale of SCRAP ACSRs.

6
 Rollo, p. 43.

7
 Aluminum conductor steel-reinforced.

8
 Rollo, p. 74.

9
 Id., p. 56.

10
 Docketed as Civil Case No. MC-03-2179.

11
 Rollo, pp. 56-59.

12
 Id., pp. 37-40.

 Republic Act No. 7832 or the Anti-Electricity and Electric Transmission Lines/Materials Pilferage
13

Act of 1994.

14
 Id., pp. 22-30.

15
 G.R. No. L-63915, 24 April 1985, 146 SCRA 446.

16
 Id., p. 453-454.

17
 Id., p. 454.

18
 Items 4.1 to 4.1.2 require Cost Center Heads to report either to the Chairman of the Central or
Regional Asset Management Sub-Committee (CAMSUC/RAMSUC) all available scrap ACSRs in
their respective area of responsibility; Items 4.2 to 4.2.5 tasked the Head Office Bidding and
Services Section and the Regional Materials Planning Services with the pre-qualification of
prospective bidders; Items 4.3 to 4.3.4 set the procedure in the public bidding to be conducted by the
CAMSUC or RAMSUC; and Items 4.4 to 4.4.4 direct the appraisal and coordination by the Asset
Disposal Section and its Regional Counterpart of the awarded scrap ACSRs.

19
 Items 5 to 8 and subsections.

 J.G. Summit Holdings, Inc. v. Court of Appeals, G.R. No. 124293, 24 September 2003, 412 SCRA
20

10, 31-32.

21
 Id., p. 32.

22
 Desierto v. Ocampo, G.R. No. 155419, 4 March 2005, 452 SCRA 789, 804.

 Terminal Facilities and Services Corporation v. Philippine Ports Authority, G.R. No. 135639, 27
23

February 2002, 378 SCRA 82, 106.

  Albay Accredited Constructors Association, Inc. v. Desierto, G.R. No. 133517, 30 January 2006,
24

480 SCRA 520, 533.

25
 Abakada Guro Party List v. Ermita, G.R. No. 168056, 1 September 2005, 469 SCRA 1, 139.

 Coconut Oil Refiners Association, Inc. v. Torres, G.R. No. 132527, 29 July 2005, 465 SCRA 47,
26

75.

27
 Ambros v. Commission on Audit, G.R. No. 159700, 30 June 2005, 462 SCRA 572, 597.

28
 Rollo, p. 39.

29
 Id., p. 206.

30
 Section 3 (a)(1) to (4), in relation to Section 3 (b)(2).

31
 Rollo, pp. 288-289.

32
 Supra, J.G. Summit Holdings, Inc., note 20.

33
 Rollo, p. 69.

 Supra, Desierto, note 22, citing National Power Corporation v. Philipp Brothers Oceanic, Inc.. 369
34

SCRA 629 (2001).

 Tatad v. Secretary of the Department of Energy, G.R. No. 124360, 5 November 1997, 281 SCRA
35

330, 357.

 Pest Management Association of the Philippines (PMAP) v. Fertilizer and Pesticide Authority
36

(FPA), G.R. No. 156041, 21 February 2007, 516 SCRA 360, 369.

37
 Ibid.