[G.R. No. 147066. March 26, 2001.
]
AKBAYAN — Youth, SCAP, UCSC, MASP, KOMPIL II
— Youth, ALYANSA, KALIPI, PATRICIA O. PICAR,
MYLA GAIL Z. TAMONDONG, EMMANUEL E. OMBAO,
JOHNNY ACOSTA, ARCHIE JOHN TALAUE, RYAN
DAPITAN, CHRISTOPHER OARDE, JOSE MARI
MODESTO, RICHARD M. VALENCIA, EDBEN
TABUCOL, Petitioners, v. COMMISSION ON
ELECTIONS, Respondent.
[G.R. No. 147179. March 26, 2001.]
MICHELLE D. BETITO, Petitioner, v. CHAIRMAN
ALFREDO BENIPAYO, COMMISSIONERS MEHOL
SADAIN, RUFINO JAVIER, LUZVIMINDA
TANCANGCO, RALPH LANTION, FLORENTINO
TUASON and RESURRECCION BORRA, all of the
Commission on Election (COMELEC), Respondents.
DECISION
BUENA, J.:
At the helm of controversy in the instant consolidated
petitions 1 before us is the exercise of a right so
indubitably cherished and accorded primacy, if not
utmost reverence, no less than by the fundamental law
— the right of suffrage.
chanrob1es virtua1 1aw 1ibrary
Invoking this right, herein petitioners — representing the
youth sector — seek to direct the Commission on
Elections (COMELEC) to conduct a special registration
before the May 14, 2001 General Elections, of new voters
ages 18 to 21. According to petitioners, around four
million youth failed to register on or before the December
27, 2000 deadline set by the respondent COMELEC under
Republic Act No. 8189. 2
Acting on the clamor of the students and civic leaders,
Senator Raul Roco, Chairman of the Committee on
Electoral Reforms, Suffrage, and People’s Participation,
through a Letter dated January 25, 2001, invited the
COMELEC to a public hearing for the purpose of
discussing the extension of the registration of voters to
accommodate those who were not able to register before
the COMELEC deadline. 3
Commissioners Luzviminda G. Tancangco and Ralph C.
Lantion, together with Consultant Resurreccion Z. Borra
(now Commissioner) attended the public hearing called
by the Senate Committee headed by Senator Roco, held
at the Senate, New GSIS Headquarters Bldg., Pasay City.
On January 29, 2001, Commissioners Tancangco and
Lantion submitted Memorandum No. 2001-027 on the
Report on the Request for a Two-day Additional
Registration of New Voters Only, excerpts of which are
hereto quoted:
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“Please be advised that the undersigned attended the
public hearing called by the Senate Committee on
Electoral Reforms, Suffrage and People’s Participation
presided over by the Hon. Sen. Raul Roco, its Committee
Chairman to date at the Senate, New GSIS Headquarters
Building, Pasay City. The main agenda item is the
request by youth organizations to hold additional two
days of registration. Thus, participating students and
civic leaders along with Comelec Representatives were in
agreement that is legally feasible to have a two-day
additional registration of voters to be conducted
preferably on February 17 and 18, 2001 nationwide. The
deadline for the continuing voters registration under R.A.
8189 is December 27, 2000.
“To address the concern that this may open the flood
parts for ‘hakot system,’ certain restrictive parameters
were discussed. The following guidelines to serve as
safeguards against fraudulent applicants:
“1. The applicants for the registration shall be 25 years of
age or less and will be registering for the first time on
May 14, 2001;
“2. The applicants shall register in their places of
residences; and
“3. The applicants shall present valid identification
documents, like school records.
“Preparatory to the registration days, the following
activities are likewise agreed:chanrob1es virtual 1aw library
“1. Submission of the list of students and their addresses
immediately prior to the actual registration of the
applicants;
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“2. The Comelec field officers will be given the
opportunity to verify the voters enumerator’s list or
conduct ocular inspection;
“3. Availability of funds for the purpose; and
“4. Meetings with student groups to ensure orderly and
honest conduct of the registration and drum up interest
to register among the new voters.
“The rationale for the additional two-day registration is
the renewed political awareness and interest to
participate in the political process generated by the
recent political events in the country among our youth.
Considering that they failed to register on December 27,
2000 deadline, they approved for special registration
days.
“In view of the foregoing, the Commission en banc has to
discuss all aspects regarding this request with directives
to the Finance Services Department (FSD) to submit
certified available funds for the purpose, and for the
Deputy Executive Director for Operations (DEDO) for the
estimated costs of additional two days of registration.
“The presence of REDs on January 30 can be used partly
for consultation on the practical side and logistical
requirements of such additional registration days. The
meeting will be set at 1:30 p.m. at the Office of ED.” 4
Immediately, Commissioner Borra called a consultation
meeting among regional heads and representatives and a
number of senior staff headed by Executive Director
Mamasapunod Aguam. It was the consensus of the
group, with the exception of Director Jose Tolentino, Jr.
of the ASD, to disapprove the request for additional
registration of voters on the ground that Section 8 of
R.A. 8189 explicitly provides that no registration shall be
conducted during the period starting one hundred twenty
(120) days before a regular election and that the
Commission has no more time left to accomplish all pre-
election activities. 5
On February 8, 2001, the COMELEC issued Resolution
No. 3584, the decretal portion of which reads: chanrob1es virtual 1aw library
“Deliberating on the foregoing memoranda, the
Commission RESOLVED, as it hereby RESOLVES, to deny
the request to conduct a two-day additional registration
of new voters on February 17 and 18, 2001.” chanrob1es virtua1 1aw 1ibrary
Commissioners Rufino S. B. Javier and Mehol K. Sadain
voted to deny the request while Commissioners
Luzviminda Tancangco and Ralph Lantion voted to
accommodate the students’ request. With this impasse,
the Commission construed its Resolution as having taken
effect.
Aggrieved by the denial, petitioners AKBAYAN-Youth,
SCAP, UCSC, MASP, KOMPIL II (YOUTH) Et. Al. filed
before this Court the instant Petition for Certiorari and
Mandamus, docketed as G.R. No. 147066, which seeks to
set aside and nullify respondent COMELEC’s Resolution
and/or to declare Section 8 of R.A. 8189 unconstitutional
insofar as said provision effectively causes the
disenfranchisement of petitioners and others similarly
situated. Likewise, petitioners pray for the issuance of a
writ of mandamus directing respondent COMELEC to
conduct a special registration of new voters and to admit
for registration petitioners and other similarly situated
young Filipinos to qualify them to vote in the May 14,
2001 General Elections.
On March 09, 2001, herein petitioner Michelle Betito, a
student of the University of the Philippines, likewise filed
a Petition for Mandamus, docketed as G.R. No. 147179,
praying that this Court direct the COMELEC to provide for
another special registration day under the continuing
registration provision under the Election Code.
On March 13, 2001, this Court resolved to consolidate
the two petitions and further required respondents to file
their Comment thereon within a non-extendible period
expiring at 10:00 A.M. of March 16, 2001. Moreover, this
Court resolved to set the consolidated cases for oral
arguments on March 16, 2001. 6
On March 16, 2001, the Solicitor General, in its
Manifestation and Motion in lieu of Comment,
recommended that an additional continuing registration
of voters be conducted at the soonest possible time “in
order to accommodate the disenfranchised voters for
purposes of the May 14, 2001 elections.”
In effect, the Court in passing upon the merits of the
present petitions, is tasked to resolve a two-pronged
issue focusing on respondent COMELEC’s issuance of the
assailed Resolution dated February 8, 2001, which
Resolution, Petitioners, by and large, argue to have
undermined their constitutional right to vote on the May
14, 2001 general elections and caused the
disenfranchisement of around four (4) million Filipinos of
voting age who failed to register before the registration
deadline set by the COMELEC.
Thus, this Court shall determine: chanrob1es virtual 1aw library
a) Whether or not respondent COMELEC committed grave
abuse of discretion in issuing COMELEC Resolution dated
February 8, 2001;
b) Whether or not this Court can compel respondent
COMELEC, through the extraordinary writ of mandamus,
to conduct a special registration of new voters during the
period between the COMELEC’s imposed December 27,
2000 deadline and the May 14, 2001 general elections.
The petitions are bereft of merit.
In a representative democracy such as ours, the right of
suffrage, although accorded a prime niche in the
hierarchy of rights embodied in the fundamental law,
ought to be exercised within the proper bounds and
framework of the Constitution and must properly yield to
pertinent laws skillfully enacted by the Legislature, which
statutes for all intents and purposes, are crafted to
effectively insulate such so cherished right from
ravishment and preserve the democratic institutions our
people have, for so long, guarded against the spoils of
opportunism, debauchery and abuse.
To be sure, the right of suffrage ardently invoked by
herein petitioners, is not at all absolute. Needless to say,
the exercise of the right of suffrage, as in the enjoyment
of all other rights, is subject to existing substantive and
procedural requirements embodied in our Constitution,
statute books and other repositories of law. Thus, as to
the substantive aspect, Section 1, Article V of the
Constitution provides:chanrob1es virtual 1aw library
“SECTION 1. SUFFRAGE MAY BE EXERCISED BY ALL
CITIZENS OF THE PHILIPPINES NOT OTHERWISE
DISQUALIFIED BY LAW, WHO ARE AT LEAST EIGHTEEN
YEARS OF AGE, AND WHO SHALL HAVE RESIDED IN THE
PHILIPPINES FOR AT LEAST ONE YEAR AND IN THE
PLACE WHEREIN THEY PROPOSE TO VOTE FOR AT LEAST
SIX MONTHS IMMEDIATELY PRECEDING THE ELECTION.
NO LITERACY, PROPERTY, OR OTHER SUBSTANTIVE
REQUIREMENT SHALL BE IMPOSED ON THE EXERCISE OF
SUFFRAGE.”
As to the procedural limitation, the right of a citizen to
vote is necessarily conditioned upon certain procedural
requirements he must undergo: among others, the
process of registration. Specifically, a citizen in order to
be qualified to exercise his right to vote, in addition to
the minimum requirements set by the fundamental
charter, is obliged by law to register, at present, under
the provisions of Republic Act No. 8189, otherwise known
as the “Voter’s Registration Act of 1996.” chanrob1es virtua1 1aw 1ibrary
Stated differently, the act of registration is an
indispensable precondition to the right of suffrage. For
registration is part and parcel of the right to vote and an
indispensable element in the election process. Thus,
contrary to petitioners’ argument, registration cannot
and should not be denigrated to the lowly stature of a
mere statutory requirement. Proceeding from the
significance of registration as a necessary requisite to the
right to vote, the State undoubtedly, in the exercise of its
inherent police power, may then enact laws to safeguard
and regulate the act of voter’s registration for the
ultimate purpose of conducting honest, orderly and
peaceful election, to the incidental yet generally
important end, that even pre-election activities could be
performed by the duly constituted authorities in a
realistic and orderly manner — one which is not
indifferent and so far removed from the pressing order of
the day and the prevalent circumstances of the times.
Viewed broadly, existing legal proscription and pragmatic
operational considerations bear great weight in the
adjudication of the issues raised in the instant petitions.
On the legal score, Section 8, of R.A. 8189, which
provides a system of continuing registration, is explicit,
to wit:
chanrob1es virtual 1aw library
“SECTION 8. System of Continuing Registration of
Voters. — The Personal filing of application of registration
of voters shall be conducted daily in the office of the
Election Officer during regular office hours. No
registration shall, however, be conducted during the
period starting one hundred twenty (120) days before a
regular election and ninety (90) days before a special
election.” (Emphasis ours)
Likewise, Section 35 of R.A. 8189, which among others,
speaks of a prohibitive period within which to file a sworn
petition for the exclusion of voters from the permanent
voter’s list, provides: chanrob1es virtual 1aw library
“SECTION 35. Petition for Exclusion of Voters from the
List. — Any registered voter, representative of a political
party . . . may file . . . except one hundred (100) days
prior to a regular election . . . .”
As aptly observed and succinctly worded by respondent
COMELEC in its Comment: chanrob1es virtual 1aw library
“. . . The petition for exclusion is a necessary component
to registration since it is a safety mechanism that gives a
measure of protection against flying voters, non-qualified
registrants, and the like. The prohibitive period, on the
other hand serves the purpose of securing the voter’s
substantive right to be included in the list of voters.
“In real-world terms, this means that if a special voter’s
registration is conducted, then the prohibitive period for
filing petitions for exclusion must likewise be adjusted to
a later date. If we do not, then no one can challenge the
Voter’s list since we would already be well into the 100-
day prohibitive period. Aside from being a flagrant breach
of the principles of due process, this would open the
registration process to abuse and seriously compromise
the integrity of the voter’s list, and consequently, that of
the entire election.
“. . . It must be remembered that the period serve a vital
role in protecting the integrity of the registration process.
Without the prohibitive periods, the COMELEC would be
deprived of any time to evaluate the evidence on the
application. We would be obliged to simply take them at
face value. If we compromise on these safety nets, we
may very well end up with a voter’s list full of flying
voters, overflowing with unqualified registrants,
populated with shadows and ghosts . . . .
“. . . The short cuts that will have to be adopted in order
to fit the entire process of registration within the last 60
days will give rise to haphazard list of voters, some of
whom might not even be qualified to vote. . . . the very
possibility that we shall be conducting elections on the
basis of an inaccurate list is enough to cast a cloud of
doubt over the results of the polls. If that happens, the
unforgiving public will disown the results of the elections,
regardless of who wins, and regardless of how many
courts validate our own results. . . .”
Perhaps undaunted by such scenario, petitioners invoke
the so called “standby” powers or “residual” powers of
the COMELEC, as provided under the relevant provisions
of Section 29, Republic Act No. 6646 7 and adopted
verbatim in Section 28 of Republic Act No. 8436, 8 thus:
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chanrob1es
“SECTION 28. Designation of other Dates for Certain Pre-
election Acts. — If it should no longer be possible to
observe the periods and dates prescribed by law for
certain pre-election acts, the Commission shall fix other
periods and dates in order to ensure accomplishments of
the activities so voters shall not be deprived of their right
to suffrage.”
On this matter, the act of registration is concededly, by
its very nature, a pre-election act. Under Section 3(a) of
R.A. 8189, registration, as a process, has its own specific
definition, precise meaning and coverage, thus: chanrob1es virtual 1aw library
“a) Registration refers to the act of accomplishing and
filing of a sworn application for registration by a qualified
voter before the election officer of the city or municipality
wherein he resides and including the same in the book of
registered voters upon approval by the Election
Registration Board;”
At this point, it bears emphasis that the provisions of
Section 29 of R.A. 8436 invoked by herein petitioners
and Section 8 of R.A. 8189 volunteered by respondent
COMELEC, far from contradicting each other, actually
share some common ground. True enough, both
provisions, although at first glance may seem to be at
war in relation to the other, are in a more circumspect
perusal, necessarily capable of being harmonized and
reconciled.chanrob1es virtua1 1aw 1ibrary
Rudimentary is the principle in legal hermeneutics that
changes made by the legislature in the form of
amendments to a statute should be given effect, together
with other parts of the amended act. It is not to be
presumed that the legislature, in making such changes,
was indulging in mere semantic exercise. There must be
some purpose in making them, which should be
ascertained and given effect. 9
Similarly, every new statute should be construed in
connection with those already existing in relation to the
same subject matter and all should be made to
harmonize and stand together, if they can be done by
any fair and reasonable interpretation. 10 Interpretare et
concordare legibus est optimus interpretandi, which
means that the best method of interpretation is that
which makes laws consistent with other laws.
Accordingly, courts of justice, when confronted with
apparently conflicting statutes, should endeavor to
reconcile them instead of declaring outright the invalidity
of one against the other. Courts should harmonize them,
if this is possible, because they are equally the handiwork
of the same legislature. 11
In light of the foregoing doctrine, we hold that Section 8
of R.A. 8189 applies in the present case, for the purpose
of upholding the assailed COMELEC Resolution and
denying the instant petitions, considering that the
aforesaid law explicitly provides that no registration shall
be conducted during the period starting one hundred
twenty (120) days before a regular election.
Corollarily, it is specious for herein petitioners to argue
that respondent COMELEC may validly and legally
conduct a two-day special registration, through the
expedient of the letter of Section 28 of R.A. 8436. To this
end, the provisions of Section 28, R.A. 8436 would come
into play in cases where the pre-election acts are
susceptible of performance within the available period
prior to election day. In more categorical language,
Section 28 of R.A. 8436 is, to our mind, anchored on the
sound premise that these certain “pre-election acts” are
still capable of being reasonably performed vis-a-vis the
remaining period before the date of election and the
conduct of other related pre-election activities required
under the law.
In its Comment, respondent COMELEC — which is the
constitutional body tasked by no less than the
fundamental charter (Sec. 2, par. 3, Article IX-C of the
Constitution) to decide, except those involving the right
to vote, all questions affecting elections, including
registration of voters — painstakingly and thoroughly
emphasized the “operational impossibility” 12 of
conducting a special registration, which in its on
language, “can no longer be accomplished within the
time left to (us) the Commission.” 13
Hence: jgc:chanrobles.com.ph
"x       x       x.
“19) In any case, even without the legal obstacles, the
last 60 days will not be a walk in the park for the
Comelec. Allow us to outline what the Commission has
yet to do, and the time to do it in:chanrob1es virtual 1aw library
“20) First we have to complete the Project of Precincts by
the 19th of March. The Projects of Precincts indicate the
total number of established precincts and the number of
registered voters per precincts in a city or municipality.
Without the final Project of Precincts, we cannot even
determine the proper allocation of official ballots, election
returns and other election forms and paraphernalia. More
succinctly said, without the Project of Precincts, we won’t
know how many forms to print and so we’re liable to
come up short.
“21) More importantly, without a completed Project of
Precincts, it will be impossible to complete the rest of the
tasks that must be accomplished prior to the elections.
“22) Second, the Board of Elections Inspectors must be
constituted on or before the 4th of March. In addition,
the list of the members of the BEI — including the
precinct where they are assigned and the barangay
where that precinct is located — must be furnished by
the Election Officer to all the candidates and political
candidates not later than the 26th of March.

“23) Third, the Book of Voters, which contains the
approved Voter Registration Records of registered voters
in particular precinct, must be inspected, verified, and
sealed beginning March 30, until April 15.
“24) Fourth, the Computerized Voters’ List must be
finalized and printed out of use on election day; and
finally
“25) Fifth, the preparation, bidding, printing, and
distribution of the Voters Information Sheet must be
completed on or before April 15.
“26) With this rigorous schedule of pre-election activities,
the Comelec will have roughly a month that will act as a
buffer against any number of unforeseen occurrences
that might delay the elections. This is the logic and the
wisdom behind setting the 120-day prohibitive period.
After all, preparing for an election is no easy task.
“27) To hold special registrations now would, aside from
being illegal, whittle that approximately 30-day margin
away to nothing. chanrob1es virtua1 1aw 1ibrary
“28) When we say registration of voters, we do not —
contrary to popular opinion — refer only to the act of
going to the Election Officer and writing our names down.
Registration is, in fact, a long process that takes about
three weeks to complete, not even counting how long it
would take to prepare for the registration in the first
place.
“29) In order to concretize, the senior Staff of the
Comelec, the other Commissioners, prepared a time-
table in order to see exactly how the superimposition of
special registration would affect the on-going preparation
for the May 14 elections.
“30) We assumed for the sake of argument that we were
to hold the special registration on April 16 and 17. These
are not arbitrary numbers, by the way it takes in account
the fact that we only have about 800,000 Voters
Registration Forms available, as against an estimated 4.5
million potential registrants, and it would take about 14
days — if we were to declare special registrations today
— to print up the difference and to verify these
accountable forms. After printing and verification, the
forms would have to be packed and shipped — roughly
taking up a further two and a half weeks. Only then can
we get on with registration.
“31) The first step in registration is, of course, filling the
application for registration with the Election Officer. The
application, according to Section 17 of R.A. 8189, is then
set for hearing, with notice of that hearing being posted
in the city or municipal bulletin board for at least one
week prior. Thus, if we held registrations on the 16th and
the 17th the posting requirement would be completed by
the 24th. Considering that time must be allowed for the
filling of oppositions, the earliest that the Election
Registration Board can be convened for hearing would be
the May 1st and 2nd.
“32) Assuming — and this is a big assumption — that
there are no challenges to the applicant’s right to
register, the Election registration Board can immediately
rule on the Applicant’s registration, and post notices of
its action by the 2nd until the 7th of May. By the 10th,
copies of the notice of the action taken by the Board will
have already been furnished to the applicants and the
heads of registered political parties.
“33) Only at this point can our Election Officers once
again focus on the business of getting ready for the
elections. Once the results of the special registration are
finalized, they can be encoded and a new Computerized
Voters’ List generated — at the earliest, by May 11, after
which the new CVL would be posted. Incidentally, if we
were to follow the letter of the law strictly, a May 11
posting date for the new CVL would be improper since
the R.A. 8189 provides that the CVL be posted at least
90 days before the election.
“34) Assuming optimistically that we can then finish the
inspection, verification, and sealing of the Book of Voters
by May 15, we will already have overshot the May 14,
election date, and still not have finished our election
preparations.
“35) After this point, we could have to prepare the
allocation of Official Ballots, Election Returns, and other
Non-Accountable Forms and Supplies to be used for the
new registrants. Once the allocation is ready, the
contracts would be awarded, the various forms printed,
delivered, verified, and finally shipped out to the different
municipalities. All told, this process would take
approximately 26 days, from the 15th of May until June
10.
“36) Only then can we truly say that we are ready to
hold the elections.chanrob1es virtua1 1aw 1ibrary
"x       x       x." 14
It is an accepted doctrine in administrative law that the
determination of administrative agency as to the
operation, implementation and application of a law would
be accorded great weight considering that these
specialized government bodies are, by their nature and
functions, in the best position to know what they can
possibly do or not do, under prevailing circumstances.
Beyond this, it is likewise well-settled that the law does
not require that the impossible be done. 15 The law
obliges no one to perform an impossibility, expressed in
the maxim, nemo tenetur ad impossible. 16 In other
words, there is no obligation to do an impossible thing.
Impossibilium nulla obligatio est. Hence, a statute may
not be so construed as to require compliance with what it
prescribes cannot, at the time, be legally accomplished.
17 Incidentally, it must be presumed that the legislature
did not at all intend an interpretation or application of a
law which is far removed from the realm of the possible.
Truly, in the interpretation of statutes, the interpretation
to be given must be such that it is in accordance with
logic, common sense, reasonableness and practicality.
Thus, we are of the considered view that the “stand-by
power” of the respondent COMELEC under Section 28 of
R.A. 8436, presupposes the possibility of its being
exercised or availed of, and not otherwise.
Further, petitioners’ bare allegation that they were
disenfranchised when respondent COMELEC pegged the
registration deadline on December 27, 2000 instead of
January 13, 2001 — the day before the prohibitive 120-
day period before the May 14, 2001 regular elections
commences — is, to our mind, not sufficient. On this
matter, there is no allegation in the two consolidated
petitions and the records are bereft of any showing that
anyone of herein petitioners has filed an application to be
registered as a voter which was denied by the COMELEC
nor filed a complaint before the respondent COMELEC
alleging that he or she proceeded to the Office of the
Election Officer to register between the period starting
from December 28, 2000 to January 13, 2001, and that
he or she was disallowed or barred by respondent
COMELEC from filing his application for registration.
While it may be true that respondent COMELEC set the
registration deadline on December 27, 2000, this Court is
of the Firm view that petitioners were not totally denied
the opportunity to avail of the continuing registration
under R.A. 8189. Stated in a different manner, the
petitioners in the instant case are not without fault or
blame. They admit in their petition 18 that they failed to
register, for whatever reason, within the period of
registration and came to this Court and invoked its
protective mantle not realizing, so to speak, the speck in
their eyes. Impuris minibus nemo accedat curiam. Let no
one come to court with unclean hands.
In a similar vein, well-entrenched is the rule in our
jurisdiction that the law aids the vigilant and not those
who slumber on their rights. Vigilantis sed non
dormientibus jura in re subveniunt.
Applying the foregoing, this court is of the firm view that
respondent COMELEC did not commit an abuse of
discretion, much less be adjudged to have committed the
same in some patent, whimsical and arbitrary manner, in
issuing Resolution No. 3584 which, in respondent’s own
terms, resolved “to deny the request to conduct a two-
day additional registration of new voters on February 17
and 18, 2001.”
On this particular matter, grave abuse of discretion
implies a capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction, or, when the
power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and it must be so
patent and gross as to amount to an evasion of positive
duty enjoined or to act at all in contemplation of laws. 19
Under these circumstances, we rule that the COMELEC, in
denying the request of petitioners to hold a special
registration, acted within the bounds and confines of the
applicable law on the matter — Section 8 of RA 8189. In
issuing the assailed Resolution, respondent COMELEC
simply performed its constitutional task to enforce and
administer all laws and regulations relative to the
conduct of an election, 20 inter alia, questions relating to
the registration of voters; evidently, respondent
COMELEC merely exercised a prerogative that chiefly
pertains to it and one which squarely falls within the
proper sphere of its constitutionally-mandated powers.
Hence, whatever action respondent takes in the exercise
of its wide latitude of discretion, specifically on matters
involving voters’ registration, pertains to the wisdom
rather than the legality of the act. Accordingly, in the
absence of clear showing of grave abuse of power of
discretion on the part of respondent COMELEC, this Court
may not validly conduct an incursion and meddle with
affairs exclusively within the province of respondent
COMELEC — a body accorded by no less than the
fundamental law with independence.
As to petitioners’ prayer for the issuance of the writ of
mandamus, we hold that this Court cannot, in view of the
very nature of such extraordinary writ, issue the same
without transgressing the time-honored principles in this
jurisdiction.
As an extraordinary writ, the remedy of mandamus lies
only to compel an officer to perform a ministerial duty,
not a discretionary one; mandamus will not issue to
control the exercise of discretion of a public officer where
the law imposes upon him the duty to exercise his
judgment in reference to any manner in which he is
required to act, because it is his judgment that is to be
exercised and not that of the court. 21
Considering the circumstances where the writ of
mandamus lies and the peculiarities of the present case,
we are of the firm belief that petitioners failed to
establish, to the satisfaction of this Court, that they are
entitled to the issuance of this extraordinary writ so as to
effectively compel respondent COMELEC to conduct a
special registration of voters. For the determination of
whether or not the conduct of a special registration of
voters is feasible, possible or practical within the
remaining period before the actual date of election,
involves the exercise of discretion and thus, cannot be
controlled by mandamus. chanrob1es virtua1 1aw 1ibrary
In Bayan v. Executive Secretary Zamora and related
cases, 22 we enunciated that the Court’s function, as
sanctioned by Article VIII, Section 1, is “merely (to)
check whether or not the governmental branch or agency
has gone beyond the constitutional limits of its
jurisdiction, not that it erred or has a different view. In
the absence of a showing . . . (of) grave abuse of
discretion amounting to lack of jurisdiction, there is no
occasion for the Court to exercise its corrective
power . . . It has no power to look into what it thinks is
apparent error.” 23
Finally, the Court likewise takes judicial notice of the fact
that the President has issued Proclamation No. 15 calling
Congress to a Special Session on March 19, 2001, to
allow the conduct of Special Registration of new voters.
House Bill No. 12930 has been filed before the Lower
House, which bill seeks to amend R.A. 8189 as to the
120-day prohibitive period provided for under said law.
Similarly, Senate Bill No. 2276 24 was filed before the
Senate, with the same intention to amend the aforesaid
law and, in effect, allow the conduct of special
registration before the May 14, 2001 General Elections.
This Court views the foregoing factual circumstances as a
clear intimation on the part of both the executive and
legislative departments that a legal obstacle indeed
stands in the way of the conduct by the Commission on
Elections of a special registration before the May 14,
2001 General Elections.
WHEREFORE, premises considered, the instant petitions
for certiorari and mandamus are hereby DENIED.
SO ORDERED.
G.R. No. 119976 September 18, 1995
IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY
MONTEJO, respondents.
KAPUNAN, J.:
A constitutional provision should be construed as to give it
effective operation and suppress the mischief at which it is
aimed.  The 1987 Constitution mandates that an aspirant for
1 petitioner that:
election to the House of Representatives be "a registered voter in
the district in which he shall be elected, and a resident thereof for
a period of not less than one year immediately preceding the
election."  The mischief which this provision — reproduced
2 ground that it is filed out of time, the deadline for
verbatim from the 1973 Constitution — seeks to prevent is the
possibility of a "stranger or newcomer unacquainted with the
conditions and needs of a community and not identified with the
latter, from an elective office to serve that community."3
Petitioner Imelda Romualdez-Marcos filed her Certificate of
Candidacy for the position of Representative of the First District of
Leyte with the Provincial Election Supervisor on March 8, 1995,
providing the following information in item no. 8:4
RESIDENCE IN THE CONSTITUENCY WHERE I
SEEK TO BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION: __________
Years and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the
incumbent Representative of the First District of Leyte and a
candidate for the same position, filed a "Petition for Cancellation
and Disqualification"  with the Commission on Elections alleging
5
that petitioner did not meet the constitutional requirement for
residency. In his petition, private respondent contended that Mrs.
Marcos lacked the Constitution's one year residency requirement
for candidates for the House of Representatives on the evidence
of declarations made by her in Voter Registration Record 94-No.
3349772  and in her Certificate of Candidacy. He prayed that "an
6
order be issued declaring (petitioner) disqualified and canceling
the certificate of candidacy." 7
On March 29, 1995, petitioner filed an Amended/Corrected
Certificate of Candidacy, changing the entry "seven" months to
"since childhood" in item no. 8 of the amended certificate.  On the
8
same day, the Provincial Election Supervisor of Leyte informed
[T]his office cannot receive or accept the
aforementioned Certificate of Candidacy on the
the filing of the same having already lapsed on
March 20, 1995. The Corrected/Amended
Certificate of Candidacy should have been filed on
or before the March 20, 1995 deadline. 9
Consequently, petitioner filed the Amended/Corrected Certificate
of Candidacy with the COMELEC's Head Office in Intramuros,
Manila on
March 31, 1995. Her Answer to private respondent's petition in
SPA No. 95-009 was likewise filed with the head office on the
same day. In said Answer, petitioner averred that the entry of the
word "seven" in her original Certificate of Candidacy was the
result of an "honest misinterpretation"   which she sought to
10
rectify by adding the words "since childhood" in her
Amended/Corrected Certificate of Candidacy and that "she has
always maintained Tacloban City as her domicile or
residence.   Impugning respondent's motive in filing the petition
11
seeking her disqualification, she noted that:
When respondent (petitioner herein) announced
that she was intending to register as a voter in
Tacloban City and run for Congress in the First
 District of Leyte, petitioner immediately opposed
her intended registration by writing a letter stating
that "she is not a resident of said city but of
Barangay Olot, Tolosa, Leyte. After respondent
had registered as a voter in Tolosa following
completion of her six month actual residence
therein, petitioner filed a petition with the
COMELEC to transfer the town of Tolosa from the
First District to the Second District and pursued
such a move up to the Supreme Court, his
purpose being to remove respondent as
petitioner's opponent in the congressional election
in the First District. He also filed a bill, along with
other Leyte Congressmen, seeking the creation of
another legislative district to remove the town of
Tolosa out of the First District, to achieve his
purpose. However, such bill did not pass the
Senate. Having failed on such moves, petitioner
now filed the instant petition for the same
objective, as it is obvious that he is afraid to
submit along with respondent for the judgment
and verdict of the electorate of the First District of
Leyte in an honest, orderly, peaceful, free and
clean elections on May 8, 1995.  12
On April 24, 1995, the Second Division of the Commission on
Elections (COMELEC), by a vote of 2 to 1,   came up with a
13
Resolution 1) finding private respondent's Petition for
Disqualification in SPA 95-009 meritorious; 2) striking off
petitioner's Corrected/Amended Certificate of Candidacy of March
31, 1995; and 3) canceling her original Certificate of
Candidacy.   Dealing with two primary issues, namely, the validity
14
of amending the original Certificate of Candidacy after the lapse
of the deadline for filing certificates of candidacy, and petitioner's
compliance with the one year residency requirement, the Second
Division held:
Respondent raised the affirmative defense in her
Answer that the printed word "Seven" (months)
was a result of an "honest misinterpretation or
honest mistake" on her part and, therefore, an
amendment should subsequently be allowed. She
averred that she thought that what was asked was
her "actual and physical" presence in Tolosa and
not residence of origin or domicile in the First
Legislative District, to which she could have
responded "since childhood." In an accompanying
affidavit, she stated that her domicile is Tacloban
City, a component of the First District, to which
she always intended to return whenever absent
and which she has never abandoned.
Furthermore, in her memorandum, she tried to
discredit petitioner's theory of disqualification by
alleging that she has been a resident of the First
Legislative District of Leyte since childhood,
although she only became a resident of the
Municipality of Tolosa for seven months. She
asserts that she has always been a resident of
Tacloban City, a component of the First District,
before coming to the Municipality of Tolosa.
Along this point, it is interesting to note that prior
to her registration in Tolosa, respondent
announced that she would be registering in
Tacloban City so that she can be a candidate for
the District. However, this intention was rebuffed
when petitioner wrote the Election Officer of
Tacloban not to allow respondent since she is a
resident of Tolosa and not Tacloban. She never
disputed this claim and instead implicitly acceded
to it by registering in Tolosa.
This incident belies respondent's claim of "honest
misinterpretation or honest mistake." Besides, the
Certificate of Candidacy only asks for
RESIDENCE. Since on the basis of her Answer,
she was quite aware of "residence of origin" which
she interprets to be Tacloban City, it is curious
why she did not cite Tacloban City in her
Certificate of Candidacy. Her explanation that she
thought what was asked was her actual and
physical presence in Tolosa is not easy to believe
because there is none in the question that
insinuates about Tolosa. In fact, item no. 8 in the
Certificate of Candidacy speaks clearly of
"Residency in the CONSTITUENCY where I seek
to be elected immediately preceding the election."
Thus, the explanation of respondent fails to be
persuasive.
From the foregoing, respondent's defense of an
honest mistake or misinterpretation, therefore, is
devoid of merit.
To further buttress respondent's contention that
an amendment may be made, she cited the case
of Alialy v. COMELEC (2 SCRA 957). The
reliance of respondent on the case of Alialy is
misplaced. The case only applies to the
"inconsequential deviations which cannot affect
the result of the election, or deviations from
provisions intended primarily to secure timely and
orderly conduct of elections." The Supreme Court
in that case considered the amendment only as a
matter of form. But in the instant case, the
amendment cannot be considered as a matter of
form or an inconsequential deviation. The change
in the number of years of residence in the place
where respondent seeks to be elected is a
substantial matter which determines her
qualification as a candidacy, specially those
intended to suppress, accurate material
representation in the original certificate which
adversely affects the filer. To admit the amended
certificate is to condone the evils brought by the
shifting minds of manipulating candidate, of the
detriment of the integrity of the election.
Moreover, to allow respondent to change the
seven (7) month period of her residency in order
to prolong it by claiming it was "since childhood" is
to allow an untruthfulness to be committed before
this Commission. The arithmetical accuracy of the
7 months residency the respondent indicated in
her certificate of candidacy can be gleaned from
her entry in her Voter's Registration Record
accomplished on January 28, 1995 which reflects
that she is a resident of Brgy. Olot, Tolosa, Leyte
for 6 months at the time of the said registration
(Annex A, Petition). Said accuracy is further
buttressed by her letter to the election officer of
San Juan, Metro Manila, dated August 24, 1994,
requesting for the cancellation of her registration
in the Permanent List of Voters thereat so that she
can be re-registered or transferred to Brgy. Olot,
Tolosa, Leyte. The dates of these three (3)
different documents show the respondent's
consistent conviction that she has transferred her
residence to Olot, Tolosa, Leyte from Metro
Manila only for such limited period of time, starting
in the last week of August 1994 which on March 8,
1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to
believe in the respondent's contention that it was
an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected
Certificate of Candidacy cannot be admitted by
this Commission.
 xxx xxx xxx
Anent the second issue, and based on the
foregoing discussion, it is clear that respondent
has not complied with the one year residency
requirement of the Constitution.
In election cases, the term "residence" has always
been considered as synonymous with "domicile"
which imports not only the intention to reside in a
fixed place but also personal presence in-that
place, coupled with conduct indicative of such
intention. Domicile denotes a fixed permanent
residence to which when absent for business or
pleasure, or for like reasons, one intends to
return. (Perfecto Faypon vs. Eliseo Quirino, 96
Phil 294; Romualdez vs. RTC-Tacloban, 226
SCRA 408). In respondent's case, when she
returned to the Philippines in 1991, the residence
she chose was not Tacloban but San Juan, Metro
Manila. Thus, her animus revertendi is pointed to
Metro Manila and not Tacloban.
This Division is aware that her claim that she has
been a resident of the First District since
childhood is nothing more than to give her a color
of qualification where she is otherwise
constitutionally disqualified. It cannot hold ground
in the face of the facts admitted by the respondent
in her affidavit. Except for the time that she
studied and worked for some years after
graduation in Tacloban City, she continuously
lived in Manila. In 1959, after her husband was
elected Senator, she lived and resided in San
Juan, Metro Manila where she was a registered
voter. In 1965, she lived in San Miguel, Manila
where she was again a registered voter. In 1978,
she served as member of the Batasang
Pambansa as the representative of the City of
Manila and later on served as the Governor of
Metro Manila. She could not have served these
positions if she had not been a resident of the City
of Manila. Furthermore, when she filed her
certificate of candidacy for the office of the
President in 1992, she claimed to be a resident of
San Juan, Metro Manila. As a matter of fact on
August 24, 1994, respondent wrote a letter with
the election officer of San Juan, Metro Manila
requesting for the cancellation of her registration
in the permanent list of voters that she may be re-
registered or transferred to Barangay Olot,
Tolosa, Leyte. These facts manifest that she could
not have been a resident of Tacloban City since
childhood up to the time she filed her certificate of
candidacy because she became a resident of
many places, including Metro Manila. This
debunks her claim that prior to her residence in
Tolosa, Leyte, she was a resident of the First
Legislative District of Leyte since childhood.
In this case, respondent's conduct reveals her
lack of intention to make Tacloban her domicile.
She registered as a voter in different places and
on several occasions declared that she was a
resident of Manila. Although she spent her school
days in Tacloban, she is considered to have
abandoned such place when she chose to stay
and reside in other different places. In the case
of Romualdez vs. RTC (226 SCRA 408) the Court
explained how one acquires a new domicile by
choice. There must concur: (1) residence or bodily
presence in the new locality; (2) intention to
remain there; and (3) intention to abandon the old
domicile. In other words there must basically
be animus manendi with animus non revertendi.
When respondent chose to stay in Ilocos and later
on in Manila, coupled with her intention to stay
there by registering as a voter there and expressly
declaring that she is a resident of that place, she
is deemed to have abandoned Tacloban City,
where she spent her childhood and school days,
as her place of domicile.
Pure intention to reside in that place is not
sufficient, there must likewise be conduct
indicative of such intention. Respondent's
statements to the effect that she has always
intended to return to Tacloban, without the
accompanying conduct to prove that intention, is
not conclusive of her choice of residence.
Respondent has not presented any evidence to
show that her conduct, one year prior the election,
showed intention to reside in Tacloban. Worse,
what was evident was that prior to her residence
in Tolosa, she had been a resident of Manila.
It is evident from these circumstances that she
was not a resident of the First District of Leyte
"since childhood."
To further support the assertion that she could
have not been a resident of the First District of
Leyte for more than one year, petitioner correctly
pointed out that on January 28, 1995 respondent
registered as a voter at precinct No. 18-A of Olot,
Tolosa, Leyte. In doing so, she placed in her Voter
Registration Record that she resided in the
municipality of Tolosa for a period of six months.
This may be inconsequential as argued by the
respondent since it refers only to her residence in
Tolosa, Leyte. But her failure to prove that she
was a resident of the First District of Leyte prior to
her residence in Tolosa leaves nothing but a
convincing proof that she had been a resident of
the district for six months only. 
15
In a Resolution promulgated a day before the May 8, 1995
elections, the COMELEC en banc denied petitioner's Motion for
Reconsideration   of the April 24, 1995 Resolution declaring her
16
not qualified to run for the position of Member of the House of
Representatives for the First Legislative District of Leyte.   The
17
Resolution tersely stated:
After deliberating on the Motion for
Reconsideration, the Commission RESOLVED to
DENY it, no new substantial matters having been
raised therein to warrant re-examination of the
resolution granting the petition for
disqualification. 
18
On May 11, 1995, the COMELEC issued a Resolution allowing
petitioner's proclamation should the results of the canvass show
that she obtained the highest number of votes in the
congressional elections in the First District of Leyte. On the same
day, however, the COMELEC reversed itself and issued a second
Resolution directing that the proclamation of petitioner be
suspended in the event that she obtains the highest number of
votes. 19
In a Supplemental Petition dated 25 May 1995, petitioner averred
that she was the overwhelming winner of the elections for the
congressional seat in the First District of Leyte held May 8, 1995
based on the canvass completed by the Provincial Board of
Canvassers on May 14, 1995. Petitioner alleged that the canvass
showed that she obtained a total of 70,471 votes compared to the
36,833 votes received by Respondent Montejo. A copy of said
Certificate of Canvass was annexed to the Supplemental Petition.
On account of the Resolutions disqualifying petitioner from
running for the congressional seat of the First District of Leyte
and the public respondent's Resolution suspending her
proclamation, petitioner comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental
Petitions. The principal issues may be classified into two general
areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for
election purposes, of the First District of Leyte for
a period of one year at the time of the May 9,
1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised
its jurisdiction in disqualifying petitioner outside
the period mandated by the Omnibus Election
Code for disqualification cases under Article 78 of
the said Code.
b) After the Elections
Whether or not the House of Representatives
Electoral Tribunal assumed exclusive jurisdiction
over the question of petitioner's qualifications after
the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division
reveals a startling confusion in the application of settled concepts
of "Domicile" and "Residence" in election law. While the
COMELEC seems to be in agreement with the general
proposition that for the purposes of election law, residence is
synonymous with domicile, the Resolution reveals a tendency to
substitute or mistake the concept of domicile for actual residence,
a conception not intended for the purpose of determining a
candidate's qualifications for election to the House of
Representatives as required by the 1987 Constitution. As it were,
residence, for the purpose of meeting the qualification for an
elective position, has a settled meaning in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil
rights and the fulfillment of civil obligations, the domicile of natural
persons is their place of habitual residence." In Ong
vs. Republic   this court took the concept of domicile to mean an
20
individual's "permanent home", "a place to which, whenever
absent for business or for pleasure, one intends to return, and
depends on facts and circumstances in the sense that they
disclose intent."   Based on the foregoing, domicile includes the
21
twin elements of "the fact of residing or physical presence in a
fixed place" and animus manendi, or the intention of returning
there permanently.
Residence, in its ordinary conception, implies the factual
relationship of an individual to a certain place. It is the physical
presence of a person in a given area, community or country. The
essential distinction between residence and domicile in law is that
residence involves the intent to leave when the purpose for which
the resident has taken up his abode ends. One may seek a place
for purposes such as pleasure, business, or health. If a person's
intent be to remain, it becomes his domicile; if his intent is to
leave as soon as his purpose is established it is residence.   It is
22
thus, quite perfectly normal for an individual to have different
residences in various places. However, a person can only have a
single domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of choice.
In Uytengsu vs. Republic,   we laid this distinction quite clearly:
23
There is a difference between domicile and
residence. "Residence" is used to indicate a place
 of abode, whether permanent or temporary;
"domicile" denotes a fixed permanent residence to
which, when absent, one has the intention of
returning. A man may have a residence in one
place and a domicile in another. Residence is not
domicile, but domicile is residence coupled with
the intention to remain for an unlimited time. A
man can have but one domicile for the same
purpose at any time, but he may have numerous
places of residence. His place of residence is
generally his place of domicile, but it is not by any
means necessarily so since no length of
residence without intention of remaining will
constitute domicile.
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these
concepts have evolved in our election law, what has clearly and
unequivocally emerged is the fact that residence for election
purposes is used synonymously with domicile.
In Nuval vs. Guray,   the Court held that "the term residence. . . is
24
synonymous with domicile which imports not only intention to
reside in a fixed place, but also personal presence in that place,
coupled with conduct indicative of such intention."   Larena
25
vs. Teves   reiterated the same doctrine in a case involving the
26
qualifications of the respondent therein to the post of Municipal
President of Dumaguete, Negros Oriental. Faypon
vs. Quirino,   held that the absence from residence to pursue
27
studies or practice a profession or registration as a voter other
than in the place where one is elected does not constitute loss of
residence.   So settled is the concept (of domicile) in our election
28
law that in these and other election law cases, this Court has
stated that the mere absence of an individual from his permanent
residence without the intention to abandon it does not result in a
loss or change of domicile.
The deliberations of the 1987 Constitution on the residence
qualification for certain elective positions have placed beyond
doubt the principle that when the Constitution speaks of
"residence" in election law, it actually means only "domicile" to
wit:
Mr. Nolledo: With respect to Section 5, I
remember that in the 1971 Constitutional
Convention, there was an attempt to require
residence in the place not less than one year
immediately preceding the day of the elections.
So my question is: What is the Committee's
concept of residence of a candidate for the
legislature? Is it actual residence or is it the
concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the
regular members of the National Assembly are
concerned, the proposed section merely provides,
among others, "and a resident thereof", that is, in
the district for a period of not less than one year
preceding the day of the election. This was in
effect lifted from the 1973 Constitution, the
interpretation given to it was domicile. 
29
xxx xxx xxx
Mrs. Rosario Braid: The next question is on
Section 7, page 2. I think Commissioner Nolledo
has raised the same point that "resident" has
been interpreted at times as a matter of intention
rather than actual residence.
Mr. De los Reyes: Domicile.
 Ms. Rosario Braid: Yes, So, would the gentleman
consider at the proper time to go back to actual
residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some
difficulty especially considering that a provision in
the Constitution in the Article on Suffrage says
that Filipinos living abroad may vote as enacted
by law. So, we have to stick to the original
concept that it should be by domicile and not
physical residence.  30
In Co vs. Electoral Tribunal of the House of
Representatives,   this Court concluded that the framers of the
31
1987 Constitution obviously adhered to the definition given to the
term residence in election law, regarding it as having the same
meaning as domicile.  32
In the light of the principles just discussed, has petitioner Imelda
Romualdez Marcos satisfied the residency requirement mandated
by Article VI, Sec. 6 of the 1987 Constitution? Of what
significance is the questioned entry in petitioner's Certificate of
Candidacy stating her residence in the First Legislative District of
Leyte as seven (7) months?
It is the fact of residence, not a statement in a certificate of
candidacy which ought to be decisive in determining whether or
not and individual has satisfied the constitution's residency
qualification requirement. The said statement becomes material
only when there is or appears to be a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a
candidate ineligible. It would be plainly ridiculous for a candidate
to deliberately and knowingly make a statement in a certificate of
candidacy which would lead to his or her disqualification.
It stands to reason therefore, that petitioner merely committed an
honest mistake in jotting the word "seven" in the space provided
for the residency qualification requirement. The circumstances
leading to her filing the questioned entry obviously resulted in the
subsequent confusion which prompted petitioner to write down
the period of her actual stay in Tolosa, Leyte instead of her period
of residence in the First district, which was "since childhood" in
the space provided. These circumstances and events are amply
detailed in the COMELEC's Second Division's questioned
resolution, albeit with a different interpretation. For instance,
when herein petitioner announced that she would be registering
in Tacloban City to make her eligible to run in the First District,
private respondent Montejo opposed the same, claiming that
petitioner was a resident of Tolosa, not Tacloban City. Petitioner
then registered in her place of actual residence in the First
District, which is Tolosa, Leyte, a fact which she subsequently
noted down in her Certificate of Candidacy. A close look at said
certificate would reveal the possible source of the confusion: the
entry for residence (Item No. 7) is followed immediately by the
entry for residence in the constituency where a candidate seeks
election thus:
7. RESIDENCE (complete Address): Brgy. Olot,
Tolosa, Leyte
POST OFFICE ADDRESS FOR ELECTION
PURPOSES: Brgy. Olot, Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY
WHERE I SEEK TO
BE ELECTED IMMEDIATELY PRECEDING THE
ELECTION:_________ Years and Seven Months.
Having been forced by private respondent to register in her place
of actual residence in Leyte instead of petitioner's claimed
domicile, it appears that petitioner had jotted down her period of
stay in her legal residence or domicile. The juxtaposition of
entries in Item 7 and Item 8 — the first requiring actual residence
and the second requiring domicile — coupled with the
circumstances surrounding petitioner's registration as a voter in
Tolosa obviously led to her writing down an unintended entry for
which she could be disqualified. This honest mistake should not,
however, be allowed to negate the fact of residence in the First
District if such fact were established by means more convincing
than a mere entry on a piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not
possibly be in the First District of Leyte, the Second Division of
the COMELEC, in its assailed Resolution of April 24,1995
maintains that "except for the time when (petitioner) studied and
worked for some years after graduation in Tacloban City, she
continuously lived in Manila." The Resolution additionally cites
certain facts as indicative of the fact that petitioner's domicile
ought to be any place where she lived in the last few decades
except Tacloban, Leyte. First, according to the Resolution,
petitioner, in 1959, resided in San Juan, Metro Manila where she
was also registered voter. Then, in 1965, following the election of
her husband to the Philippine presidency, she lived in San
Miguel, Manila where she as a voter. In 1978 and thereafter, she
served as a member of the Batasang Pambansa and Governor of
Metro Manila. "She could not, have served these positions if she
had not been a resident of Metro Manila," the COMELEC
stressed. Here is where the confusion lies.
We have stated, many times in the past, that an individual does
not lose his domicile even if he has lived and maintained
residences in different places. Residence, it bears repeating,
implies a factual relationship to a given place for various
purposes. The absence from legal residence or domicile to
pursue a profession, to study or to do other things of a temporary
or semi-permanent nature does not constitute loss of residence.
Thus, the assertion by the COMELEC that "she could not have
been a resident of Tacloban City since childhood up to the time
she filed her certificate of candidacy because she became a
resident of many places" flies in the face of settled jurisprudence
in which this Court carefully made distinctions between (actual)
residence and domicile for election law purposes. In Larena
vs. Teves,   supra, we stressed:
33
[T]his court is of the opinion and so holds that a
person who has his own house wherein he lives
with his family in a municipality without having
ever had the intention of abandoning it, and
without having lived either alone or with his family
in another municipality, has his residence in the
former municipality, notwithstanding his having
registered as an elector in the other municipality in
question and having been a candidate for various
insular and provincial positions, stating every time
that he is a resident of the latter municipality.
More significantly, in Faypon vs. Quirino,   We explained that:
34
A citizen may leave the place of his birth to look
for "greener pastures," as the saying goes, to
improve his lot, and that, of course includes study
in other places, practice of his avocation, or
engaging in business. When an election is to be
held, the citizen who left his birthplace to improve
his lot may desire to return to his native town to
cast his ballot but for professional or business
reasons, or for any other reason, he may not
absent himself from his professional or business
activities; so there he registers himself as voter as
he has the qualifications to be one and is not
willing to give up or lose the opportunity to choose
the officials who are to run the government
especially in national elections. Despite such
registration, the animus revertendi to his home, to
his domicile or residence of origin has not
forsaken him. This may be the explanation why
the registration of a voter in a place other than his
residence of origin has not been deemed
sufficient to constitute abandonment or loss of
 such residence. It finds justification in the natural
desire and longing of every person to return to his
place of birth. This strong feeling of attachment to
the place of one's birth must be overcome by
positive proof of abandonment for another.
From the foregoing, it can be concluded that in its above-cited
statements supporting its proposition that petitioner was ineligible
to run for the position of Representative of the First District of
Leyte, the COMELEC was obviously referring to petitioner's
various places of (actual) residence, not her domicile. In doing so,
it not only ignored settled jurisprudence on residence in election
law and the deliberations of the constitutional commission but
also the provisions of the Omnibus Election Code (B.P. 881).  35
What is undeniable, however, are the following set of facts which
establish the fact of petitioner's domicile, which we lift verbatim
from the COMELEC's Second Division's assailed Resolution:  36
In or about 1938 when respondent was a little
over 8 years old, she established her domicile in
Tacloban, Leyte (Tacloban City). She studied in
the Holy Infant Academy in Tacloban from 1938 to
1949 when she graduated from high school. She
pursued her college studies in St. Paul's College,
now Divine Word University in Tacloban, where
she earned her degree in Education. Thereafter,
she taught in the Leyte Chinese School, still in
Tacloban City. In 1952 she went to Manila to work
with her cousin, the late speaker Daniel Z.
Romualdez in his office in the House of
Representatives. In 1954, she married ex-
President Ferdinand E. Marcos when he was still
a congressman of Ilocos Norte and registered
there as a voter. When her husband was elected
Senator of the Republic in 1959, she and her
husband lived together in San Juan, Rizal where
she registered as a voter. In 1965, when her
husband was elected President of the Republic of
the Philippines, she lived with him in Malacanang
Palace and registered as a voter in San Miguel,
Manila.
[I]n February 1986 (she claimed that) she and her
family were abducted and kidnapped to Honolulu,
Hawaii. In November 1991, she came home to
Manila. In 1992, respondent ran for election as
President of the Philippines and filed her
Certificate of Candidacy wherein she indicated
that she is a resident and registered voter of San
Juan, Metro Manila.
Applying the principles discussed to the facts found by
COMELEC, what is inescapable is that petitioner held various
residences for different purposes during the last four decades.
None of these purposes unequivocally point to an intention to
abandon her domicile of origin in Tacloban, Leyte. Moreover,
while petitioner was born in Manila, as a minor she naturally
followed the domicile of her parents. She grew up in Tacloban,
reached her adulthood there and eventually established
residence in different parts of the country for various reasons.
Even during her husband's presidency, at the height of the
Marcos Regime's powers, petitioner kept her close ties to her
domicile of origin by establishing residences in Tacloban,
celebrating her birthdays and other important personal milestones
in her home province, instituting well-publicized projects for the
benefit of her province and hometown, and establishing a political
power base where her siblings and close relatives held positions
of power either through the ballot or by appointment, always with
either her influence or consent. These well-publicized ties to her
domicile of origin are part of the history and lore of the quarter
century of Marcos power in our country. Either they were entirely
ignored in the COMELEC'S Resolutions, or the majority of the
COMELEC did not know what the rest of the country always
knew: the fact of petitioner's domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was
not petitioner's domicile of origin because she did not live there
until she was eight years old. He avers that after leaving the place
in 1952, she "abandoned her residency (sic) therein for many
years and . . . (could not) re-establish her domicile in said place
by merely expressing her intention to live there again." We do not
agree.
First, minor follows the domicile of his parents. As domicile, once
acquired is retained until a new one is gained, it follows that in
spite of the fact of petitioner's being born in Manila, Tacloban,
Leyte was her domicile of origin by operation of law. This domicile
was not established only when her father brought his family back
to Leyte contrary to private respondent's averments.
Second, domicile of origin is not easily lost. To successfully effect
a change of domicile, one must demonstrate:  37
1. An actual removal or an actual change of
domicile;
2. A bona fide intention of abandoning the former
place of residence and establishing a new one;
and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these criteria,
the residence of origin should be deemed to continue. Only with
evidence showing concurrence of all three requirements can the
presumption of continuity or residence be rebutted, for a change
of residence requires an actual and deliberate abandonment, and
one cannot have two legal residences at the same time.   In the
38
case at bench, the evidence adduced by private respondent
plainly lacks the degree of persuasiveness required to convince
this court that an abandonment of domicile of origin in favor of a
domicile of choice indeed occurred. To effect an abandonment
requires the voluntary act of relinquishing petitioner's former
domicile with an intent to supplant the former domicile with one of
her own choosing (domicilium voluntarium).
In this connection, it cannot be correctly argued that petitioner lost
her domicile of origin by operation of law as a result of her
marriage to the late President Ferdinand E. Marcos in 1952. For
there is a clearly established distinction between the Civil Code
concepts of "domicile" and "residence."   The presumption that
39
the wife automatically gains the husband's domicile by operation
of law upon marriage cannot be inferred from the use of the term
"residence" in Article 110 of the Civil Code because the Civil
Code is one area where the two concepts are well delineated. Dr.
Arturo Tolentino, writing on this specific area explains:
In the Civil Code, there is an obvious difference
between domicile and residence. Both terms imply
relations between a person and a place; but in
residence, the relation is one of fact while in
domicile it is legal or juridical, independent of the
necessity of physical presence.  40
Article 110 of the Civil Code provides:
Art. 110. — The husband shall fix the residence of
the family. But the court may exempt the wife from
living with the husband if he should live abroad
unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the
concepts of domicile or residence as they affect the female
spouse upon marriage yields nothing which would suggest that
the female spouse automatically loses her domicile of origin in
favor of the husband's choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish
Civil Code of 1889 which states:
 La mujer esta obligada a seguir a su marido
donde quiera que fije su residencia. Los
Tribunales, sin embargo, podran con justa causa
eximirla de esta obligacion cuando el marido
transende su residencia a ultramar o' a pais
extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in
the aforequoted article, which means wherever (the
husband) wishes to establish residence. This part of the article
clearly contemplates only actual residence because it refers to a
positive act of fixing a family home or residence. Moreover, this
interpretation is further strengthened by the phrase "cuando el
marido translade su residencia" in the same provision which
means, "when the husband shall transfer his residence," referring
to another positive act of relocating the family to another home or
place of actual residence. The article obviously cannot be
understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility
of transferring from one place to another not only once, but as
often as the husband may deem fit to move his family, a
circumstance more consistent with the concept of actual
residence.
The right of the husband to fix the actual residence is in harmony
with the intention of the law to strengthen and unify the family,
recognizing the fact that the husband and the wife bring into the
marriage different domiciles (of origin). This difference could, for
the sake of family unity, be reconciled only by allowing the
husband to fix a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found under
Title V under the heading: RIGHTS AND OBLIGATIONS
BETWEEN HUSBAND AND WIFE. Immediately preceding Article
110 is Article 109 which obliges the husband and wife to live
together, thus:
Art. 109. — The husband and wife are obligated
to live together, observe mutual respect and
fidelity and render mutual help and support.
The duty to live together can only be fulfilled if the husband and
wife are physically together. This takes into account the situations
where the couple has many residences (as in the case of the
petitioner). If the husband has to stay in or transfer to any one of
their residences, the wife should necessarily be with him in order
that they may "live together." Hence, it is illogical to conclude that
Art. 110 refers to "domicile" and not to "residence." Otherwise, we
shall be faced with a situation where the wife is left in the domicile
while the husband, for professional or other reasons, stays in one
of their (various) residences. As Dr. Tolentino further explains:
Residence and Domicile — Whether the word
"residence" as used with reference to particular
matters is synonymous with "domicile" is a
question of some difficulty, and the ultimate
decision must be made from a consideration of
the purpose and intent with which the word is
used. Sometimes they are used synonymously, at
other times they are distinguished from one
another.
xxx xxx xxx
Residence in the civil law is a material fact,
referring to the physical presence of a person in a
place. A person can have two or more residences,
such as a country residence and a city residence.
Residence is acquired by living in place; on the
other hand, domicile can exist without actually
living in the place. The important thing for domicile
is that, once residence has been established in
one place, there be an intention to stay there
permanently, even if residence is also established
 in some other
place. 41
In fact, even the matter of a common residence between the
husband and the wife during the marriage is not an iron-clad
principle; In cases applying the Civil Code on the question of a
common matrimonial residence, our jurisprudence has
recognized certain situations   where the spouses could not be
42
compelled to live with each other such that the wife is either
allowed to maintain a residence different from that of her husband
or, for obviously practical reasons, revert to her original domicile
(apart from being allowed to opt for a new one). In De la Vina
vs. Villareal   this Court held that "[a] married woman may
43
acquire a residence or domicile separate from that of her
husband during the existence of the marriage where the husband
has given cause for divorce."   Note that the Court allowed the
44
wife either to obtain new residence or to choose a new domicile in
such an event. In instances where the wife actually opts, .under
the Civil Code, to live separately from her husband either by
taking new residence or reverting to her domicile of origin, the
Court has held that the wife could not be compelled to live with
her husband on pain of contempt. In Arroyo vs. Vasques de
Arroyo   the Court held that:
45
Upon examination of the authorities, we are
convinced that it is not within the province of the
courts of this country to attempt to compel one of
the spouses to cohabit with, and render conjugal
rights to, the other. Of course where the property
rights of one of the pair are invaded, an action for
restitution of such rights can be maintained. But
we are disinclined to sanction the doctrine that an
order, enforcible (sic) by process of contempt,
may be entered to compel the restitution of the
purely personal right of consortium. At best such
an order can be effective for no other purpose
than to compel the spouses to live under the
same roof; and he experience of those countries
where the courts of justice have assumed to
compel the cohabitation of married people shows
that the policy of the practice is extremely
questionable. Thus in England, formerly the
Ecclesiastical Court entertained suits for the
restitution of conjugal rights at the instance of
either husband or wife; and if the facts were found
to warrant it, that court would make a mandatory
decree, enforceable by process of contempt in
case of disobedience, requiring the delinquent
party to live with the other and render conjugal
rights. Yet this practice was sometimes criticized
even by the judges who felt bound to enforce such
orders, and in Weldon v. Weldon (9 P.D. 52),
decided in 1883, Sir James Hannen, President in
the Probate, Divorce and Admiralty Division of the
High Court of Justice, expressed his regret that
the English law on the subject was not the same
as that which prevailed in Scotland, where a
decree of adherence, equivalent to the decree for
the restitution of conjugal rights in England, could
be obtained by the injured spouse, but could not
be enforced by imprisonment. Accordingly, in
obedience to the growing sentiment against the
practice, the Matrimonial Causes Act (1884)
abolished the remedy of imprisonment; though a
decree for the restitution of conjugal rights can still
be procured, and in case of disobedience may
serve in appropriate cases as the basis of an
order for the periodical payment of a stipend in the
character of alimony.
In the voluminous jurisprudence of the United
States, only one court, so far as we can discover,
has ever attempted to make a preemptory order
requiring one of the spouses to live with the other;
and that was in a case where a wife was ordered
to follow and live with her husband, who had
 changed his domicile to the City of New Orleans.
The decision referred to (Bahn v. Darby, 36 La.
Ann., 70) was based on a provision of the Civil
Code of Louisiana similar to article 56 of the
Spanish Civil Code. It was decided many years
ago, and the doctrine evidently has not been
fruitful even in the State of Louisiana. In other
states of the American Union the idea of enforcing
cohabitation by process of contempt is rejected.
(21 Cyc., 1148).
In a decision of January 2, 1909, the Supreme
Court of Spain appears to have affirmed an order
of the Audiencia Territorial de Valladolid requiring
a wife to return to the marital domicile, and in the
alternative, upon her failure to do so, to make a
particular disposition of certain money and effects
then in her possession and to deliver to her
husband, as administrator of the ganancial
property, all income, rents, and interest which
might accrue to her from the property which she
had brought to the marriage. (113 Jur. Civ., pp. 1,
11) But it does not appear that this order for the
return of the wife to the marital domicile was
sanctioned by any other penalty than the
consequences that would be visited upon her in
respect to the use and control of her property; and
it does not appear that her disobedience to that
order would necessarily have been followed by
imprisonment for contempt.
Parenthetically when Petitioner was married to then
Congressman Marcos, in 1954, petitioner was obliged — by
virtue of Article 110 of the Civil Code — to follow her husband's
actual place of residence fixed by him. The problem here is that
at that time, Mr. Marcos had several places of residence, among
which were San Juan, Rizal and Batac, Ilocos Norte. There is no
showing which of these places Mr. Marcos did fix as his family's
residence. But assuming that Mr. Marcos had fixed any of these
places as the conjugal residence, what petitioner gained upon
marriage was actual residence. She did not lose her domicile of
origin.
On the other hand, the common law concept of "matrimonial
domicile" appears to have been incorporated, as a result of our
jurisprudential experiences after the drafting of the Civil Code of
1950, into the New Family Code. To underscore the difference
between the intentions of the Civil Code and the Family Code
drafters, the term residence has been supplanted by the term
domicile in an entirely new provision (Art. 69) distinctly different in
meaning and spirit from that found in Article 110. The provision
recognizes revolutionary changes in the concept of women's
rights in the intervening years by making the choice of domicile a
product of mutual agreement between the spouses.  46
Without as much belaboring the point, the term residence may
mean one thing in civil law (or under the Civil Code) and quite
another thing in political law. What stands clear is that insofar as
the Civil Code is concerned-affecting the rights and obligations of
husband and wife — the term residence should only be
interpreted to mean "actual residence." The inescapable
conclusion derived from this unambiguous civil law delineation
therefore, is that when petitioner married the former President in
1954, she kept her domicile of origin and merely gained a new
home, not a domicilium necessarium.
Even assuming for the sake of argument that petitioner gained a
new "domicile" after her marriage and only acquired a right to
choose a new one after her husband died, petitioner's acts
following her return to the country clearly indicate that she not
only impliedly but expressly chose her domicile of origin
(assuming this was lost by operation of law) as her domicile. This
"choice" was unequivocally expressed in her letters to the
Chairman of the PCGG when petitioner sought the PCGG's
permission to "rehabilitate (our) ancestral house in Tacloban and
Farm in Olot, Leyte. . . to make them livable for the Marcos family
to have a home in our homeland."   Furthermore, petitioner
47
obtained her residence certificate in 1992 in Tacloban, Leyte,
while living in her brother's house, an act which supports the
domiciliary intention clearly manifested in her letters to the PCGG
Chairman. She could not have gone straight to her home in San
Juan, as it was in a state of disrepair, having been previously
looted by vandals. Her "homes" and "residences" following her
arrival in various parts of Metro Manila merely qualified as
temporary or "actual residences," not domicile. Moreover, and
proceeding from our discussion pointing out specific situations
where the female spouse either reverts to her domicile of origin or
chooses a new one during the subsistence of the marriage, it
would be highly illogical for us to assume that she cannot regain
her original domicile upon the death of her husband absent a
positive act of selecting a new one where situations exist within
the subsistence of the marriage itself where the wife gains a
domicile different from her husband.
In the light of all the principles relating to residence and domicile
enunciated by this court up to this point, we are persuaded that
the facts established by the parties weigh heavily in favor of a
conclusion supporting petitioner's claim of legal residence or
domicile in the First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had
already lapsed considering that the assailed resolutions were
rendered on April 24, 1995, fourteen (14) days before the election
in violation of Section 78 of the Omnibus Election
Code.   Moreover, petitioner contends that it is the House of
48
Representatives Electoral Tribunal and not the COMELEC which
has jurisdiction over the election of members of the House of
Representatives in accordance with Article VI Sec. 17 of the
Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of
judgment within a specified time is generally construed to be
merely directory,   "so that non-compliance with them does not
49
invalidate the judgment on the theory that if the statute had
intended such result it would have clearly indicated it."   The
50
difference between a mandatory and a directory provision is often
made on grounds of necessity. Adopting the same view held by
several American authorities, this court in Marcelino
vs. Cruz held that:  51
The difference between a mandatory and
directory provision is often determined on grounds
of expediency, the reason being that less injury
results to the general public by disregarding than
enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling for the
interpretation of a statute containing a limitation of
thirty (30) days within which a decree may be
entered without the consent of counsel, it was
held that "the statutory provisions which may be
thus departed from with impunity, without affecting
the validity of statutory proceedings, are usually
those which relate to the mode or time of doing
that which is essential to effect the aim and
purpose of the Legislature or some incident of the
essential act." Thus, in said case, the statute
under examination was construed merely to be
directory.
The mischief in petitioner's contending that the COMELEC should
have abstained from rendering a decision after the period stated
in the Omnibus Election Code because it lacked jurisdiction, lies
in the fact that our courts and other quasi-judicial bodies would
then refuse to render judgments merely on the ground of having
failed to reach a decision within a given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646
in relation to Section 78 of B.P. 881,   it is evident that the
52
respondent Commission does not lose jurisdiction to hear and
decide a pending disqualification case under Section 78 of B.P. G.R. No. 180088               January 19, 2009
881 even after the elections.
MANUEL B. JAPZON, Petitioner,
As to the House of Representatives Electoral Tribunal's supposed vs.
assumption of jurisdiction over the issue of petitioner's COMMISSION ON ELECTIONS and JAIME S.
qualifications after the May 8, 1995 elections, suffice it to say that TY, Respondents.
HRET's jurisdiction as the sole judge of all contests relating to the
elections, returns and qualifications of members of Congress DECISION
begins only after a candidate has become a member of the
House of Representatives.   Petitioner not being a member of the
53
CHICO-NAZARIO, J.:
House of Representatives, it is obvious that the HRET at this
point has no jurisdiction over the question.
This is a Petition for Review on Certiorari under Rules 64 1 and
652 of the Revised Rules of Court seeking to annul and set aside
It would be an abdication of many of the ideals enshrined in the the Resolution3 dated 31 July 2007 of the First Division of public
1987 Constitution for us to either to ignore or deliberately make respondent Commission on Elections (COMELEC) and the
distinctions in law solely on the basis of the personality of a Resolution4 dated 28 September 2007 of COMELEC en banc, in
petitioner in a case. Obviously a distinction was made on such a SPA No. 07-568, for having been rendered with grave abuse of
ground here. Surely, many established principles of law, even of discretion, amounting to lack or excess of jurisdiction.
election laws were flouted for the sake perpetuating power during
the pre-EDSA regime. We renege on these sacred ideals,
Both petitioner Manuel B. Japzon (Japzon) and private
including the meaning and spirit of EDSA ourselves bending
respondent Jaime S. Ty (Ty) were candidates for the Office of
established principles of principles of law to deny an individual
Mayor of the Municipality of General Macarthur, Eastern Samar,
what he or she justly deserves in law. Moreover, in doing so, we
in the local elections held on 14 May 2007.
condemn ourselves to repeat the mistakes of the past.
On 15 June 2007, Japzon instituted SPA No. 07-568 by filing
WHEREFORE, having determined that petitioner possesses the
before the COMELEC a Petition5 to disqualify and/or cancel Ty’s
necessary residence qualifications to run for a seat in the House
Certificate of Candidacy on the ground of material
of Representatives in the First District of Leyte, the COMELEC's
misrepresentation. Japzon averred in his Petition that Ty was a
questioned Resolutions dated April 24, May 7, May 11, and May
former natural-born Filipino, having been born on 9 October 1943
25, 1995 are hereby SET ASIDE. Respondent COMELEC is
in what was then Pambujan Sur, Hernani Eastern Samar (now
hereby directed to order the Provincial Board of Canvassers to
the Municipality of General Macarthur, Easter Samar) to spouses
proclaim petitioner as the duly elected Representative of the First
Ang Chim Ty (a Chinese) and Crisanta Aranas Sumiguin (a
District of Leyte.
Filipino). Ty eventually migrated to the United States of America
(USA) and became a citizen thereof. Ty had been residing in the
SO ORDERED. USA for the last 25 years. When Ty filed his Certificate of
Candidacy on 28 March 2007, he falsely represented therein that
he was a resident of Barangay 6, Poblacion, General Macarthur,
Eastern Samar, for one year before 14 May 2007, and was not a
permanent resident or immigrant of any foreign country. While Ty
may have applied for the reacquisition of his Philippine
citizenship, he never actually resided in Barangay 6, Poblacion,
General Macarthur, Eastern Samar, for a period of one year
immediately preceding the date of election as required under
Section 39 of Republic Act No. 7160, otherwise known as the
Local Government Code of 1991. In fact, even after filing his
application for reacquisition of his Philippine citizenship, Ty
continued to make trips to the USA, the most recent of which was
on 31 October 2006 lasting until 20 January 2007. Moreover,
although Ty already took his Oath of Allegiance to the Republic of
the Philippines, he continued to comport himself as an American
citizen as proven by his travel records. He had also failed to
renounce his foreign citizenship as required by Republic Act No.
9225, otherwise known as the Citizenship Retention and
Reacquisition Act of 2003, or related laws. Hence, Japzon prayed
for in his Petition that the COMELEC order the disqualification of
Ty from running for public office and the cancellation of the
latter’s Certificate of Candidacy.
In his Answer6 to Japzon’s Petition in SPA No. 07-568, Ty
admitted that he was a natural-born Filipino who went to the USA
to work and subsequently became a naturalized American citizen.
Ty claimed, however, that prior to filing his Certificate of
Candidacy for the Office of Mayor of the Municipality of General
Macarthur, Eastern Samar, on 28 March 2007, he already
performed the following acts: (1) with the enactment of Republic
Act No. 9225, granting dual citizenship to natural-born Filipinos,
Ty filed with the Philippine Consulate General in Los Angeles,
California, USA, an application for the reacquisition of his
Philippine citizenship; (2) on 2 October 2005, Ty executed an
Oath of Allegiance to the Republic of the Philippines before
Noemi T. Diaz, Vice Consul of the Philippine Consulate General
in Los Angeles, California, USA; (3) Ty applied for a Philippine
passport indicating in his application that his residence in the
Philippines was at A. Mabini St., Barangay 6, Poblacion, General
Macarthur, Eastern Samar. Ty’s application was approved and he
was issued on 26 October 2005 a Philippine passport; (4) on 8
March 2006, Ty personally secured and signed his Community
Tax Certificate (CTC) from the Municipality of General Macarthur,
in which he stated that his address was at Barangay 6, Poblacion,
General Macarthur, Eastern Samar; (5) thereafter, on 17 July
2006, Ty was registered as a voter in Precinct 0013A, Barangay
6, Poblacion, General Macarthur, Eastern Samar; (6) Ty secured
another CTC dated 4 January 2007 again stating therein his
address as Barangay 6, Poblacion, General Macarthur, Eastern
Samar; and (7) finally, Ty executed on 19 March 2007 a duly
notarized Renunciation of Foreign Citizenship. Given the
aforementioned facts, Ty argued that he had reacquired his
Philippine citizenship and renounced his American citizenship,
and he had been a resident of the Municipality of General
Macarthur, Eastern Samar, for more than one year prior to the 14
May 2007 elections. Therefore, Ty sought the dismissal of
Japzon’s Petition in SPA No. 07-568.
Pending the submission by the parties of their respective Position
Papers in SPA No. 07-568, the 14 May 2007 elections were
already held. Ty acquired the highest number of votes and was
declared Mayor of the Municipality of General Macarthur, Eastern
Samar, by the Municipal Board of Canvassers on 15 May 2007. 7
Following the submission of the Position Papers of both parties,
the COMELEC First Division rendered its Resolution8 dated 31
July 2007 in favor of Ty.
The COMELEC First Division found that Ty complied with the
requirements of Sections 3 and 5 of Republic Act No. 9225 and
reacquired his Philippine citizenship, to wit:
Philippine citizenship is an indispensable requirement for holding
an elective public office, and the purpose of the citizenship
qualification is none other than to ensure that no alien, i.e., no
person owing allegiance to another nation, shall govern our
people and our country or a unit of territory thereof. Evidences
revealed that [Ty] executed an Oath of Allegiance before Noemi
T. Diaz, Vice Consul of the Philippine Consulate General, Los
Angeles, California, U.S.A. on October 2, 2005 and executed a
Renunciation of Foreign Citizenship on March 19, 2007 in
compliance with R.A. [No.] 9225. Moreover, neither is [Ty] a
candidate for or occupying public office nor is in active service as
commissioned or non-commissioned officer in the armed forces in
the country of which he was naturalized citizen.9
The COMELEC First Division also held that Ty did not commit
material misrepresentation in stating in his Certificate of
Candidacy that he was a resident of Barangay 6, Poblacion,
General Macarthur, Eastern Samar, for at least one year before
the elections on 14 May 2007. It reasoned that:
Although [Ty] has lost his domicile in [the] Philippines when he
was naturalized as U.S. citizen in 1969, the reacquisition of his
Philippine citizenship and subsequent acts thereof proved that he
has been a resident of Barangay 6, Poblacion, General
Macarthur, Eastern Samar for at least one (1) year before the
elections held on 14 May 2007 as he represented in his certificate
of candidacy[.]
As held in Coquilla vs. Comelec:
"The term ‘residence’ is to be understood not in its common
acceptation as referring to ‘dwelling’ or ‘habitation,’ but rather to
‘domicile’ or legal residence, that is, ‘the place where a party
actually or constructively has his permanent home, where he, no
matter where he may be found at any given time, eventually
intends to return and remain (animus manendi).’ A domicile of
origin is acquired by every person at birth. It is usually the place
where the child’s parents reside and continues until the same is
abandoned by acquisition of new domicile (domicile of choice).
In the case at bar, petitioner lost his domicile of origin in Oras by
becoming a U.S. citizen after enlisting in the U.S. Navy in 1965.
From then on and until November 10, 2000, when he reacquired
Philippine citizenship, petitioner was an alien without any right to
reside in the Philippines save as our immigration laws may have
allowed him to stay as a visitor or as a resident alien.
Indeed, residence in the United States is a requirement for
naturalization as a U.S. citizen. Title 8, §1427(a) of the United
States Code provides:
Requirements of naturalization: Residence
(a) No person, except as otherwise provided in this subchapter,
shall be naturalized unless such applicant, (1) year immediately
preceding the date of filing his application for naturalization has
resided continuously, after being lawfully admitted for permanent
residence, within the United States for at least five years and
during the five years immediately preceding the date of filing his
petition has been physically present therein for periods totaling at
least half of that time, and who has resided within the State or
within the district of the Service in the United States in which the
applicant filed the application for at least three months, (2) has
resided continuously within the United States from the date of the
application up to the time of admission to citizenship, and (3)
during all period referred to in this subsection has been and still is
a person of good moral character, attached to the principles of
the Constitution of the United States, and well disposed to the
good order and happiness of the United States. (Emphasis
added)
In Caasi v. Court of Appeals, this Court ruled that immigration to
the United States by virtue of a ‘greencard,’ which entitles one to
reside permanently in that country, constitutes abandonment of
domicile in the Philippines. With more reason then does
naturalization in a foreign country result in an abandonment of
domicile in the Philippines.
Records showed that after taking an Oath of Allegiance before
the Vice Consul of the Philippine Consulate General on October
2, 2005, [Ty] applied and was issued a Philippine passport on
October 26, 2005; and secured a community tax certificate from
the Municipality of General Macarthur on March 8, 2006.
Evidently, [Ty] was already a resident of Barangay 6, Poblacion,
General Macarthur, Eastern Samar for more than one (1) year
before the elections on May 14, 2007. 10 (Emphasis ours.)
The dispositive portion of the 31 July 2007 Resolution of the
COMELEC First Division, thus, reads:
WHEREFORE, premises considered, the petition is DENIED for
lack of merit.11
Japzon filed a Motion for Reconsideration of the foregoing
Resolution of the COMELEC First Division. On 28 September
2007, the COMELEC en banc issued its Resolution 12 denying
Japzon’s Motion for Reconsideration and affirming the assailed
Resolution of the COMELEC First Division, on the basis of the
following ratiocination:
We have held that a Natural born Filipino who obtains foreign
citizenship, and subsequently spurns the same, is by clear acts of
repatriation a Filipino Citizen and hence qualified to run as a
candidate for any local post.
xxxx
It must be noted that absent any showing of irregularity that
overturns the prevailing status of a citizen, the presumption of
regularity remains. Citizenship is an important aspect of every
individual’s constitutionally granted rights and privileges. This is
essential in determining whether one has the right to exercise
pre-determined political rights such as the right to vote or the right
to be elected to office and as such rights spring from citizenship.
Owing to its primordial importance, it is thus presumed that every
person is a citizen of the country in which he resides; that
citizenship once granted is presumably retained unless voluntarily
relinquished; and that the burden rests upon who alleges a
change in citizenship and allegiance to establish the fact.
Our review of the Motion for Reconsideration shows that it does
not raise any new or novel issues. The arguments made therein
have already been dissected and expounded upon extensively by
the first Division of the Commission, and there appears to be no
reason to depart from the wisdom of the earlier resolution. We
thus affirm that [Ty] did not commit any material
misrepresentation when he accomplished his Certificate of
Candidacy. The only ground for denial of a Certificate of
Candidacy would be when there was material misrepresentation
meant to mislead the electorate as to the qualifications of the
candidate. There was none in this case, thus there is not enough
reason to deny due course to the Certificate of Candidacy of
Respondent James S. Ty.13
Failing to obtain a favorable resolution from the COMELEC,
Japzon proceeded to file the instant Petition for Certiorari, relying
on the following grounds:
A. THE COMMISSION ON ELECTIONS COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT CAPRICIOUSLY, WHIMSICALLY
AND WANTONLY DISREGARDED THE PARAMETERS SET BY
LAW AND JURISPRUDENCE FOR THE ACQUISITION OF A
NEW DOMICILE OF CHOICE AND RESIDENCE.14
B. THE COMMISSION ON ELECTIONS COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT CAPRICIOUSLY, WHIMSICALLY
AND WANTONLY REFUSED TO CANCEL [TY’S] CERTIFICATE
OF CANDIDACY, AND CONSEQUENTLY DECLARE [JAPZON]
AS THE DULY ELECTED MAYOR OF GEN. MACARTHUR,
EASTERN SAMAR.15
Japzon argues that when Ty became a naturalized American
citizen, he lost his domicile of origin. Ty did not establish his
residence in the Municipality of General Macarthur, Eastern
Samar, Philippines, just because he reacquired his Philippine
citizenship. The burden falls upon Ty to prove that he established
a new domicile of choice in General Macarthur, Eastern Samar, a
burden which he failed to discharge. Ty did not become a
resident of General Macarthur, Eastern Samar, by merely
executing the Oath of Allegiance under Republic Act No. 9225.
Therefore, Japzon asserts that Ty did not meet the one-year
residency requirement for running as a mayoralty candidate in the
14 May 2007 local elections. The one-year residency requirement
for those running for public office cannot be waived or liberally
applied in favor of dual citizens. Consequently, Japzon believes
he was the only remaining candidate for the Office of Mayor of
the Municipality of General Macarthur, Eastern Samar, and is the
only placer in the 14 May 2007 local elections.
Japzon prays for the Court to annul and set aside the Resolutions
dated 31 July 2007 and 28 September 2007 of the COMELEC
First Division and en banc, respectively; to issue a new resolution
denying due course to or canceling Ty’s Certificate of Candidacy;
and to declare Japzon as the duly elected Mayor of the
Municipality of General Macarthur, Eastern Samar.
As expected, Ty sought the dismissal of the present Petition.
According to Ty, the COMELEC already found sufficient evidence
to prove that Ty was a resident of the Municipality of General
Macarthur, Eastern Samar, one year prior to the 14 May 2007
local elections. The Court cannot evaluate again the very same
pieces of evidence without violating the well-entrenched rule that
findings of fact of the COMELEC are binding on the Court. Ty
disputes Japzon’s assertion that the COMELEC committed grave
abuse of discretion in rendering the assailed Resolutions, and
avers that the said Resolutions were based on the evidence
presented by the parties and consistent with prevailing
jurisprudence on the matter. Even assuming that Ty, the winning
candidate for the Office of Mayor of the Municipality of General
Macarthur, Eastern Samar, is indeed disqualified from running in
the local elections, Japzon as the second placer in the same
elections cannot take his place.
The Office of the Solicitor General (OSG), meanwhile, is of the
position that Ty failed to meet the one-year residency requirement
set by law to qualify him to run as a mayoralty candidate in the 14
May 2007 local elections. The OSG opines that Ty was unable to
prove that he intended to remain in the Philippines for good and
ultimately make it his new domicile. Nonetheless, the OSG still
prays for the dismissal of the instant Petition considering that
Japzon, gathering only the second highest number of votes in the
local elections, cannot be declared the duly elected Mayor of the
Municipality of General Macarthur, Eastern Samar, even if Ty is
found to be disqualified from running for the said position. And
since it took a position adverse to that of the COMELEC, the
OSG prays from this Court to allow the COMELEC to file its own
Comment on Japzon’s Petition. The Court, however, no longer
acted on this particular prayer of the COMELEC, and with the
submission of the Memoranda by Japzon, Ty, and the OSG, it
already submitted the case for decision.
The Court finds no merit in the Petition at bar.
There is no dispute that Ty was a natural-born Filipino. He was
born and raised in the Municipality of General Macarthur, Eastern
Samar, Philippines. However, he left to work in the USA and
eventually became an American citizen. On 2 October 2005, Ty
reacquired his Philippine citizenship by taking his Oath of
Allegiance to the Republic of the Philippines before Noemi T.
Diaz, Vice Consul of the Philippine Consulate General in Los
Angeles, California, USA, in accordance with the provisions of
Republic Act No. 9225.16 At this point, Ty still held dual
citizenship, i.e., American and Philippine. It was only on 19 March
2007 that Ty renounced his American citizenship before a notary
public and, resultantly, became a pure Philippine citizen again.
It bears to point out that Republic Act No. 9225 governs the
manner in which a natural-born Filipino may reacquire or
retain17 his Philippine citizenship despite acquiring a foreign
citizenship, and provides for his rights and liabilities under such
circumstances. A close scrutiny of said statute would reveal that it
does not at all touch on the matter of residence of the natural-
born Filipino taking advantage of its provisions. Republic Act No.
9225 imposes no residency requirement for the reacquisition or
retention of Philippine citizenship; nor does it mention any effect
of such reacquisition or retention of Philippine citizenship on the
current residence of the concerned natural-born Filipino. Clearly,
Republic Act No. 9225 treats citizenship independently of
residence. This is only logical and consistent with the general
intent of the law to allow for dual citizenship. Since a natural-born
Filipino may hold, at the same time, both Philippine and foreign
citizenships, he may establish residence either in the Philippines
or in the foreign country of which he is also a citizen.
Residency in the Philippines only becomes relevant when the
natural-born Filipino with dual citizenship decides to run for public
office.
Section 5(2) of Republic Act No. 9225 reads:
SEC. 5. Civil and Political Rights and Liabilities. – Those who
retain or reacquire Philippine citizenship under this Act shall enjoy
full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall
meet the qualifications for holding such public office as required
by the Constitution and existing laws and, at the time of the filing
of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath.
Breaking down the afore-quoted provision, for a natural born
Filipino, who reacquired or retained his Philippine citizenship
under Republic Act No. 9225, to run for public office, he must: (1)
meet the qualifications for holding such public office as required
by the Constitution and existing laws; and (2) make a personal
and sworn renunciation of any and all foreign citizenships before
any public officer authorized to administer an oath.
That Ty complied with the second requirement is beyond
question. On 19 March 2007, he personally executed a
Renunciation of Foreign Citizenship before a notary public. By the
time he filed his Certificate of Candidacy for the Office of Mayor of
the Municipality of General Macarthur, Eastern Samar, on 28
March 2007, he had already effectively renounced his American
citizenship, keeping solely his Philippine citizenship.
The other requirement of Section 5(2) of Republic Act No. 9225
pertains to the qualifications required by the Constitution and
existing laws.
Article X, Section 3 of the Constitution left it to Congress to enact
a local government code which shall provide, among other things,
for the qualifications, election, appointment and removal, term,
salaries, powers and functions and duties of local officials, and all
other matters relating to the organization and operation of the
local units.
Pursuant to the foregoing mandate, Congress enacted Republic
Act No. 7160, the Local Government Code of 1991, Section 39 of
which lays down the following qualifications for local elective
officials:
SEC. 39. Qualifications. – (a) An elective local official must be a
citizen of the Philippines; a registered voter in the barangay,
municipality, city or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panlungsod, or
sanggunian bayan, the district where he intends to be elected; a
resident therein for at least one (1) year immediately preceding
the day of the election; and able to read and write Filipino or any
other local language or dialect.
xxxx
(c) Candidates for the position of mayor or vice mayor of
independent component cities, component cities, or municipalities
must be at least twenty-one (21) years of age on election day.
The challenge against Ty’s qualification to run as a candidate for
the Office of Mayor of the Municipality of General Macarthur,
Eastern Samar, centers on his purported failure to meet the one-
year residency requirement in the said municipality.
The term "residence" is to be understood not in its common
acceptation as referring to "dwelling" or "habitation," but rather to
"domicile" or legal residence, that is, "the place where a party
actually or constructively has his permanent home, where he, no
matter where he may be found at any given time, eventually
intends to return and remain (animus manendi)."18
A domicile of origin is acquired by every person at birth. It is
usually the place where the child’s parents reside and continues
until the same is abandoned by acquisition of new domicile
(domicile of choice). In Coquilla, 19 the Court already
acknowledged that for an individual to acquire American
citizenship, he must establish residence in the USA. Since Ty
himself admitted that he became a naturalized American citizen,
then he must have necessarily abandoned the Municipality of
General Macarthur, Eastern Samar, Philippines, as his domicile
of origin; and transferred to the USA, as his domicile of choice.
As has already been previously discussed by this Court herein,
Ty’s reacquisition of his Philippine citizenship under Republic Act
No. 9225 had no automatic impact or effect on his
residence/domicile. He could still retain his domicile in the USA,
and he did not necessarily regain his domicile in the Municipality
of General Macarthur, Eastern Samar, Philippines. Ty merely had
the option to again establish his domicile in the Municipality of
General Macarthur, Eastern Samar, Philippines, said place
becoming his new domicile of choice. The length of his residence
therein shall be determined from the time he made it his domicile
of choice, and it shall not retroact to the time of his birth.
How then could it be established that Ty indeed established a
new domicile in the Municipality of General Macarthur, Eastern
Samar, Philippines?
In Papandayan, Jr. v. Commission on Elections,20 the Court
provided a summation of the different principles and concepts in
jurisprudence relating to the residency qualification for elective
local officials. Pertinent portions of the ratio in Papandayan are
reproduced below:
Our decisions have applied certain tests and concepts in
resolving the issue of whether or not a candidate has complied
with the residency requirement for elective positions. The
principle of animus revertendi has been used to determine
whether a candidate has an "intention to return" to the place
where he seeks to be elected. Corollary to this is a determination
whether there has been an "abandonment" of his former
residence which signifies an intention to depart therefrom. In
Caasi v. Court of Appeals, this Court set aside the appealed
orders of the COMELEC and the Court of Appeals and annulled
the election of the respondent as Municipal Mayor of Bolinao,
Pangasinan on the ground that respondent’s immigration to the
United States in 1984 constituted an abandonment of his domicile
and residence in the Philippines. Being a green card holder,
which was proof that he was a permanent resident or immigrant
of the United States, and in the absence of any waiver of his
status as such before he ran for election on January 18, 1988,
respondent was held to be disqualified under §68 of the Omnibus
Election Code of the Philippines (Batas Pambansa Blg. 881).
In Co v. Electoral Tribunal of the House of Representatives,
respondent Jose Ong, Jr. was proclaimed the duly elected
representative of the 2nd District of Northern Samar. The House
of Representatives Electoral Tribunal (HRET) upheld his election
against claims that he was not a natural born Filipino citizen and
a resident of Laoang, Northern Samar. In sustaining the ruling of
the HRET, this Court, citing Faypon v. Quirino, applied the
concept of animus revertendi or "intent to return," stating that his
absence from his residence in order to pursue studies or practice
his profession as a certified public accountant in Manila or his
registration as a voter other than in the place where he was
elected did not constitute loss of residence. The fact that
respondent made periodical journeys to his home province in
Laoag revealed that he always had animus revertendi.
In Abella v. Commission on Elections and Larrazabal v.
Commission on Elections, it was explained that the determination
of a person’s legal residence or domicile largely depends upon
the intention that may be inferred from his acts, activities, and
utterances. In that case, petitioner Adelina Larrazabal, who had
obtained the highest number of votes in the local elections of
February 1, 1988 and who had thus been proclaimed as the duly
elected governor, was disqualified by the COMELEC for lack of
residence and registration qualifications, not being a resident nor
a registered voter of Kananga, Leyte. The COMELEC ruled that
the attempt of petitioner Larrazabal to change her residence one
year before the election by registering at Kananga, Leyte to
qualify her to run for the position of governor of the province of
Leyte was proof that she considered herself a resident of Ormoc
City. This Court affirmed the ruling of the COMELEC and held
that petitioner Larrazabal had established her residence in Ormoc
City, not in Kananga, Leyte, from 1975 up to the time that she ran
for the position of Provincial Governor of Leyte on February 1,
1988. There was no evidence to show that she and her husband
maintained separate residences, i.e., she at Kananga, Leyte and
her husband at Ormoc City. The fact that she occasionally visited
Kananga, Leyte through the years did not signify an intention to
continue her residence after leaving that place.
In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that
"domicile" and "residence" are synonymous. The term
"residence," as used in the election law, imports not only an
intention to reside in a fixed place but also personal presence in
that place, coupled with conduct indicative of such intention.
"Domicile" denotes a fixed permanent residence to which when
absent for business or pleasure, or for like reasons, one intends
to return. In that case, petitioner Philip G. Romualdez established
his residence during the early 1980’s in Barangay Malbog,
Tolosa, Leyte. It was held that the sudden departure from the
country of petitioner, because of the EDSA People’s Power
Revolution of 1986, to go into self-exile in the United States until
favorable conditions had been established, was not voluntary so
as to constitute an abandonment of residence. The Court
explained that in order to acquire a new domicile by choice, there
must concur (1) residence or bodily presence in the new locality,
(2) an intention to remain there, and (3) an intention to abandon
the old domicile. There must 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.
Ultimately, the Court recapitulates in Papandayan, Jr. that it is the
fact of residence that is the decisive factor in determining whether
or not an individual has satisfied the residency qualification
requirement.
As espoused by Ty, the issue of whether he complied with the
one-year residency requirement for running for public office is a
question of fact. Its determination requires the Court to review,
examine and evaluate or weigh the probative value of the
evidence presented by the parties before the COMELEC.
The COMELEC, taking into consideration the very same pieces of
evidence presently before this Court, found that Ty was a resident
of the Municipality of General Macarthur, Eastern Samar, one
year prior to the 14 May 2007 local elections. It is axiomatic that
factual findings of administrative agencies, such as the
COMELEC, which have acquired expertise in their field are
binding and conclusive on the Court. An application for certiorari
against actions of the COMELEC is confined to instances of
grave abuse of discretion amounting to patent and substantial
denial of due process, considering that the COMELEC is
presumed to be most competent in matters falling within its
domain.21
The Court even went further to say that the rule that factual
findings of administrative bodies will not be disturbed by courts of
justice, except when there is absolutely no evidence or no
substantial evidence in support of such findings, should be
applied with greater force when it concerns the COMELEC, as
the framers of the Constitution intended to place the COMELEC
—created and explicitly made independent by the Constitution
itself—on a level higher than statutory administrative organs. The
factual finding of the COMELEC en banc is therefore binding on
the Court.22
The findings of facts of quasi-judicial agencies which have
acquired expertise in the specific matters entrusted to their
jurisdiction are accorded by this Court not only respect but even
finality if they are supported by substantial evidence. Only
substantial, not preponderance, of evidence is necessary. Section
5, Rule 133 of the Rules of Court provides that in cases filed
before administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial evidence, or
that amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion. 23
The assailed Resolutions dated 31 July 2007 and 28 September
2007 of the COMELEC First Division and en banc, respectively,
were both supported by substantial evidence and are, thus,
binding and conclusive upon this Court.
Ty’s intent to establish a new domicile of choice in the
Municipality of General Macarthur, Eastern Samar, Philippines,
became apparent when, immediately after reacquiring his
Philippine citizenship on 2 October 2005, he applied for a
Philippine passport indicating in his application that his residence
in the Philippines was at A. Mabini St., Barangay 6, Poblacion,
General Macarthur, Eastern Samar. For the years 2006 and
2007, Ty voluntarily submitted himself to the local tax jurisdiction
of the Municipality of General Macarthur, Eastern Samar, by
paying community tax and securing CTCs from the said
municipality stating therein his address as A. Mabini St.,
Barangay 6, Poblacion, General Macarthur, Eastern Samar.
Thereafter, Ty applied for and was registered as a voter on 17
July 2006 in Precinct 0013A, Barangay 6, Poblacion, General
Macarthur, Eastern Samar.
In addition, Ty has also been bodily present in the Municipality of
General Macarthur, Eastern Samar, Philippines, since his arrival
on 4 May 2006, inarguably, just a little over a year prior to the 14
May 2007 local elections. Japzon maintains that Ty’s trips abroad
during said period, i.e., to Bangkok, Thailand (from 14 to 18 July
2006), and to the USA (from 31 October 2006 to 19 January
2007), indicate that Ty had no intention to permanently reside in
the Municipality of General Macarthur, Eastern Samar,
Philippines. The COMELEC First Division and en banc, as well as
this Court, however, view these trips differently. The fact that Ty
did come back to the Municipality of General Macarthur, Eastern
Samar, Philippines, after said trips, is a further manifestation of
his animus manendi and animus revertendi.
There is no basis for this Court to require Ty to stay in and never
leave at all the Municipality of General Macarthur, Eastern
Samar, for the full one-year period prior to the 14 May 2007 local
elections so that he could be considered a resident thereof. To
the contrary, the Court has previously ruled that absence from
residence to pursue studies or practice a profession or overriding such ineligibility and thereby giving effect to the
registration as a voter other than in the place where one is apparent will of the people would ultimately create greater
elected, does not constitute loss of residence.24 The Court also prejudice to the very democratic institutions and juristic traditions
notes, that even with his trips to other countries, Ty was actually that our Constitution and laws so zealously protect and promote.
present in the Municipality of General Macarthur, Eastern Samar, In this case, Japzon failed to substantiate his claim that Ty is
Philippines, for at least nine of the 12 months preceding the 14 ineligible to be Mayor of the Municipality of General Macarthur,
May 2007 local elections. Even if length of actual stay in a place Eastern Samar, Philippines.
is not necessarily determinative of the fact of residence therein, it
does strongly support and is only consistent with Ty’s avowed WHEREFORE, premises considered, the instant Petition for
intent in the instant case to establish residence/domicile in the Certiorari is DISMISSED.
Municipality of General Macarthur, Eastern Samar.
SO ORDERED.
Japzon repeatedly brings to the attention of this Court that Ty
arrived in the Municipality of General Macarthur, Eastern Samar,
on 4 May 2006 only to comply with the one-year residency
requirement, so Ty could run as a mayoralty candidate in the 14
May 2007 elections. In Aquino v. COMELEC,25 the Court did not
find anything wrong in an individual changing residences so he
could run for an elective post, for as long as he is able to prove
with reasonable certainty that he has effected a change of
residence for election law purposes for the period required by
law. As this Court already found in the present case, Ty has
proven by substantial evidence that he had established
residence/domicile in the Municipality of General Macarthur,
Eastern Samar, by 4 May 2006, a little over a year prior to the 14
May 2007 local elections, in which he ran as a candidate for the
Office of the Mayor and in which he garnered the most number of
votes.

Finally, when the evidence of the alleged lack of residence

qualification of a candidate for an elective position is weak or
inconclusive and it clearly appears that the purpose of the law
would not be thwarted by upholding the victor’s right to the office,
the will of the electorate should be respected. For the purpose of
election laws is to give effect to, rather than frustrate, the will of
the voters.26 To successfully challenge Ty’s disqualification,
Japzon must clearly demonstrate that Ty’s ineligibility is so
patently antagonistic to constitutional and legal principles that
G.R. No. 157013            July 10, 2003
ATTY. ROMULO B. MACALINTAL, petitioner,
vs.
COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in
his official capacity as Executive Secretary, and HON.
EMILIA T. BONCODIN, Secretary of the Department of
Budget and Management, respondents.
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and prohibition filed by
Romulo B. Macalintal, a member of the Philippine Bar, seeking a
declaration that certain provisions of Republic Act No. 9189 (The
Overseas Absentee Voting Act of 2003)1 suffer from constitutional
infirmity. Claiming that he has actual and material legal interest in
the subject matter of this case in seeing to it that public funds are
properly and lawfully used and appropriated, petitioner filed the
instant petition as a taxpayer and as a lawyer.
The Court upholds the right of petitioner to file the present
petition.
R.A. No. 9189, entitled, "An Act Providing for A System of
Overseas Absentee Voting by Qualified Citizens of the
Philippines Abroad, Appropriating Funds Therefor, and for Other
Purposes," appropriates funds under Section 29 thereof which
provides that a supplemental budget on the General
Appropriations Act of the year of its enactment into law shall
provide for the necessary amount to carry out its provisions.
Taxpayers, such as herein petitioner, have the right to restrain
officials from wasting public funds through the enforcement of an
unconstitutional statute.2 The Court has held that they may assail
the validity of a law appropriating public funds 3 because
expenditure of public funds by an officer of the State for the
purpose of executing an unconstitutional act constitutes a
misapplication of such funds.4
The challenged provision of law involves a public right that affects
a great number of citizens. The Court has adopted the policy of
taking jurisdiction over cases whenever the petitioner has
seriously and convincingly presented an issue of transcendental
significance to the Filipino people. This has been explicitly
pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng
Pilipinas, Inc. vs. Tan,5 where the Court held:
Objections to taxpayers’ suit for lack of sufficient
personality standing, or interest are, however, in the main
procedural matters. Considering the importance to the
public of the cases at bar, and in keeping with the Court’s
duty, under the 1987 Constitution, to determine whether
or not the other branches of government have kept
themselves within the limits of the Constitution and the
laws and that they have not abused the discretion given
to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of these petitions. 6
Indeed, in this case, the Court may set aside procedural rules as
the constitutional right of suffrage of a considerable number of
Filipinos is involved.
The question of propriety of the instant petition which may appear
to be visited by the vice of prematurity as there are no ongoing
proceedings in any tribunal, board or before a government official
exercising judicial, quasi-judicial or ministerial functions as
required by Rule 65 of the Rules of Court, dims in light of the
importance of the constitutional issues raised by the petitioner. In
Tañada vs. Angara,7 the Court held:
In seeking to nullify an act of the Philippine Senate on the
ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where an action of
the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute.
"The question thus posed is judicial rather than political.
 The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld." Once a
"controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in
the instant case), it becomes a legal issue which the
Court is bound by constitutional mandate to decide."
In another case of paramount impact to the Filipino people, it has
been expressed that it is illogical to await the adverse
consequences of the law in order to consider the controversy
actual and ripe for judicial resolution.8 In yet another case, the
Court said that:
. . . despite the inhibitions pressing upon the Court when
confronted with constitutional issues, it will not hesitate to
declare a law or act invalid when it is convinced that this
must be done. In arriving at this conclusion, its only
criterion will be the Constitution and God as its
conscience gives it in the light to probe its meaning and
discover its purpose. Personal motives and political
considerations are irrelevancies that cannot influence its
decisions. Blandishment is as ineffectual as intimidation,
for all the awesome power of the Congress and
Executive, the Court will not hesitate "to make the
hammer fall heavily," where the acts of these
departments, or of any official, betray the people’s will as
expressed in the Constitution . . .9
The need to consider the constitutional issues raised before the
Court is further buttressed by the fact that it is now more than
fifteen years since the ratification of the 1987 Constitution
requiring Congress to provide a system for absentee voting by
qualified Filipinos abroad. Thus, strong reasons of public policy
demand that the Court resolves the instant petition10 and
determine whether Congress has acted within the limits of the
Constitution or if it had gravely abused the discretion entrusted to
it.11
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing the
registration of voters who are immigrants or permanent
residents in other countries by their mere act of executing
an affidavit expressing their intention to return to the
Philippines, violate the residency requirement in Section 1
of Article V of the Constitution?
B. Does Section 18.5 of the same law empowering the
COMELEC to proclaim the winning candidates for
national offices and party list representatives including the
President and the Vice-President violate the constitutional
mandate under Section 4, Article VII of the Constitution
that the winning candidates for President and the Vice-
President shall be proclaimed as winners by Congress?
C. May Congress, through the Joint Congressional
Oversight Committee created in Section 25 of Rep. Act
No. 9189, exercise the power to review, revise, amend,
and approve the Implementing Rules and Regulations
that the Commission on Elections shall promulgate
without violating the independence of the COMELEC
under Section 1, Article IX-A of the Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1,
Article V of the 1987 Constitution of the Republic of the
Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. – The following shall be
disqualified from voting under this Act:
.........
 d) An immigrant or a permanent resident who is
recognized as such in the host country, unless he/she
executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall
resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of
his/her registration under this Act. Such affidavit shall also
state that he/she has not applied for citizenship in another
country. Failure to return shall be cause for the removal of
the name of the immigrant or permanent resident from the
National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia.
Petitioner posits that Section 5(d) is unconstitutional because it
violates Section 1, Article V of the 1987 Constitution which
requires that the voter must be a resident in the Philippines for at
least one year and in the place where he proposes to vote for at
least six months immediately preceding an election. Petitioner
cites the ruling of the Court in Caasi vs. Court of Appeals12 to
support his claim. In that case, the Court held that a "green card"
holder immigrant to the United States is deemed to have
abandoned his domicile and residence in the Philippines.
Petitioner further argues that Section 1, Article V of the
Constitution does not allow provisional registration or a promise
by a voter to perform a condition to be qualified to vote in a
political exercise;13 that the legislature should not be allowed to
circumvent the requirement of the Constitution on the right of
suffrage by providing a condition thereon which in effect amends
or alters the aforesaid residence requirement to qualify a Filipino
abroad to vote.14 He claims that the right of suffrage should not be
granted to anyone who, on the date of the election, does not
possess the qualifications provided for by Section 1, Article V of
the Constitution.
Respondent COMELEC refrained from commenting on this
issue.15
In compliance with the Resolution of the Court, the Solicitor
General filed his comment for all public respondents. He
contraposes that the constitutional challenge to Section 5(d) must
fail because of the absence of clear and unmistakable showing
that said provision of law is repugnant to the Constitution. He
stresses: All laws are presumed to be constitutional; by the
doctrine of separation of powers, a department of government
owes a becoming respect for the acts of the other two
departments; all laws are presumed to have adhered to
constitutional limitations; the legislature intended to enact a valid,
sensible, and just law.
In addition, the Solicitor General points out that Section 1, Article
V of the Constitution is a verbatim reproduction of those provided
for in the 1935 and the 1973 Constitutions. Thus, he cites Co vs.
Electoral Tribunal of the House of Representatives 16 wherein the
Court held that the term "residence" has been understood to be
synonymous with "domicile" under both Constitutions. He further
argues that a person can have only one "domicile" but he can
have two residences, one permanent (the domicile) and the other
temporary;17 and that the definition and meaning given to the term
residence likewise applies to absentee voters.
Invoking Romualdez-Marcos vs. COMELEC18 which reiterates the
Court’s ruling in Faypon vs. Quirino, 19 the Solicitor General
maintains that Filipinos who are immigrants or permanent
residents abroad may have in fact never abandoned their
Philippine domicile.20
Taking issue with the petitioner’s contention that "green card"
holders are considered to have abandoned their Philippine
domicile, the Solicitor General suggests that the Court may have
to discard its ruling in Caasi vs. Court of Appeals21 in so far as it
relates to immigrants and permanent residents in foreign
countries who have executed and submitted their affidavits
conformably with Section 5(d) of R.A. No. 9189. He maintains
that through the execution of the requisite affidavits, the Congress
of the Philippines with the concurrence of the President of the
Republic had in fact given these immigrants and permanent
residents the opportunity, pursuant to Section 2, Article V of the
Constitution, to manifest that they had in fact never abandoned
their Philippine domicile; that indubitably, they would have
formally and categorically expressed the requisite intentions, i.e.,
"animus manendi" and "animus revertendi;" that Filipino
immigrants and permanent residents abroad possess the
unquestionable right to exercise the right of suffrage under
Section 1, Article V of the Constitution upon approval of their
registration, conformably with R.A. No. 9189.22
The seed of the present controversy is the interpretation that is
given to the phrase, "qualified citizens of the Philippines abroad"
as it appears in R.A. No. 9189, to wit:
SEC. 2. Declaration of Policy. – It is the prime duty of the State to
provide a system of honest and orderly overseas absentee voting
that upholds the secrecy and sanctity of the ballot. Towards this
end, the State ensures equal opportunity to all qualified citizens
of the Philippines abroad in the exercise of this fundamental
right.
SEC. 3. Definition of Terms. – For purposes of this Act:
a) "Absentee Voting" refers to the process by
which qualified citizens of the Philippines
abroad, exercise their right to vote;
. . . (Emphasis supplied)
f) "Overseas Absentee Voter" refers to a citizen
of the Philippines who is qualified to register
and vote under this Act, not otherwise disqualified
by law, who is abroad on the day of elections.
(Emphasis supplied)
SEC. 4. Coverage. – All citizens of the Philippines
abroad, who are not otherwise disqualified by law, at
least eighteen (18) years of age on the day of elections,
may vote for president, vice-president, senators and
party-list representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which
read:
SEC. 1. Suffrage may be exercised by all citizens of the
Philippines not otherwise disqualified by law, who are at
least eighteen years of age, and who shall have resided
in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months
immediately preceding the election. No literacy, property,
or other substantive requirement shall be imposed on the
exercise of suffrage.
SEC. 2. The Congress shall provide a system for
securing the secrecy and sanctity of the ballot as well as a
system for absentee voting by qualified Filipinos
abroad.
. . . . . . . . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically provides that
suffrage may be exercised by (1) all citizens of the Philippines, (2)
not otherwise disqualified by law, (3) at least eighteen years of
age, (4) who are residents in the Philippines for at least one year
and in the place where they propose to vote for at least six
months immediately preceding the election. Under Section 5(d) of
R.A. No. 9189, one of those disqualified from voting is an
immigrant or permanent resident who is recognized as such in
the host country unless he/she executes an affidavit declaring
that he/she shall resume actual physical permanent residence in
the Philippines not later than three years from approval of his/her
registration under said Act.
Petitioner questions the rightness of the mere act of execution of
an affidavit to qualify the Filipinos abroad who are immigrants or
permanent residents, to vote. He focuses solely on Section 1,
Article V of the Constitution in ascribing constitutional infirmity to
Section 5(d) of R.A. No. 9189, totally ignoring the provisions of
Section 2 empowering Congress to provide a system for
absentee voting by qualified Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may
indeed give the impression that it contravenes Section 1, Article V
of the Constitution. Filipino immigrants and permanent residents
overseas are perceived as having left and abandoned the
Philippines to live permanently in their host countries and
therefore, a provision in the law enfranchising those who do not
possess the residency requirement of the Constitution by the
mere act of executing an affidavit expressing their intent to return
to the Philippines within a given period, risks a declaration of
unconstitutionality. However, the risk is more apparent than real.
The Constitution is the fundamental and paramount law of the
nation to which all other laws must conform and in accordance
with which all private rights must be determined and all public
authority administered.23 Laws that do not conform to the
Constitution shall be stricken down for being unconstitutional.
Generally, however, all laws are presumed to be constitutional.
In Peralta vs. COMELEC, the Court said:
. . . An act of the legislature, approved by the executive, is
presumed to be within constitutional limitations. The
responsibility of upholding the Constitution rests not on
the courts alone but on the legislature as well. The
question of the validity of every statute is first determined
by the legislative department of the government itself. 24
Thus, presumption of constitutionality of a law must be overcome
convincingly:
. . . To declare a law unconstitutional, the repugnancy of
that law to the Constitution must be clear and
unequivocal, for even if a law is aimed at the attainment of
some public good, no infringement of constitutional rights
is allowed. To strike down a law there must be a clear
showing that what the fundamental law condemns or
prohibits, the statute allows it to be done.25
As the essence of R.A. No. 9189 is to enfranchise overseas
qualified Filipinos, it behooves the Court to take a holistic view of
the pertinent provisions of both the Constitution and R.A. No.
9189. It is a basic rule in constitutional construction that the
Constitution should be construed as a whole. In Chiongbian vs.
De Leon,26 the Court held that a constitutional provision should
function to the full extent of its substance and its terms, not by
itself alone, but in conjunction with all other provisions of that
great document. Constitutional provisions are mandatory in
character unless, either by express statement or by necessary
implication, a different intention is manifest.27 The intent of the
Constitution may be drawn primarily from the language of the
document itself. Should it be ambiguous, the Court may consider
the intent of its framers through their debates in the constitutional
convention.28
R.A. No. 9189 was enacted in obeisance to the mandate of the
first paragraph of Section 2, Article V of the Constitution that
Congress shall provide a system for voting by qualified Filipinos
abroad. It must be stressed that Section 2 does not provide for
the parameters of the exercise of legislative authority in enacting
said law. Hence, in the absence of restrictions, Congress is
presumed to have duly exercised its function as defined in Article
VI (The Legislative Department) of the Constitution.
To put matters in their right perspective, it is necessary to dwell
first on the significance of absentee voting. The concept of
absentee voting is relatively new. It is viewed thus:
The method of absentee voting has been said to be
completely separable and distinct from the regular system
of voting, and to be a new and different manner of voting
from that previously known, and an exception to the
customary and usual manner of voting. The right of
absentee and disabled voters to cast their ballots at an
election is purely statutory; absentee voting was
unknown to, and not recognized at, the common law.
Absentee voting is an outgrowth of modern social and
economic conditions devised to accommodate those
engaged in military or civil life whose duties make it
impracticable for them to attend their polling places on the
day of election, and the privilege of absentee voting
may flow from constitutional provisions or be
conferred by statutes, existing in some jurisdictions, which
provide in varying terms for the casting and reception of
ballots by soldiers and sailors or other qualified voters
absent on election day from the district or precinct of their
residence.
Such statutes are regarded as conferring a privilege and
not a right, or an absolute right. When the legislature
chooses to grant the right by statute, it must operate
with equality among all the class to which it is
granted; but statutes of this nature may be limited in
their application to particular types of elections. The
statutes should be construed in the light of any
constitutional provisions affecting registration and
elections, and with due regard to their texts prior to
amendment and to predecessor statutes and the
decisions thereunder; they should also be construed in
the light of the circumstances under which they were
enacted; and so as to carry out the objects thereof, if this
can be done without doing violence to their provisions and
mandates. Further, in passing on statutes regulating
absentee voting, the court should look to the whole
and every part of the election laws, the intent of the
entire plan, and reasons and spirit of their adoption,
and try to give effect to every portion
thereof.29 (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person
cannot be at the same time, both a resident and an
absentee.30 However, under our election laws and the countless
pronouncements of the Court pertaining to elections, an absentee
remains attached to his residence in the Philippines
as residence is considered synonymous with domicile.
In Romualdez-Marcos,31 the Court enunciated:
Article 50 of the Civil Code decrees that "[f]or the exercise
of civil rights and the fulfillment of civil obligations, the
domicile of natural persons is their place of habitual
residence." In Ong vs. Republic, this court took the
concept of domicile to mean an individual’s "permanent
home," "a place to which, whenever absent for business
or for pleasure, one intends to return, and depends on
facts and circumstances in the sense that they disclose
intent." Based on the foregoing, domicile includes the twin
elements of "the fact of residing or physical presence in a
fixed place" and animus manendi, or the intention of
returning there permanently.
Residence, in its ordinary conception, implies the factual
relationship of an individual to a certain place. It is the
physical presence of a person in a given area, community
or country. The essential distinction between residence
and domicile in law is that residence involves the intent to
leave when the purpose for which the resident has taken
up his abode ends. One may seek a place for purposes
such as pleasure, business, or health. If a person’s intent
be to remain, it becomes his domicile; if his intent is to
leave as soon as his purpose is established it is
residence. It is thus, quite perfectly normal for an
individual to have different residences in various places.
 However, a person can only have a single domicile,
unless, for various reasons, he successfully abandons his
domicile in favor of another domicile of choice.
In Uytengsu vs. Republic, we laid this distinction quite
clearly:
"There is a difference between domicile and
residence. ‘Residence’ is used to indicate a place
of abode, whether permanent or temporary;
‘domicile’ denotes a fixed permanent residence to
which, when absent, one has the intention of
returning. A man may have a residence in one
place and a domicile in another. Residence is not
domicile, but domicile is residence coupled with
the intention to remain for an unlimited time. A
man can have but one domicile for the same
purpose at any time, but he may have numerous
places of residence. His place of residence is
generally his place of domicile, but it is not by any
means necessarily so since no length of
residence without intention of remaining will
constitute domicile."
For political purposes the concepts of residence and
domicile are dictated by the peculiar criteria of political
laws. As these concepts have evolved in our election
law, what has clearly and unequivocally emerged is
the fact that residence for election purposes is used
synonymously with domicile.32 (Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to
his residence in this country, the framers of the Constitution
considered the circumstances that impelled them to require
Congress to establish a system for overseas absentee voting,
thus:
MR. OPLE. With respect to Section 1, it is not clear
whether the right of suffrage, which here has a residential
restriction, is not denied to citizens temporarily residing or
working abroad. Based on the statistics of several
government agencies, there ought to be about two million
such Filipinos at this time. Commissioner Bernas had
earlier pointed out that these provisions are really lifted
from the two previous Constitutions of 1935 and 1973,
with the exception of the last paragraph. They could not
therefore have foreseen at that time the phenomenon
now described as the Filipino labor force explosion
overseas.
According to government data, there are now about
600,000 contract workers and employees, and although
the major portions of these expatriate communities of
workers are to be found in the Middle East, they are
scattered in 177 countries in the world.
In a previous hearing of the Committee on Constitutional
Commissions and Agencies, the Chairman of the
Commission on Elections, Ramon Felipe, said that there
was no insuperable obstacle to making effective the right
of suffrage for Filipinos overseas. Those who have
adhered to their Filipino citizenship notwithstanding strong
temptations are exposed to embrace a more convenient
foreign citizenship. And those who on their own or under
pressure of economic necessity here, find that they have
to detach themselves from their families to work in other
countries with definite tenures of employment. Many of
them are on contract employment for one, two, or three
years. They have no intention of changing their residence
on a permanent basis, but are technically disqualified
from exercising the right of suffrage in their countries of
destination by the residential requirement in Section 1
which says:
Suffrage shall be exercised by all citizens of the
Philippines not otherwise disqualified by law, who
are eighteen years of age or over, and who shall
 have resided in the Philippines for at least one
year and in the place wherein they propose to
vote for at least six months preceding the election.
I, therefore, ask the Committee whether at the proper time
they might entertain an amendment that will make this
exercise of the right to vote abroad for Filipino citizens an
effective, rather than merely a nominal right under this
proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that.
But more than just saying that, I would like to make a
comment on the meaning of "residence" in the
Constitution because I think it is a concept that has been
discussed in various decisions of the Supreme Court,
particularly in the case of Faypon vs. Quirino, a 1954 case
which dealt precisely with the meaning of "residence" in
the Election Law. Allow me to quote:
A citizen may leave the place of his birth to look
for greener pastures, as the saying goes, to
improve his lot and that, of course, includes study
in other places, practice of his avocation,
reengaging in business. When an election is to be
held, the citizen who left his birthplace to improve
his lot may decide to return to his native town, to
cast his ballot, but for professional or business
reasons, or for any other reason, he may not
absent himself from the place of his professional
or business activities.
So, they are here registered as voters as he has
the qualifications to be one, and is not willing to
give up or lose the opportunity to choose the
officials who are to run the government especially
in national elections. Despite such registration,
the animus revertendi to his home, to his domicile
or residence of origin has not forsaken him.
This may be the explanation why the registration of a voter in a
place other than his residence of origin has not been deemed
sufficient to consider abandonment or loss of such residence of
origin.
In other words, "residence" in this provision refers to two
residence qualifications: "residence" in the Philippines
and "residence" in the place where he will vote. As far as
residence in the Philippines is concerned, the word
"residence" means domicile, but as far as residence in the
place where he will actually cast his ballot is concerned,
the meaning seems to be different. He could have a
domicile somewhere else and yet he is a resident of a
place for six months and he is allowed to vote there. So
that there may be serious constitutional obstacles to
absentee voting, unless the vote of the person who is
absent is a vote which will be considered as cast in
the place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million
Filipinos who should enjoy the right of suffrage, at least a
substantial segment of these overseas Filipino
communities. The Committee, of course, is aware that
when this Article of the Constitution explicitly and
unequivocally extends the right of effective suffrage to
Filipinos abroad, this will call for a logistical exercise of
global proportions. In effect, this will require budgetary
and administrative commitments on the part of the
Philippine government, mainly through the COMELEC
and the Ministry of Foreign Affairs, and perhaps, a more
extensive elaboration of this mechanism that will be put in
place to make effective the right to vote.
Therefore, seeking shelter in some wise jurisprudence
of the past may not be sufficient to meet the demands
of the right of suffrage for Filipinos abroad that I have
mentioned. But I want to thank the Committee for saying
 that an amendment to this effect may be entertained at
the proper time. . . . . . . . . . 33 (Emphasis supplied)
Thus, the Constitutional Commission recognized the fact that
while millions of Filipinos reside abroad principally for economic
reasons and hence they contribute in no small measure to the
economic uplift of this country, their voices are marginal insofar
as the choice of this country’s leaders is concerned.
The Constitutional Commission realized that under the laws then
existing and considering the novelty of the system of absentee
voting in this jurisdiction, vesting overseas Filipinos with the right
to vote would spawn constitutional problems especially because
the Constitution itself provides for the residency requirement of
voters:
MR. REGALADO. Before I act on that, may I inquire from
Commissioner Monsod if the term "absentee voting" also
includes transient voting; meaning, those who are, let us
say, studying in Manila need not go back to their places of
registration, for instance, in Mindanao, to cast their votes.
MR. MONSOD. I think our provision is for absentee voting
by Filipinos abroad.
MR. REGALADO. How about those people who cannot
go back to the places where they are registered?
MR. MONSOD. Under the present Election Code, there
are provisions for allowing students and military people
who are temporarily in another place to register and vote.
I believe that those situations can be covered by the
Omnibus Election Code. The reason we want absentee
voting to be in the Constitution as a mandate to the
legislature is that there could be inconsistency on the
residence rule if it is just a question of legislation by
Congress. So, by allowing it and saying that this is
possible, then legislation can take care of the
rest.34 (Emphasis supplied)
Thus, Section 2, Article V of the Constitution came into being to
remove any doubt as to the inapplicability of the residency
requirement in Section 1. It is precisely to avoid any problems
that could impede the implementation of its pursuit to enfranchise
the largest number of qualified Filipinos who are not in the
Philippines that the Constitutional Commission explicitly
mandated Congress to provide a system for overseas absentee
voting.
The discussion of the Constitutional Commission on the effect of
the residency requirement prescribed by Section 1, Article V of
the Constitution on the proposed system of absentee voting for
qualified Filipinos abroad is enlightening:
MR. SUAREZ. May I just be recognized for a clarification.
There are certain qualifications for the exercise of the
right of suffrage like having resided in the Philippines for
at least one year and in the place where they propose to
vote for at least six months preceding the elections. What
is the effect of these mandatory requirements on the
matter of the exercise of the right of suffrage by the
absentee voters like Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod care to
answer?
MR. MONSOD. I believe the answer was already given by
Commissioner Bernas, that the domicile requirements as
well as the qualifications and disqualifications would be
the same.
THE PRESIDENT. Are we leaving it to the legislature to
devise the system?
FR. BERNAS. I think there is a very legitimate problem
raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is
clarified.
FR. BERNAS. But I think it should be further clarified with
regard to the residence requirement or the place where
they vote in practice; the understanding is that it is
flexible. For instance, one might be a resident of Naga or
domiciled therein, but he satisfies the requirement of
residence in Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to
the Committee to change the word "Filipinos" to
QUALIFIED FILIPINO VOTERS. Instead of "VOTING BY
FILIPINOS ABROAD," it should be QUALIFIED FILIPINO
VOTERS. If the Committee wants QUALIFIED VOTERS
LIVING ABROAD, would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod
say?
MR. MONSOD. Madam President, I think I would accept
the phrase "QUALIFIED FILIPINOS ABROAD" because
"QUALIFIED" would assume that he has the qualifications
and none of the disqualifications to vote.
MR. TINGSON. That is right. So does the Committee
accept?
FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?
THE PRESIDENT. Does the Committee accept the
amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is
recognized.
MR. REGALADO. When Commissioner Bengzon asked
me to read my proposed amendment, I specifically stated
that the National Assembly shall prescribe a system which
will enable qualified citizens, temporarily absent from the
Philippines, to vote. According to Commissioner Monsod,
the use of the phrase "absentee voting" already took that
into account as its meaning. That is referring to qualified
Filipino citizens temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say
that with respect to registration we will leave it up to
the legislative assembly, for example, to require
where the registration is. If it is, say, members of the
diplomatic corps who may be continuously abroad for
a long time, perhaps, there can be a system of
registration in the embassies. However, we do not like
to preempt the legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner
Monsod’s amendment is only to provide a system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here
that he wants new qualifications for these absentee
voters.
MR. MONSOD. That is right. They must have the
qualifications and none of the disqualifications.
THE PRESIDENT. It is just to devise a system by which
they can vote.
 MR. MONSOD. That is right, Madam
President.35 (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is
to entrust to Congress the responsibility of devising a system of
absentee voting. The qualifications of voters as stated in Section
1 shall remain except for the residency requirement. This is in fact
the reason why the Constitutional Commission opted for the
term qualified Filipinos abroad with respect to the system of
absentee voting that Congress should draw up. As stressed by
Commissioner Monsod, by the use of the adjective qualified with
respect to Filipinos abroad, the assumption is that they have the
"qualifications and none of the disqualifications to vote." In fine-
tuning the provision on absentee voting, the Constitutional
Commission discussed how the system should work:
MR. SUAREZ. For clarification purposes, we just want to
state for the record that in the case of qualified Filipino
citizens residing abroad and exercising their right of
suffrage, they can cast their votes for the candidates in
the place where they were registered to vote in the
Philippines. So as to avoid any complications, for
example, if they are registered in Angeles City, they could
not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in
Angeles City, then he can vote only for the local and
national candidates in Angeles City. I just want to make
that clear for the record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner Regalado
say?
MR. REGALADO. I just want to make a note on the
statement of Commissioner Suarez that this envisions
Filipinos residing abroad. The understanding in the
amendment is that the Filipino is temporarily abroad. He
may not be actually residing abroad; he may just be there
on a business trip. It just so happens that the day before
the elections he has to fly to the United States, so he
could not cast his vote. He is temporarily abroad, but not
residing there. He stays in a hotel for two days and comes
back. This is not limited only to Filipinos temporarily
residing abroad. But as long as he is temporarily
abroad on the date of the elections, then he can fall
within the prescription of Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further
clarification. Precisely, we need this clarification on
record.
MR. MONSOD. Madam President, to clarify what we
mean by "temporarily abroad," it need not be on very
short trips. One can be abroad on a treaty traders visa.
Therefore, when we talk about registration, it is possible
that his residence is in Angeles and he would be able to
vote for the candidates in Angeles, but Congress or the
Assembly may provide the procedure for registration,
like listing one’s name, in a registry list in the
embassy abroad. That is still possible under the system.
FR. BERNAS. Madam President, just one clarification if
Commissioner Monsod agrees with this.
Suppose we have a situation of a child of a diplomatic
officer who reaches the voting age while living abroad and
he has never registered here. Where will he register? Will
he be a registered voter of a certain locality in the
Philippines?
MR. MONSOD. Yes, it is possible that the system will
enable that child to comply with the registration
 requirements in an embassy in the United States and his
name is then entered in the official registration book in
Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter
of Los Angeles, but a registered voter of a locality here.
MR. MONSOD. That is right. He does not have to come
home to the Philippines to comply with the registration
procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader
wishes to inquire if there are more clarifications needed
from the body.
Also, the Floor Leader is happy to announce that there
are no more registered Commissioners to propose
amendments. So I move that we close the period of
amendments.36 (Emphasis supplied)
It is clear from these discussions of the members of the
Constitutional Commission that they intended to enfranchise as
much as possible all Filipino citizens abroad who have not
abandoned their domicile of origin. The Commission even
intended to extend to young Filipinos who reach voting age
abroad whose parents’ domicile of origin is in the Philippines, and
consider them qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided
for Section 2 immediately after the residency requirement of
Section 1. By the doctrine of necessary implication in statutory
construction, which may be applied in construing constitutional
provisions,37 the strategic location of Section 2 indicates that the
Constitutional Commission provided for an exception to the
actual residency requirement of Section 1 with respect to qualified
Filipinos abroad. The same Commission has in effect declared
that qualified Filipinos who are not in the Philippines may be
allowed to vote even though they do not satisfy the residency
requirement in Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to
the residency requirement found in Section 1 of the same Article
was in fact the subject of debate when Senate Bill No. 2104,
which became R.A. No. 9189, was deliberated upon on the
Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked
into in relation to the constitutional provisions. I think the
sponsor and I would agree that the Constitution is
supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution
entitled, "Suffrage." It says:
Section 1. Suffrage may be exercised by all
citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen
years of age, and who shall have resided in the
Philippines for at least one year and in the place
wherein they propose to vote for at least six
months immediately preceding the election.
Now, Mr. President, the Constitution says, "who shall
have resided in the Philippines." They are permanent
immigrants. They have changed residence so they are
barred under the Constitution. This is why I asked
whether this committee amendment which in fact does not
alter the original text of the bill will have any effect on
this?
Senator Angara. Good question, Mr. President. And this
has been asked in various fora. This is in compliance with
the Constitution. One, the interpretation here of
"residence" is synonymous with "domicile."
As the gentleman and I know, Mr. President, "domicile" is
the intent to return to one’s home. And the fact that a
Filipino may have been physically absent from the
Philippines and may be physically a resident of the
United States, for example, but has a clear intent to
return to the Philippines, will make him qualified as a
resident of the Philippines under this law.
This is consistent, Mr. President, with the constitutional
mandate that we – that Congress – must provide a
franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle
literally as demanding physical presence, then there
is no way we can provide for offshore voting to our
offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution
says, in Section 2 of Article V, it reads: "The Congress
shall provide a system for securing the secrecy and
sanctity of the ballot as well as a system for absentee
voting by qualified Filipinos abroad."
The key to this whole exercise, Mr. President, is
"qualified." In other words, anything that we may do
or say in granting our compatriots abroad must be
anchored on the proposition that they are qualified.
Absent the qualification, they cannot vote. And
"residents" (sic) is a qualification.
I will lose votes here from permanent residents so-called
"green-card holders", but the Constitution is the
Constitution. We cannot compromise on this. The Senate
cannot be a party to something that would affect or impair
the Constitution.
Look at what the Constitution says – "In the place wherein
they propose to vote for at least six months immediately
preceding the election."
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator
Cayetano lives. We are separated only by a creek. But
one who votes in Makati cannot vote in Pateros unless he
resides in Pateros for six months. That is how restrictive
our Constitution is. I am not talking even about the
Election Code. I am talking about the Constitution.
As I have said, if a voter in Makati would want to vote in
Pateros, yes, he may do so. But he must do so, make the
transfer six months before the election, otherwise, he is
not qualified to vote.
That is why I am raising this point because I think we
have a fundamental difference here.
Senator Angara. It is a good point to raise, Mr. President.
But it is a point already well-debated even in the
constitutional commission of 1986. And the reason
Section 2 of Article V was placed immediately after
the six-month/one-year residency requirement is to
demonstrate unmistakably that Section 2 which
authorizes absentee voting is an exception to the six-
month/one-year residency requirement. That is the first
principle, Mr. President, that one must remember.
The second reason, Mr. President, is that under our
jurisprudence – and I think this is so well-entrenched that
 one need not argue about it – "residency" has been
interpreted as synonymous with "domicile."
But the third more practical reason, Mr. President, is,
if we follow the interpretation of the gentleman, then it
is legally and constitutionally impossible to give a
franchise to vote to overseas Filipinos who do not
physically live in the country, which is quite
ridiculous because that is exactly the whole point of
this exercise – to enfranchise them and empower
them to vote.38 (Emphasis supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage
of the absentee voting process, to wit:
SEC. 4. Coverage. – All citizens of the Philippines abroad,
who are not otherwise disqualified by law, at least
eighteen (18) years of age on the day of elections, may
vote for president, vice-president, senators and party-list
representatives.
which does not require physical residency in the Philippines; and
Section 5 of the assailed law which enumerates those who are
disqualified, to wit:
SEC. 5. Disqualifications. – The following shall be
disqualified from voting under this Act:
a) Those who have lost their Filipino citizenship in
accordance with Philippine laws;
b) Those who have expressly renounced their Philippine
citizenship and who have pledged allegiance to a foreign
country;
c) Those who have committed and are convicted in a final
judgment by a court or tribunal of an offense punishable
by imprisonment of not less than one (1) year, including
those who have committed and been found guilty of
Disloyalty as defined under Article 137 of the Revised
Penal Code, such disability not having been removed by
plenary pardon or amnesty: Provided, however, That any
person disqualified to vote under this subsection shall
automatically acquire the right to vote upon expiration of
five (5) years after service of sentence; Provided, further,
That the Commission may take cognizance of final
judgments issued by foreign courts or tribunals only on
the basis of reciprocity and subject to the formalities and
processes prescribed by the Rules of Court on execution
of judgments;
d) An immigrant or a permanent resident who is
recognized as such in the host country, unless he/she
executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall
resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of
his/her registration under this Act. Such affidavit shall also
state that he/she has not applied for citizenship in another
country. Failure to return shall be cause for the removal of
the name of the immigrant or permanent resident from the
National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia.
e) Any citizen of the Philippines abroad previously
declared insane or incompetent by competent authority in
the Philippines or abroad, as verified by the Philippine
embassies, consulates or foreign service establishments
concerned, unless such competent authority
subsequently certifies that such person is no longer
insane or incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189
specifically disqualifies an immigrant or permanent resident who
is "recognized as such in the host country" because immigration
or permanent residence in another country implies renunciation of
one’s residence in his country of origin. However, same Section
allows an immigrant and permanent resident abroad to register as
voter for as long as he/she executes an affidavit to show that
he/she has not abandoned his domicile in pursuance of the
constitutional intent expressed in Sections 1 and 2 of Article V
that "all citizens of the Philippines not otherwise disqualified by
law" must be entitled to exercise the right of suffrage and, that
Congress must establish a system for absentee voting; for
otherwise, if actual, physical residence in the Philippines is
required, there is no sense for the framers of the Constitution to
mandate Congress to establish a system for absentee voting.
Contrary to the claim of petitioner, the execution of the affidavit
itself is not the enabling or enfranchising act. The affidavit
required in Section 5(d) is not only proof of the intention of the
immigrant or permanent resident to go back and resume
residency in the Philippines, but more significantly, it serves as an
explicit expression that he had not in fact abandoned his domicile
of origin. Thus, it is not correct to say that the execution of the
affidavit under Section 5(d) violates the Constitution that
proscribes "provisional registration or a promise by a voter to
perform a condition to be qualified to vote in a political exercise."
To repeat, the affidavit is required of immigrants and permanent
residents abroad because by their status in their host countries,
they are presumed to have relinquished their intent to return to
this country; thus, without the affidavit, the presumption of
abandonment of Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings
discloses another reason why the Senate required the execution
of said affidavit. It wanted the affiant to exercise the option to
return or to express his intention to return to his domicile of origin
and not to preempt that choice by legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: "For Filipino immigrants and those who have
acquired permanent resident status abroad," a
requirement for the registration is the submission of "a
Sworn Declaration of Intent to Return duly sworn before
any Philippine embassy or consulate official authorized to
administer oath…"
Mr. President, may we know the rationale of this
provision? Is the purpose of this Sworn Declaration to
include only those who have the intention of returning to
be qualified to exercise the right of suffrage? What if the
Filipino immigrant has no purpose of returning? Is he
automatically disbarred from exercising this right to
suffrage?
Senator Angara. The rationale for this, Mr. President,
is that we want to be expansive and all-inclusive in
this law. That as long as he is a Filipino, no matter
whether he is a green-card holder in the U.S. or not,
he will be authorized to vote. But if he is already a
green-card holder, that means he has acquired
permanent residency in the United States, then he
must indicate an intention to return. This is what
makes for the definition of "domicile." And to acquire
the vote, we thought that we would require the immigrants
and the green-card holders . . . Mr. President, the three
administration senators are leaving, maybe we may ask
for a vote [Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the
business at hand. The rationale for the requirement that
an immigrant or a green-card holder should file an
affidavit that he will go back to the Philippines is that, if he
is already an immigrant or a green-card holder, that
means he may not return to the country any more and
that contradicts the definition of "domicile" under the law.
 But what we are trying to do here, Mr. President, is
really provide the choice to the voter. The voter, after
consulting his lawyer or after deliberation within the
family, may decide "No, I think we are risking our
permanent status in the United States if we file an affidavit
that we want to go back." But we want to give him the
opportunity to make that decision. We do not want to
make that decision for him. 39 (Emphasis supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that
green card holders are disqualified to run for any elective office
finds no application to the present case because the Caasi case
did not, for obvious reasons, consider the absentee voting rights
of Filipinos who are immigrants and permanent residents in their
host countries.
In the advent of The Overseas Absentee Voting Act of 2003 or
R.A. 9189, they may still be considered as a "qualified citizen of
the Philippines abroad" upon fulfillment of the requirements of
registration under the new law for the purpose of exercising their
right of suffrage.
It must be emphasized that Section 5(d) does not only require an
affidavit or a promise to "resume actual physical permanent
residence in the Philippines not later than three years from
approval of his/her registration," the Filipinos abroad must also
declare that they have not applied for citizenship in another
country. Thus, they must return to the Philippines; otherwise, their
failure to return "shall be cause for the removal" of their names
"from the National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia."
Thus, Congress crafted a process of registration by which a
Filipino voter permanently residing abroad who is at least
eighteen years old, not otherwise disqualified by law, who has not
relinquished Philippine citizenship and who has not actually
abandoned his/her intentions to return to his/her domicile of
origin, the Philippines, is allowed to register and vote in the
Philippine embassy, consulate or other foreign service
establishments of the place which has jurisdiction over the
country where he/she has indicated his/her address for purposes
of the elections, while providing for safeguards to a clean
election.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in Absentia. –
11.1. Every qualified citizen of the Philippines abroad
whose application for registration has been approved,
including those previously registered under Republic Act
No. 8189, shall, in every national election, file with the
officer of the embassy, consulate or other foreign service
establishment authorized by the Commission, a sworn
written application to vote in a form prescribed by the
Commission. The authorized officer of such embassy,
consulate or other foreign service establishment shall
transmit to the Commission the said application to vote
within five (5) days from receipt thereof. The application
form shall be accomplished in triplicate and submitted
together with the photocopy of his/her overseas absentee
voter certificate of registration.
11.2. Every application to vote in absentia may be done
personally at, or by mail to, the embassy, consulate or
foreign service establishment, which has jurisdiction over
the country where he/she has indicated his/her address
for purposes of the elections.
11.3. Consular and diplomatic services rendered in
connection with the overseas absentee voting processes
shall be made available at no cost to the overseas
absentee voter.
Contrary to petitioner’s claim that Section 5(d) circumvents the
Constitution, Congress enacted the law prescribing a system of
overseas absentee voting in compliance with the constitutional
mandate. Such mandate expressly requires that Congress
provide a system of absentee voting that necessarily
presupposes that the "qualified citizen of the Philippines abroad"
is not physically present in the country. The provisions of
Sections 5(d) and 11 are components of the system of overseas
absentee voting established by R.A. No. 9189. The qualified
Filipino abroad who executed the affidavit is deemed to have
retained his domicile in the Philippines. He is presumed not to
have lost his domicile by his physical absence from this country.
His having become an immigrant or permanent resident of his
host country does not necessarily imply an abandonment of his
intention to return to his domicile of origin, the Philippines.
Therefore, under the law, he must be given the opportunity to
express that he has not actually abandoned his domicile in the
Philippines by executing the affidavit required by Sections 5(d)
and 8(c) of the law.
Petitioner’s speculative apprehension that the implementation of
Section 5(d) would affect the credibility of the elections is
insignificant as what is important is to ensure that all those who
possess the qualifications to vote on the date of the election are
given the opportunity and permitted to freely do so. The
COMELEC and the Department of Foreign Affairs have enough
resources and talents to ensure the integrity and credibility of any
election conducted pursuant to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his
undertaking to return to the Philippines, the penalty of perpetual
disenfranchisement provided for by Section 5(d) would suffice to
serve as deterrence to non-compliance with his/her undertaking
under the affidavit.
Petitioner argues that should a sizable number of "immigrants"
renege on their promise to return, the result of the elections would
be affected and could even be a ground to contest the
proclamation of the winning candidates and cause further
confusion and doubt on the integrity of the results of the election.
Indeed, the probability that after an immigrant has exercised the
right to vote, he shall opt to remain in his host country beyond the
third year from the execution of the affidavit, is not farfetched.
However, it is not for this Court to determine the wisdom of a
legislative exercise. As expressed in Tañada vs. Tuvera,40 the
Court is not called upon to rule on the wisdom of the law or to
repeal it or modify it if we find it impractical.
Congress itself was conscious of said probability and in fact, it
has addressed the expected problem. Section 5(d) itself provides
for a deterrence which is that the Filipino who fails to return as
promised stands to lose his right of suffrage. Under Section 9,
should a registered overseas absentee voter fail to vote for two
consecutive national elections, his name may be ordered
removed from the National Registry of Overseas Absentee
Voters.
Other serious legal questions that may be raised would be: what
happens to the votes cast by the qualified voters abroad who
were not able to return within three years as promised? What is
the effect on the votes cast by the non-returnees in favor of the
winning candidates? The votes cast by qualified Filipinos abroad
who failed to return within three years shall not be invalidated
because they were qualified to vote on the date of the elections,
but their failure to return shall be cause for the removal of the
names of the immigrants or permanent residents from the
National Registry of Absentee Voters and their permanent
disqualification to vote in absentia.
In fine, considering the underlying intent of the Constitution, the
Court does not find Section 5(d) of R.A. No. 9189 as
constitutionally defective.
B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of
the same Act in contravention of Section 4, Article VII of the
Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee
voter may vote for president, vice-president, senators and party-
list representatives.
Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing. –
.........
18. 5 The canvass of votes shall not cause the delay of
the proclamation of a winning candidate if the outcome of
the election will not be affected by the results thereof.
Notwithstanding the foregoing, the Commission is
empowered to order the proclamation of winning
candidates despite the fact that the scheduled election
has not taken place in a particular country or countries, if
the holding of elections therein has been rendered
impossible by events, factors and circumstances peculiar
to such country or countries, in which events, factors and
circumstances are beyond the control or influence of the
Commission. (Emphasis supplied)
Petitioner claims that the provision of Section 18.5 of R.A. No.
9189 empowering the COMELEC to order the proclamation of
winning candidates insofar as it affects the canvass of votes and
proclamation of winning candidates for president and vice-
president, is unconstitutional because it violates the following
provisions of paragraph 4, Section 4 of Article VII of the
Constitution:
SEC. 4 . . .
The returns of every election for President and Vice-
President, duly certified by the board of canvassers of
each province or city, shall be transmitted to the
Congress, directed to the President of the Senate. Upon
receipt of the certificates of canvass, the President of the
Senate shall, not later than thirty days after the day of the
election, open all the certificates in the presence of the
Senate and the House of Representatives in joint public
session, and the Congress, upon determination of the
authenticity and due execution thereof in the manner
provided by law, canvass the votes.
The person having the highest number of votes shall be
proclaimed elected, but in case two or more shall have an
equal and highest number of votes, one of them shall
forthwith be chosen by the vote of a majority of all the
Members of both Houses of the Congress, voting
separately.
The Congress shall promulgate its rules for the
canvassing of the certificates.
...
which gives to Congress the duty to canvass the votes and
proclaim the winning candidates for president and vice-president.
The Solicitor General asserts that this provision must be
harmonized with paragraph 4, Section 4, Article VII of the
Constitution and should be taken to mean that COMELEC can
only proclaim the winning Senators and party-list representatives
but not the President and Vice-President.41
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in
Section 18.5 of R.A. No. 9189 is far too sweeping that it
necessarily includes the proclamation of the winning candidates
for the presidency and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section
4, Article VII of the Constitution only insofar as said Section totally
disregarded the authority given to Congress by the Constitution to
proclaim the winning candidates for the positions of president and
vice-president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the
canvass, the chairman of the Special Board of
Canvassers shall transmit via facsimile, electronic mail, or
any other means of transmission equally safe and reliable
the Certificates of Canvass and the Statements of
Votes to the Commission, . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution
which provides that the returns of every election for President and
Vice-President shall be certified by the board of canvassers to
Congress.
Congress could not have allowed the COMELEC to usurp a
power that constitutionally belongs to it or, as aptly stated by
petitioner, to encroach "on the power of Congress to canvass the
votes for president and vice-president and the power to proclaim
the winners for the said positions." The provisions of the
Constitution as the fundamental law of the land should be read as
part of The Overseas Absentee Voting Act of 2003 and hence,
the canvassing of the votes and the proclamation of the winning
candidates for president and vice-president for the entire nation
must remain in the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of
Section 1, Article IX-A of the Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate
Article IX-A (Common Provisions) of the Constitution, to wit:
Section 1. The Constitutional Commissions, which shall
be independent, are the Civil Service Commission, the
Commission on Elections, and the Commission on Audit.
(Emphasis supplied)
He submits that the creation of the Joint Congressional Oversight
Committee with the power to review, revise, amend and approve
the Implementing Rules and Regulations promulgated by the
COMELEC, R.A. No. 9189 intrudes into the independence of the
COMELEC which, as a constitutional body, is not under the
control of either the executive or legislative departments of
government; that only the COMELEC itself can promulgate rules
and regulations which may be changed or revised only by the
majority of its members; and that should the rules promulgated by
the COMELEC violate any law, it is the Court that has the power
to review the same via the petition of any interested party,
including the legislators.
It is only on this question that respondent COMELEC submitted
its Comment. It agrees with the petitioner that Sections 19 and 25
of R.A. No. 9189 are unconstitutional. Like the petitioner,
respondent COMELEC anchors its claim of unconstitutionality of
said Sections upon Section 1, Article IX-A of the Constitution
providing for the independence of the constitutional commissions
such as the COMELEC. It asserts that its power to formulate
rules and regulations has been upheld in Gallardo vs. Tabamo,
Jr.42 where this Court held that the power of the COMELEC to
formulate rules and regulations is implicit in its power to
implement regulations under Section 2(1) of Article IX-C43 of the
Constitution. COMELEC joins the petitioner in asserting that as
an independent constitutional body, it may not be subject to
interference by any government instrumentality and that only this
Court may review COMELEC rules and only in cases of grave
abuse of discretion.
The COMELEC adds, however, that another provision, vis-à-vis
its rule-making power, to wit:
 SEC. 17. Voting by Mail. –
17.1. For the May, 2004 elections, the Commission shall
authorize voting by mail in not more than three (3)
countries, subject to the approval of the
Congressional Oversight Committee. Voting by mail
may be allowed in countries that satisfy the following
conditions:
a) Where the mailing system is fairly well-developed and
secure to prevent occasion for fraud;
b) Where there exists a technically established
identification system that would preclude multiple or proxy
voting; and
c) Where the system of reception and custody of mailed
ballots in the embassies, consulates and other foreign
service establishments concerned are adequate and well-
secured.
Thereafter, voting by mail in any country shall be
allowed only upon review and approval of the Joint
Congressional Oversight Committee . . . . . . . . .
(Emphasis supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A
mandating the independence of constitutional commissions.
The Solicitor General takes exception to his prefatory statement
that the constitutional challenge must fail and agrees with the
petitioner that Sections 19 and 25 are invalid and unconstitutional
on the ground that there is nothing in Article VI of the Constitution
on Legislative Department that would as much as imply that
Congress has concurrent power to enforce and administer
election laws with the COMELEC; and by the principles
of exclusio unius est exclusio alterius and expressum facit
cessare tacitum, the constitutionally enumerated powers of
Congress circumscribe its authority to the exclusion of all others.
The parties are unanimous in claiming that Sections 19, 25 and
portions of Section 17.1 are unconstitutional. Thus, there is no
actual issue forged on this question raised by petitioner.
However, the Court finds it expedient to expound on the role of
Congress through the Joint Congressional Oversight Committee
(JCOC) vis-à-vis the independence of the COMELEC, as a
constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. – A
Joint Congressional Oversight Committee is hereby
created, composed of the Chairman of the Senate
Committee on Constitutional Amendments, Revision of
Codes and Laws, and seven (7) other Senators
designated by the Senate President, and the Chairman of
the House Committee on Suffrage and Electoral Reforms,
and seven (7) other Members of the House of
Representatives designated by the Speaker of the House
of Representatives: Provided, That, of the seven (7)
members to be designated by each House of Congress,
four (4) should come from the majority and the remaining
three (3) from the minority.
The Joint Congressional Oversight Committee shall
have the power to monitor and evaluate the
implementation of this Act. It shall review, revise,
amend and approve the Implementing Rules and
Regulations promulgated by the
Commission. (Emphasis supplied)
SEC. 19. Authority of the Commission to Promulgate
Rules. – The Commission shall issue the necessary rules
 and regulations to effectively implement the provisions of
this Act within sixty (60) days from the effectivity of this
Act. The Implementing Rules and Regulations shall be
submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior
approval.
. . . . . . . . . (Emphasis supplied)
Composed of Senators and Members of the House of
Representatives, the Joint Congressional Oversight Committee
(JCOC) is a purely legislative body. There is no question that the
authority of Congress to "monitor and evaluate the
implementation" of R.A. No. 9189 is geared towards possible
amendments or revision of the law itself and thus, may be
performed in aid of its legislation.
However, aside from its monitoring and evaluation functions, R.A.
No. 9189 gives to the JCOC the following functions: (a) to
"review, revise, amend and approve the Implementing Rules and
Regulations" (IRR) promulgated by the COMELEC [Sections 25
and 19]; and (b) subject to the approval of the JCOC [Section
17.1], the voting by mail in not more than three countries for the
May 2004 elections and in any country determined by
COMELEC.
The ambit of legislative power under Article VI of the Constitution
is circumscribed by other constitutional provisions. One such
provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC
shall be "independent."
Interpreting Section 1, Article X of the 1935 Constitution providing
that there shall be an independent COMELEC, the Court has held
that "[w]hatever may be the nature of the functions of the
Commission on Elections, the fact is that the framers of the
Constitution wanted it to be independent from the other
departments of the Government." 44 In an earlier case, the Court
elucidated:
The Commission on Elections is a constitutional body. It is
intended to play a distinct and important part in our
scheme of government. In the discharge of its functions, it
should not be hampered with restrictions that would be
fully warranted in the case of a less responsible
organization. The Commission may err, so may this court
also. It should be allowed considerable latitude in
devising means and methods that will insure the
accomplishment of the great objective for which it was
created – free, orderly and honest elections. We may not
agree fully with its choice of means, but unless these are
clearly illegal or constitute gross abuse of discretion, this
court should not interfere. Politics is a practical matter,
and political questions must be dealt with realistically –
not from the standpoint of pure theory. The Commission
on Elections, because of its fact-finding facilities, its
contacts with political strategists, and its knowledge
derived from actual experience in dealing with political
controversies, is in a peculiarly advantageous position to
decide complex political questions.45 (Emphasis supplied)
The Court has no general powers of supervision over COMELEC
which is an independent body "except those specifically granted
by the Constitution," that is, to review its decisions, orders and
rulings.46 In the same vein, it is not correct to hold that because of
its recognized extensive legislative power to enact election laws,
Congress may intrude into the independence of the COMELEC
by exercising supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has
empowered the COMELEC to "issue the necessary rules and
regulations to effectively implement the provisions of this Act
within sixty days from the effectivity of this Act." This provision of
law follows the usual procedure in drafting rules and regulations
to implement a law – the legislature grants an administrative
agency the authority to craft the rules and regulations
implementing the law it has enacted, in recognition of the
administrative expertise of that agency in its particular field of
operation.47 Once a law is enacted and approved, the legislative
function is deemed accomplished and complete. The legislative
function may spring back to Congress relative to the same law
only if that body deems it proper to review, amend and revise the
law, but certainly not to approve, review, revise and amend the
IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and
revise the IRR for The Overseas Absentee Voting Act of 2003,
Congress went beyond the scope of its constitutional authority.
Congress trampled upon the constitutional mandate of
independence of the COMELEC. Under such a situation, the
Court is left with no option but to withdraw from its usual reticence
in declaring a provision of law unconstitutional.
The second sentence of the first paragraph of Section 19 stating
that "[t]he Implementing Rules and Regulations shall be
submitted to the Joint Congressional Oversight Committee
created by virtue of this Act for prior approval," and the second
sentence of the second paragraph of Section 25 stating that "[i]t
shall review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the Commission," whereby
Congress, in both provisions, arrogates unto itself a function not
specifically vested by the Constitution, should be stricken out of
the subject statute for constitutional infirmity. Both provisions
brazenly violate the mandate on the independence of the
COMELEC.
Similarly, the phrase, "subject to the approval of the
Congressional Oversight Committee" in the first sentence of
Section 17.1 which empowers the Commission to authorize
voting by mail in not more than three countries for the May, 2004
elections; and the phrase, "only upon review and approval of the
Joint Congressional Oversight Committee" found in the second
paragraph of the same section are unconstitutional as they
require review and approval of voting by mail in any country after
the 2004 elections. Congress may not confer upon itself the
authority to approve or disapprove the countries wherein voting
by mail shall be allowed, as determined by the COMELEC
pursuant to the conditions provided for in Section 17.1 of R.A. No.
9189.48 Otherwise, Congress would overstep the bounds of its
constitutional mandate and intrude into the independence of the
COMELEC.
During the deliberations, all the members of the Court agreed to
adopt the separate opinion of Justice Reynato S. Puno as part of
the ponencia on the unconstitutionality of Sections 17.1, 19 and
25 of R.A. No. 9189 insofar as they relate to the creation of and
the powers given to the Joint Congressional Oversight
Committee.
WHEREFORE, the petition is partly GRANTED. The
following portions of R.A. No. 9189 are declared VOID for
being UNCONSTITUTIONAL:
a) The phrase in the first sentence of the first paragraph
of Section 17.1, to wit: "subject to the approval of the
Joint Congressional Oversight Committee;"
b) The portion of the last paragraph of Section 17.1, to
wit: "only upon review and approval of the Joint
Congressional Oversight Committee;"
c) The second sentence of the first paragraph of Section
19, to wit: "The Implementing Rules and Regulations
shall be submitted to the Joint Congressional
Oversight Committee created by virtue of this Act for
prior approval;" and
 d) The second sentence in the second paragraph of
Section 25, to wit: "It shall review, revise, amend and
approve the Implementing Rules and Regulations
promulgated by the Commission" of the same law;
for being repugnant to Section 1, Article IX-A of the Constitution
mandating the independence of constitutional commission, such
as COMELEC.
The constitutionality of Section 18.5 of R.A. No. 9189
is UPHELD with respect only to the authority given to the
COMELEC to proclaim the winning candidates for the Senators
and party-list representatives but not as to the power to canvass
the votes and proclaim the winning candidates for President and
Vice-President which is lodged with Congress under Section 4,
Article VII of the Constitution.
The constitutionality of Section 5(d) is UPHELD.
Pursuant to Section 30 of R.A. No. 9189, the rest of the
provisions of said law continues to be in full force and effect.
SO ORDERED.
G.R. No. 162759 August 4, 2006
LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA,
ALEJANDRO A. ESCLAMADO, ARMANDO B. HEREDIA,
REUBEN S. SEGURITAN, ERIC LACHICA FURBEYRE,
TERESITA A. CRUZ, JOSEFINA OPENA DISTERHOFT,
MERCEDES V. OPENA, CORNELIO R. NATIVIDAD, EVELYN
D. NATIVIDAD, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
GARCIA, J.:
In this petition for certiorari and mandamus, petitioners, referring
to themselves as "duals" or dual citizens, pray that they and
others who retained or reacquired Philippine citizenship under
Republic Act (R.A.) No. 9225, the Citizenship Retention and
Re-Acquisition Act of 2003, be allowed to avail themselves of the
mechanism provided under the Overseas Absentee Voting Act of
2003 1 (R.A. 9189) and that the Commission on Elections
(COMELEC) accordingly be ordered to allow them to vote and
register as absentee voters under the aegis of R.A. 9189.
The facts:
Petitioners are successful applicants for recognition of Philippine
citizenship under R.A. 9225 which accords to such applicants the
right of suffrage, among others. Long before the May 2004
national and local elections, petitioners sought registration and
certification as "overseas absentee voter" only to be advised by
the Philippine Embassy in the United States that, per a
COMELEC letter to the Department of Foreign Affairs dated
September 23, 2003 2, they have yet no right to vote in such
elections owing to their lack of the one-year residence
requirement prescribed by the Constitution. The same letter,
however, urged the different Philippine posts abroad not to
discontinue their campaign for voter’s registration, as the
residence restriction adverted to would contextually affect merely
certain individuals who would likely be eligible to vote in future
elections.
Prodded for clarification by petitioner Loida Nicolas-Lewis in the
light of the ruling in Macalintal vs. COMELEC 3 on the residency
requirement, the COMELEC wrote in response:
Although R.A. 9225 enjoys the presumption of constitutionality …,
it is the Commission's position that those who have availed of the
law cannot exercise the right of suffrage given under the OAVL
for the reason that the OAVL was not enacted for them. Hence,
as Filipinos who have merely re-acquired their citizenship on 18
September 2003 at the earliest, and as law and jurisprudence
now stand, they are considered regular voters who have to meet
the requirements of residency, among others under Section 1,
Article 5 of the Constitution. 4
Faced with the prospect of not being able to vote in the May 2004
elections owing to the COMELEC's refusal to include them in the
National Registry of Absentee Voters, petitioner Nicolas-Lewis et
al., 5 filed on April 1, 2004 this petition for certiorari and
mandamus.
A little over a week before the May 10, 2004 elections, or on April
30, 2004, the COMELEC filed a Comment, 6 therein praying for
the denial of the petition. As may be expected, petitioners were
not able to register let alone vote in said elections.
On May 20, 2004, the Office of the Solicitor General (OSG) filed a
Manifestation (in Lieu of Comment), therein stating that "all
qualified overseas Filipinos, including dual citizens who care to
exercise the right of suffrage, may do so" , observing, however,
that the conclusion of the 2004 elections had rendered the
petition moot and academic. 7
The holding of the 2004 elections had, as the OSG pointed out,
indeed rendered the petition moot and academic, but insofar only
as petitioners’ participation in such political exercise is concerned.
The broader and transcendental issue tendered or subsumed in
the petition, i.e., the propriety of allowing "duals" to participate
and vote as absentee voter in future elections, however, remains
unresolved.
Observing the petitioners’ and the COMELEC’s respective
formulations of the issues, the same may be reduced into the
question of whether or not petitioners and others who might have
meanwhile retained and/or reacquired Philippine citizenship
pursuant to R.A. 9225 may vote as absentee voter under R.A.
9189.
The Court resolves the poser in the affirmative, and thereby
accords merit to the petition.
In esse, this case is all about suffrage. A quick look at the
governing provisions on the right of suffrage is, therefore,
indicated.
We start off with Sections 1 and 2 of Article V of the Constitution,
respectively reading as follows:
SECTION 1. Suffrage may be exercised by all citizens of the
Philippines not otherwise disqualified by law, who are at least
eighteen years of age, and who shall have resided in the
Philippines for at least one year and in the place wherein they
propose to vote for at least six months immediately preceding the
election. xxx.
SEC 2. The Congress shall provide … a system for absentee
voting by qualified Filipinos abroad.
 In a nutshell, the aforequoted Section 1 prescribes residency
requirement as a general eligibility factor for the right to vote. On
the other hand, Section 2 authorizes Congress to devise a
system wherein an absentee may vote, implying that a
non-resident may, as an exception to the residency prescription in
the preceding section, be allowed to vote.
In response to its above mandate, Congress enacted R.A. 9189 -
the OAVL 8 - identifying in its Section 4 who can vote under it and
in the following section who cannot, as follows:
Section 4. Coverage. – All citizens of the Philippines abroad, who
are not otherwise disqualified by law, at least eighteen (18) years
of age on the day of elections, may vote for president, vice-
president, senators and party-list representatives.
Section 5. Disqualifications. – The following shall be disqualified
from voting under this Act:
(a) Those who have lost their Filipino citizenship in accordance
with Philippine laws;
(b) Those who have expressly renounced their Philippine
citizenship and who have pledged allegiance to a foreign country;
(c) Those who have … [been] convicted in a final judgment by a
court or tribunal of an offense punishable by imprisonment of not
less than one (1) year, including those who have … been found
guilty of Disloyalty as defined under Article 137 of the Revised
Penal Code, ….;
(d) An immigrant or a permanent resident who is recognized as
such in the host country, unless he/she executes, upon
registration, an affidavit prepared for the purpose by the
Commission declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three (3)
years from approval of his/her registration under this Act. Such
affidavit shall also state that he/she has not applied for citizenship
in another country. Failure to return shall be the cause for the
removal of the name of the immigrant or permanent resident from
the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.
(e) Any citizen of the Philippines abroad previously declared
insane or incompetent by competent authority …. (Words in
bracket added.)
Notably, Section 5 lists those who cannot avail themselves of the
absentee voting mechanism. However, Section 5(d) of the
enumeration respecting Filipino immigrants and permanent
residents in another country opens an exception and qualifies the
disqualification rule. Section 5(d) would, however, face a
constitutional challenge on the ground that, as narrated in
Macalintal, it -
… violates Section 1, Article V of the 1987 Constitution which
requires that the voter must be a resident in the Philippines for at
least one year and in the place where he proposes to vote for at
least six months immediately preceding an election. [The
challenger] cites … Caasi vs. Court of Appeals 9 to support his
claim [where] the Court held that a "green card" holder immigrant
to the [US] is deemed to have abandoned his domicile and
residence in the Philippines.
[The challenger] further argues that Section 1, Article V of the
Constitution does not allow provisional registration or a promise
by a voter to perform a condition to be qualified to vote in a
political exercise; that the legislature should not be allowed to
circumvent the requirement of the Constitution on the right of
suffrage by providing a condition thereon which in effect amends
or alters the aforesaid residence requirement to qualify a Filipino
abroad to vote. He claims that the right of suffrage should not be
granted to anyone who, on the date of the election, does not
possess the qualifications provided for by Section 1, Article V of
the Constitution. 10 (Words in bracket added.)
As may be recalled, the Court upheld the constitutionality of
Section 5(d) of R.A. 9189 mainly on the strength of the following
premises:
As finally approved into law, Section 5(d) of R.A. No. 9189
specifically disqualifies an immigrant or permanent resident who
is "recognized as such in the host country" because immigration
or permanent residence in another country implies renunciation of
one's residence in his country of origin. However, same Section
allows an immigrant and permanent resident abroad to register as
voter for as long as he/she executes an affidavit to show that
he/she has not abandoned his domicile in pursuance of the
constitutional intent expressed in Sections 1 and 2 of Article V
that "all citizens of the Philippines not otherwise disqualified by
law" must be entitled to exercise the right of suffrage and, that
Congress must establish a system for absentee voting; for
otherwise, if actual, physical residence in the Philippines is
required, there is no sense for the framers of the Constitution to
mandate Congress to establish a system for absentee voting.
Contrary to the claim of [the challenger], the execution of the
affidavit itself is not the enabling or enfranchising act. The
affidavit required in Section 5(d) is not only proof of the intention
of the immigrant or permanent resident to go back and resume
residency in the Philippines, but more significantly, it serves as an
explicit expression that he had not in fact abandoned his domicile
of origin. Thus, it is not correct to say that the execution of the
affidavit under Section 5(d) violates the Constitution that
proscribes "provisional registration or a promise by a voter to
perform a condition to be qualified to vote in a political
exercise." 11
Soon after Section 5(d) of R.A. 9189 passed the test of
constitutionality, Congress enacted R.A. 9225 the relevant portion
of which reads:
SEC. 2. Declaration of Policy. – It is hereby declared the policy of
the State that all Philippine citizens who become citizens of
another country shall be deemed not to have lost their Philippine
citizenship under the conditions of this Act.
SEC. 3. Retention of Philippine Citizenship. – Any provision of
law to the contrary notwithstanding, natural-born citizens of the
Philippines who have lost their Philippine citizenship by reason of
their naturalization as citizens of a foreign country are hereby
deemed to have re-acquired Philippine citizenship upon taking
the following oath of allegiance to the Republic:
xxx xxx xxx
Natural-born citizens of the Philippines who, after the effectivity of
this Act, become citizens of a foreign country shall retain their
Philippine citizenship upon taking the aforesaid oath.
SEC. 4. Derivative Citizenship. – The unmarried child, whether
legitimate, illegitimate or adopted, below eighteen (18) years of
age, of those who re-acquire Philippine citizenship upon
effectivity of this Act shall be deemed citizens of the Philippines.
SEC. 5. Civil and Political Rights and Liabilities. – Those who
retain or re-acquire Philippine citizenship under this Act shall
enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
(1) Those intending to exercise their right of suffrage must meet
the requirements under Section 1, Article V of the Constitution,
Republic Act No. 9189, otherwise known as "The Overseas
Absentee Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall
meet the qualifications for holding such public office as required
by the Constitution and existing laws and, at the time of the filing
of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship …;
3) xxx xxx xxx.
(4) xxx xxx xxx;
(5) That right to vote or be elected or appointed to any public
office in the Philippines cannot be exercised by, or extended to,
those who:
(a) are candidates for or are occupying any public office in the
country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned
officers in the armed forces of the country which they are
naturalized citizens.
After what appears to be a successful application for recognition
of Philippine citizenship under R.A. 9189, petitioners now invoke
their right to enjoy … political rights, specifically the right of
suffrage, pursuant to Section 5 thereof.
Opposing the petitioners’ bid, however, respondent COMELEC
invites attention to the same Section 5 (1) providing that "duals"
can enjoy their right to vote, as an adjunct to political rights, only if
they meet the requirements of Section 1, Article V of the
Constitution, R.A. 9189 and other existing laws. Capitalizing on
what at first blush is the clashing provisions of the aforecited
provision of the Constitution, which, to repeat, requires residency
in the Philippines for a certain period, and R.A. 9189 which grants
a Filipino non-resident absentee voting rights, 12 COMELEC
argues:
4. ‘DUALS’ MUST FIRST ESTABLISH THEIR DOMICILE/
RESIDENCE IN THE PHILIPPINES
4.01. The inclusion of such additional and specific requirements
in RA 9225 is logical. The ‘duals,’ upon renouncement of their
Filipino citizenship and acquisition of foreign citizenship, have
practically and legally abandoned their domicile and severed their
legal ties to the homeland as a consequence. Having
subsequently acquired a second citizenship (i.e., Filipino) then,
‘duals’ must, for purposes of voting, first of all, decisively and
definitely establish their domicile through positive acts; 13
The Court disagrees.
As may be noted, there is no provision in the dual citizenship law
- R.A. 9225 - requiring "duals" to actually establish residence and
physically stay in the Philippines first before they can exercise
their right to vote. On the contrary, R.A. 9225, in implicit
acknowledgment that "duals" are most likely non-residents,
grants under its Section 5(1) the same right of suffrage as that
granted an absentee voter under R.A. 9189. It cannot be
overemphasized that R.A. 9189 aims, in essence, to enfranchise
as much as possible all overseas Filipinos who, save for the
residency requirements exacted of an ordinary voter under
ordinary conditions, are qualified to vote. Thus, wrote the Court in
Macalintal:
It is clear from these discussions of the … Constitutional
Commission that [it] intended to enfranchise as much as possible
all Filipino citizens abroad who have not abandoned their domicile
of origin. The Commission even intended to extend to young
Filipinos who reach voting age abroad whose parents’ domicile of
origin is in the Philippines, and consider them qualified as voters
for the first time.
It is in pursuance of that intention that the Commission provided
for Section 2 [Article V] immediately after the residency
requirement of Section 1. By the doctrine of necessary implication
in statutory construction, …, the strategic location of Section 2
indicates that the Constitutional Commission provided for an
exception to the actual residency requirement of Section 1 with
respect to qualified Filipinos abroad. The same Commission has
in effect declared that qualified Filipinos who are not in the
Philippines may be allowed to vote even though they do not
satisfy the residency requirement in Section 1, Article V of the
Constitution.
That Section 2 of Article V of the Constitution is an exception to
the residency requirement found in Section 1 of the same Article
was in fact the subject of debate when Senate Bill No. 2104,
which became R.A. No. 9189, was deliberated upon on the
Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in
relation to the constitutional provisions. I think the sponsor and I
would agree that the Constitution is supreme in any statute that
we may enact.
Let me read Section 1, Article V, of the Constitution ….
xxx xxx xxx
Now, Mr. President, the Constitution says, "who shall have
resided in the Philippines." They are permanent immigrants. They
have changed residence so they are barred under the
Constitution. This is why I asked whether this committee
amendment which in fact does not alter the original text of the bill
will have any effect on this?
Senator Angara. Good question, Mr. President. And this has been
asked in various fora. This is in compliance with the Constitution.
One, the interpretation here of "residence" is synonymous with
"domicile."
As the gentleman and I know, Mr. President, "domicile" is the
intent to return to one's home. And the fact that a Filipino may
have been physically absent from the Philippines and may be
physically a resident of the United States, for example, but has a
clear intent to return to the Philippines, will make him qualified as
a resident of the Philippines under this law.
This is consistent, Mr. President, with the constitutional mandate
that we – that Congress – must provide a franchise to overseas
Filipinos.
If we read the Constitution and the suffrage principle literally as
demanding physical presence, then there is no way we can
provide for offshore voting to our offshore kababayan, Mr.
President.
Senator Arroyo. Mr. President, when the Constitution says, in
Section 2 of Article V, it reads: "The Congress shall provide a
system for securing the secrecy and sanctity of the ballot as well
as a system for absentee voting by qualified Filipinos abroad."
The key to this whole exercise, Mr. President, is "qualified." In
other words, anything that we may do or say in granting our
compatriots abroad must be anchored on the proposition that
they are qualified. Absent the qualification, they cannot vote. And
"residents" (sic) is a qualification.
xxx xxx xxx
Look at what the Constitution says – "In the place wherein they
propose to vote for at least six months immediately preceding the
election."
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros …. We are separated only
by a creek. But one who votes in Makati cannot vote in Pateros
unless he resides in Pateros for six months. That is how
restrictive our Constitution is. ….
As I have said, if a voter in Makati would want to vote in Pateros,
yes, he may do so. But he must do so, make the transfer six
months before the election, otherwise, he is not qualified to vote.
 xxx xxx xxx
Senator Angara. It is a good point to raise, Mr. President. But it is
a point already well-debated even in the constitutional
commission of 1986. And the reason Section 2 of Article V was
placed immediately after the six-month/one-year residency
requirement is to demonstrate unmistakably that Section 2 which
authorizes absentee voting is an exception to the six-month/one-
year residency requirement. That is the first principle, Mr.
President, that one must remember.
The second reason, Mr. President, is that under our jurisprudence
… – "residency" has been interpreted as synonymous with
"domicile."
But the third more practical reason, … is, if we follow the
interpretation of the gentleman, then it is legally and
constitutionally impossible to give a franchise to vote to overseas
Filipinos who do not physically live in the country, which is quite
ridiculous because that is exactly the whole point of this exercise
– to enfranchise them and empower them to vote. 14 (Emphasis
and words in bracket added; citations omitted)
Lest it be overlooked, no less than the COMELEC itself admits
that the Citizenship Retention and Re-Acquisition Act expanded
the coverage of overseas absentee voting. According to the poll
body:
1.05 With the passage of RA 9225 the scope of overseas
absentee voting has been consequently expanded so as to
include Filipinos who are also citizens of other countries, subject,
however, to the strict prerequisites indicated in the pertinent
provisions of RA 9225; 15
Considering the unison intent of the Constitution and R.A. 9189
and the expansion of the scope of that law with the passage of
R.A. 9225, the irresistible conclusion is that "duals" may now
exercise the right of suffrage thru the absentee voting scheme
and as overseas absentee voters. R.A. 9189 defines the terms
adverted to in the following wise:
"Absentee Voting" refers to the process by which qualified
citizens of the Philippines abroad exercise their right to vote;
"Overseas Absentee Voter" refers to a citizen of the Philippines
who is qualified to register and vote under this Act, not otherwise
disqualified by law, who is abroad on the day of elections;
While perhaps not determinative of the issue tendered herein, we
note that the expanded thrust of R.A. 9189 extends also to what
might be tag as the next generation of "duals". This may be
deduced from the inclusion of the provision on derivative
citizenship in R.A. 9225 which reads:
SEC. 4. Derivative Citizenship. – The unmarried child, whether
legitimate, illegitimate or adopted, below eighteen (18) years of
age, of those who re-acquire Philippine citizenship upon
effectivity of this Act shall be deemed citizens of the Philippines.
It is very likely that a considerable number of those unmarried
children below eighteen (18) years of age had never set foot in
the Philippines. Now then, if the next generation of "duals" may
nonetheless avail themselves the right to enjoy full civil and
political rights under Section 5 of the Act, then there is neither no
rhyme nor reason why the petitioners and other present day
"duals," provided they meet the requirements under Section 1,
Article V of the Constitution in relation to R.A. 9189, be denied the
right of suffrage as an overseas absentee voter. Congress could
not have plausibly intended such absurd situation.
WHEREFORE, the instant petition is GRANTED. Accordingly, the
Court rules and so holds that those who retain or re-acquire
Philippine citizenship under Republic Act No. 9225, the
Citizenship Retention and Re-Acquisition Act of 2003, may
exercise the right to vote under the system of absentee voting in
Republic Act No. 9189, the Overseas Absentee Voting Act of
2003.
SO ORDERED.
G.R. No. 191124               April 27, 2010
LUIS A. ASISTIO, Petitioner,
vs.
HON. THELMA CANLAS TRINIDAD-PE AGUIRRE, Presiding
Judge, Regional Trial Court, Caloocan City, Branch 129;
HON. ARTHUR O. MALABAGUIO, Presiding Judge,
Metropolitan Trial Court, Caloocan City, Branch 52; ENRICO
R. ECHIVERRI, Board of Election Inspectors of Precinct
1811A, Barangay 15, Caloocan City; and the CITY ELECTION
OFFICER, Caloocan City, Respondents.
RESOLUTION
NACHURA, J.:
This is a petition1 for certiorari, with prayer for the issuance of a
status quo ante order, under Rule 65 of the Rules of Court,
assailing the Order2 dated February 15, 2010 issued, allegedly
with grave abuse of discretion amounting to lack or excess of
jurisdiction, by public respondent Judge Thelma Canlas Trinidad-
Pe Aguirre (Judge Aguirre) of the Regional Trial Court (RTC),
Branch 129, Caloocan City in SCA No. 997. The petition likewise
ascribes error in, and seeks to nullify, the decision dated
February 5, 2010, promulgated by the Metropolitan Trial Court
(MeTC), Branch 52, Caloocan City in SCA No. 10-582.
The Antecedents
On January 26, 2010, private respondent Enrico R. Echiverri
(Echiverri) filed against petitioner Luis A. Asistio (Asistio) a
Petition3 for Exclusion of Voter from the Permanent List of Voters
of Caloocan City (Petition for Exclusion) before the MeTC, Branch
52, Caloocan City. Public respondent Judge Arthur O.
Malabaguio (Judge Malabaguio) presides over MeTC Branch 52.
The petition was docketed as SCA No. 10-582, entitled "Atty.
Enrico R. Echiverri v. Luis Aquino Asistio, the Board of Election
Inspectors of Precinct No. 1811A, Barangay 15, Caloocan City
and the City Election Officer of Caloocan."
In his petition, Echiverri alleged that Asistio is not a resident of
Caloocan City, specifically not of 123 Interior P. Zamora St.,
Barangay 15, Caloocan City, the address stated in his Certificate
of Candidacy (COC) for Mayor in the 2010 Automated National
and Local Elections. Echiverri, also a candidate for Mayor of
Caloocan City, was the respondent in a Petition to Deny Due
Course and/or Cancellation of the Certificate of Candidacy filed
by Asistio. According to Echiverri, when he was about to furnish
Asistio a copy of his Answer to the latter’s petition, he found out
that Asistio’s address is non-existent. To support this, Echiverri
attached to his petition a Certification4 dated December 29, 2009
issued by the Tanggapan ng Punong Barangay of Barangay 15 –
Central, Zone 2, District II of Caloocan City. He mentioned that,
upon verification of the 2009 Computerized Voters’ List (CVL) for
Barangay 15, Asistio’s name appeared under voter number 8,
with address at 109 Libis Gochuico, Barangay 15, Caloocan City.5
Echiverri also claimed that Asistio was no longer residing in this
address, since what appeared in the latter’s COC for Mayor6 in
the 2007 elections was No. 110 Unit 1, P. Zamora St., Barangay
15, Caloocan City,7 but that the address used in Asistio’s current
COC is situated in Barangay 17. He said that, per his verification,
the voters8 duly registered in the 2009 CVL using the address No.
123 P. Zamora St., Barangay 17, Caloocan City did not include
Asistio.9
On January 28, 2010, the MeTC issued a Notice of
Hearing10 notifying Asistio, through Atty. Carlos M. Caliwara, his
counsel of record in SPA No. 09-151 (DC), entitled "Asistio v.
Echiverri," before the Commission on Elections (COMELEC), of
the scheduled hearings of the case on February 1, 2 and 3, 2010.
On February 2, 2010, Asistio filed his Answer Ex Abundante Ad
Cautelam with Affirmative Defenses.11 Asistio alleged that he is a
resident of No. 116, P. Zamora St., Caloocan City, and a
registered voter of Precinct No. 1811A because he mistakenly
relied on the address stated in the contract of lease with Angelina
dela Torre Tengco (Tengco), which was 123 Interior P. Zamora
St., Barangay 15, Caloocan City.12 1avvphi1
Trial on the merits ensued, after which Judge Malabaguio
directed the parties to file their respective position papers on or
before February 4, 2010.
Echiverri filed his Memorandum13 on February 4, 2010. Asistio, on
the other hand, failed to file his memorandum since the complete
transcripts of stenographic notes (TSN) were not yet available. 14
On February 5, 2010, Judge Malabaguio rendered a
decision,15 disposing, as follows —
WHEREFORE, premises considered, the Election Registration
Board, Caloocan City is hereby directed to remove the name of
LUIS AQUINO ASISTIO from the list of permanent voters of
Caloocan City.
SO ORDERED.16
Meanwhile, on January 26, 2010, Echiverri filed with the
COMELEC a Petition for Disqualification, 17 which was docketed
as SPA No. 10-013 (DC). The Petition was anchored on the
grounds that Asistio is not a resident of Caloocan City and that he
had been previously convicted of a crime involving moral
turpitude. Asistio, in his Answer with Special and Affirmative
Defenses (Com Memorandum),18 raised the same arguments with
respect to his residency and also argued that the President of the
Philippines granted him an absolute pardon.
On February 10, 2010, Asistio filed his Notice of Appeal 19 and his
Appeal (from the Decision dated February 5, 2010) 20 and paid the
required appeal fees through postal money orders. 21
On February 11, 2010, Echiverri filed a Motion 22 to Dismiss
Appeal, arguing that the RTC did not acquire jurisdiction over the
Appeal on the ground of failure to file the required appeal fees.
On the scheduled hearing of February 15, 2010, Asistio opposed
the Motion and manifested his intention to file a written comment
or opposition thereto. Judge Aguirre directed Echiverri’s counsel
to file the appropriate responsive pleading to Asistio’s appeal in
her Order23 of same date given in open court.
Judge Aguirre, however, cancelled her February 15, 2010 Order,
and issued an Amended Order24 on that date holding in abeyance
the filing of the responsive pleading of Echiverri’s counsel and
submitting the Motion for resolution.
In another Order also dated February 15, 2010, Judge Aguirre
granted the Motion on the ground of non-payment of docket fees
essential for the RTC to acquire jurisdiction over the appeal. It
stated that Asistio paid his docket fee only on February 11, 2010
per the Official Receipt of the MeTC, Office of the Clerk of Court.
Hence, this petition.
Per Resolution25 dated February 23, 2010, this Court required the
respondents to comment on the petition, and issued the Status
Quo Ante Order prayed for.
On March, 8, 2010, Echiverri filed his Comment to the Petition
(with Motion to Quash Status Quo Ante Order). Departing from
Echiverri’s position against the Petition, the Office of the Solicitor
General (OSG), on March 30, 2010, filed its Comment via
registered mail. The OSG points out that Asistio’s family is
"known to be one of the prominent political families in Caloocan
City, and that there is no indication whatsoever that [Asistio] has
ever intended to abandon his domicile, Caloocan City." Further,
the OSG proposes that the issue at hand is better resolved by the
people of Caloocan City. In all, the OSG propounds that
technicalities and procedural niceties should bow to the sovereign
will of the people of Caloocan City.
Our Ruling
In her assailed Order, Judge Aguirre found — The payment of
docket fees is an essential requirement for the perfection of an
appeal.
The record shows that Respondent-Appellant paid his docket fee
only on February 11, 2010, evidenced by O.R. No. 05247240 for
Php1,510.00 at the Metropolitan Trial Court, Office of the Clerk of
Court, yet the Notice of Appeal was filed on February 10, 2010, at
5:30 p.m., which is way beyond the official office hours, and a
copy thereof was filed at the Office of the Clerk of Court,
Metropolitan Trial Court at 5:00 p.m. of February 10, 2010. Thus,
it is clear that the docket fee was not paid simultaneously with the
filing of the Notice of Appeal.
It taxes the credulity of the Court why the Notice of Appeal was
filed beyond the regular office hours, and why did respondent-
appellant had to resort to paying the docket fee at the Mall of Asia
when he can conveniently pay it at the Office of the Clerk of
Court, Metropolitan Trial Court along with the filing of the Notice
of Appeal on February 10, 2010 at 5:30 p.m. at the Metropolitan
Trial Court, which is passed [sic] the regular office hours.1awphi1
The conclusion is then inescapable that for failure to pay the
appellate docket fee, the Court did not acquire jurisdiction over
the case.26
This Court observes, that while Judge Aguirre declares in her
Order that the appellate docket fees were paid on February 11,
2010, she conveniently omits to mention that the postal money
orders obtained by Asistio for the purpose were purchased on
February 10, 2010.27 It is noteworthy that, as early as February 4,
2010, Asistio already manifested that he could not properly file his
memorandum with the MeTC due to the non-availability of the
TSNs. Obviously, these TSNs were needed in order to prepare
an intelligent appeal from the questioned February 5, 2010 MeTC
Order. Asistio was able to get copies of the TSNs only on
February 10, 2010, the last day to file his appeal, and, naturally, it
would take some time for him to review and incorporate them in
his arguments on appeal. Understandably, Asistio filed his notice
of appeal and appeal, and purchased the postal money orders in
payment of the appeal fees on the same day. To our mind,
Asistio, by purchasing the postal money orders for the purpose of
paying the appellate docket fees on February 10, 2010, although
they were tendered to the MeTC only on February 11, 2010, had
already substantially complied with the procedural requirements
in filing his appeal.
This appeal to the RTC assails the February 5, 2010 MeTC Order
directing Asistio’s name to be removed from the permanent list of
voters [in Precinct 1811A] of Caloocan City. The Order, if
implemented, would deprive Asistio of his right to vote.
The right to vote is a most precious political right, as well as a
bounden duty of every citizen, enabling and requiring him to
participate in the process of government to ensure that it can truly
be said to derive its power solely from the consent of its
constituents.28 Time and again, it has been said that every
Filipino’s right to vote shall be respected, upheld, and given full
effect.29 A citizen cannot be disenfranchised for the flimsiest of
reasons. Only on the most serious grounds, and upon clear and
convincing proof, may a citizen be deemed to have forfeited this
precious heritage of freedom.
In this case, even if we assume for the sake of argument, that the
appellate docket fees were not filed on time, this incident alone
should not thwart the proper determination and resolution of the
instant case on substantial grounds. Blind adherence to a
technicality, with the inevitable result of frustrating and nullifying
the constitutionally guaranteed right of suffrage, cannot be
countenanced.30
On more than one occasion, this Court has recognized the
emerging trend towards a liberal construction of procedural rules
to serve substantial justice. Courts have the prerogative to relax
rules of even the most mandatory character, mindful of the duty to
reconcile both the need to speedily end litigation and the parties’
right to due process.
It is true that, faced with an appeal, the court has the discretion
whether to dismiss it or not. However, this discretion must be
sound; it is to be exercised pursuant to the tenets of justice, fair
play and equity, in consideration of the circumstances obtaining in
each case. Thus, dismissal of appeals on purely technical
grounds is frowned upon as the policy of the Court is to
encourage resolution of cases on their merits over the very rigid
and technical application of rules of procedure used only to help
secure, not override, substantial justice. Verily, it is far better and
more prudent for the court to excuse a technical lapse and afford
the parties a review of the case on appeal rather than dispose of
it on a technicality that would cause grave injustice to the
parties.31
The primordial issue in this case is whether Asistio should be
excluded from the permanent list of voters of [Precinct 1811A] of
Caloocan City for failure to comply with the residency required by
law.
Section 117 of The Omnibus Election Code (Batas Pambansa
Bilang 881) states:
SECTION 117. Qualifications of a voter.—Every citizen of the
Philippines, not otherwise disqualified by law, eighteen years of
age or over, who shall have resided in the Philippines for one
year and in the city or municipality wherein he proposes to vote
for at least six months immediately preceding the election, may
be registered as a voter.
Any person who transfers residence to another city, municipality
or country solely by reason of his occupation; profession;
employment in private or public service; educational activities;
work in military or naval reservations; service in the army, navy or
air force; the constabulary or national police force; or confinement
or detention in government institutions in accordance with law,
shall be deemed not to have lost his original residence.
This provision is echoed in Section 9 of The Voters Registration
Act of 1996 (Republic Act No. 8189), to wit:
SEC. 9. Who May Register.—All citizens of the Philippines not
otherwise disqualified by law who are at least eighteen (18) years
of age and who shall have resided in the Philippines for at least
one (1) year and in the place wherein they propose to vote for at
least six (6) months immediately preceding the election, may
register as a voter.
Any person who temporarily resides in another city, municipality
or country solely by reason of his occupation, profession,
employment in private or public service, educational activities,
work in the military or naval reservations within the Philippines,
service in the Armed Forces of the Philippines, the National
Police Force, or confinement or detention in government
institutions in accordance with law, shall not be deemed to have
lost his original residence.
Any person who, on the day of registration may not have reached
the required age or period of residence but who, on the day of
election shall possess such qualifications, may register as a
voter.
From these provisions, the residency requirement of a voter is at
least one (1) year residence in the Philippines and at least six (6)
months in the place where the person proposes or intends to
vote. "Residence," as used in the law prescribing the
qualifications for suffrage and for elective office, is doctrinally
settled to mean "domicile," importing not only an intention to
reside in a fixed place but also personal presence in that place,
coupled with conduct indicative of such intention32 inferable from a
person’s acts, activities, and utterances.33 "Domicile" denotes a
fixed permanent residence where, when absent for business or
pleasure, or for like reasons, one intends to return. 34 In the
consideration of circumstances obtaining in each particular case,
three rules must be borne in mind, namely: (1) that a person must
have a residence or domicile somewhere; (2) once established, it
remains until a new one is acquired; and (3) that a person can
have but one residence or domicile at a time.35
Domicile is not easily lost. To successfully effect a transfer
thereof, one must demonstrate: (1) an actual removal or change
of domicile; (2) a bona fide intention of abandoning the former
place of residence and establishing a new one; and (3) acts
which correspond with that purpose. 36 There must 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.37
Asistio has always been a resident of Caloocan City since his
birth or for more than 72 years. His family is known to be among
the prominent political families in Caloocan City. In fact, Asistio
served in public office as Caloocan City Second District
representative in the House of Representatives, having been
elected as such in the 1992, 1995, 1998, and 2004 elections. In
2007, he also sought election as City Mayor. In all of these
occasions, Asistio cast his vote in the same city. Taking these
circumstances into consideration, gauged in the light of the
doctrines above enunciated, it cannot be denied that Asistio has
qualified, and continues to qualify, as a voter of Caloocan City.
There is no showing that he has established domicile elsewhere,
or that he had consciously and voluntarily abandoned his
residence in Caloocan City. He should, therefore, remain in the
list of permanent registered voters of Precinct No. 1811A,
Barangay 15, Caloocan City.
That Asistio allegedly indicated in his Certificate of Candidacy for
Mayor, both for the 2007 and 2010 elections, a non-existent or
false address, or that he could not be physically found in the
address he indicated when he registered as a voter, should not
operate to exclude him as a voter of Caloocan City. These
purported misrepresentations in Asistio’s COC, if true, might
serve as basis for an election offense under the Omnibus Election
Code (OEC),38 or an action to deny due course to the COC.39 But
to our mind, they do not serve as proof that Asistio has
abandoned his domicile in Caloocan City, or that he has
established residence outside of Caloocan City.
With this disquisition, we find no necessity to discuss the other
issues raised in the petition.
WHEREFORE, the petition is GRANTED. The assailed Order
dated February 15, 2010 of the Regional Trial Court, Branch 129,
Caloocan City in SCA No. 997 and the decision dated February 5,
2010 of the Metropolitan Trial Court, Branch 52, Caloocan City in
SCA No. 10-582 are REVERSED and SET ASIDE. Petitioner Luis
A. Asistio remains a registered voter of Precinct No. 1811A,
Barangay 15, Caloocan City. The Status Quo Ante Order issued
by this Court on February 23, 2010 is MADE PERMANENT.
SO ORDERED.
G.R. No. 189698               December 1, 2009
ELEAZAR P. QUINTO and GERINO A. TOLENTINO,
JR., Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
NACHURA, J.:
In our predisposition to discover the "original intent" of a statute,
courts become the unfeeling pillars of the status quo. Little do we
realize that statutes or even constitutions are bundles of
compromises thrown our way by their framers. Unless we
exercise vigilance, the statute may already be out of tune and
irrelevant to our day.1 It is in this light that we should address the
instant case.
Before the Court is a petition for prohibition and certiorari, with
prayer for the issuance of a temporary restraining order and a writ
of preliminary injunction, assailing Section 4(a) of Resolution No.
8678 of the Commission on Elections (COMELEC). In view of
pressing contemporary events, the petition begs for immediate
resolution.
The Antecedents
This controversy actually stems from the law authorizing the
COMELEC to use an automated election system (AES).
On December 22, 1997, Congress enacted Republic Act (R.A.)
No. 8436, entitled "AN ACT AUTHORIZING THE COMMISSION
ON ELECTIONS TO USE AN AUTOMATED ELECTION
SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL
ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL
ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR
AND FOR OTHER PURPOSES." Section 11 thereof reads:
SEC. 11. Official Ballot.- The Commission shall prescribe the size
and form of the official ballot which shall contain the titles of the
positions to be filled and/or the propositions to be voted upon in
an initiative, referendum or plebiscite. Under each position, the
names of candidates shall be arranged alphabetically by surname
and uniformly printed using the same type size. A fixed space
where the chairman of the Board of Election inspectors shall affix
his/her signature to authenticate the official ballot shall be
provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in
the election shall not be later than one hundred twenty (120) days
before the elections: - Provided, That, any elective official,
whether national or local, running for any office other than the one
which he/she is holding in a permanent capacity, except for
president and vice president, shall be deemed resigned only upon
the start of the campaign period corresponding to the position for
which he/she is running: Provided, further, That, unlawful acts or
omissions applicable to a candidate shall take effect upon the
start of the aforesaid campaign period: Provided, finally, That, for
purposes of the May 11, 1998 elections, the deadline for filing of
the certificate of candidacy for the positions of President, Vice
President, Senators and candidates under the Party-List System
as well as petitions for registration and/or manifestation to
participate in the Party-List System shall be on February 9, 1998
while the deadline for the filing of certificate of candidacy for other
positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office
and/or the Bangko Sentral ng Pilipinas at the price comparable
with that of private printers under proper security measures which
the Commission shall adopt. The Commission may contract the
services of private printers upon certification by the National
Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the
printing requirements. Accredited political parties and deputized
citizens' arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the
Committee shall ensure that the serial number on the ballot stub
shall be printed in magnetic ink that shall be easily detectable by
inexpensive hardware and shall be impossible to reproduce on a
photocopying machine and that identification marks, magnetic
strips, bar codes and other technical and security markings, are
provided on the ballot.
The official ballots shall be printed and distributed to each
city/municipality at the rate of one (1) ballot for every registered
voter with a provision of additional four (4) ballots per precinct. 2
Almost a decade thereafter, Congress amended the law on
January 23, 2007 by enacting R.A. No. 9369, entitled "AN ACT
AMENDING REPUBLIC ACT NO. 8436, ENTITLED "AN ACT
AUTHORIZING THE COMMISSION ON ELECTIONS TO USE
AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998
NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT
NATIONAL AND LOCAL ELECTORAL EXERCISES, TO
ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS
AND ACCURACY OF ELECTIONS, AMENDING FOR THE
PURPOSE BATAS PAMPANSA BLG. 881, AS AMEMDED,
REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION
LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER
PURPOSES." Section 13 of the amendatory law modified Section
11 of R.A. No. 8436, thus:
SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended
to read as follows:
Section 15. Official Ballot.- The Commission shall prescribe the
format of the electronic display and/or the size and form of the
official ballot, which shall contain the titles of the position to be
filled and/or the propositions to be voted upon in an initiative,
referendum or plebiscite. Where practicable, electronic displays
must be constructed to present the names of all candidates for
the same position in the same page or screen, otherwise, the
electronic displays must be constructed to present the entire
ballot to the voter, in a series of sequential pages, and to ensure
that the voter sees all of the ballot options on all pages before
completing his or her vote and to allow the voter to review and
change all ballot choices prior to completing and casting his or
her ballot. Under each position to be filled, the names of
candidates shall be arranged alphabetically by surname and
uniformly indicated using the same type size. The maiden or
married name shall be listed in the official ballot, as preferred by
the female candidate. Under each proposition to be vote upon,
the choices should be uniformly indicated using the same font
and size.
A fixed space where the chairman of the board of election
inspectors shall affix his/her signature to authenticate the official
ballot shall be provided.
For this purpose, the Commission shall set the deadline for the
filing of 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 the start of the
aforesaid campaign period: Provided, finally, That any person
holding a public appointive office or position, including active
members of the armed forces, and officers and employees in
government-owned or -controlled corporations, shall be
considered ipso facto resigned from his/her office and must
vacate the same at the start of the day of the filing of his/her
certificate of candidacy.
Political parties may hold political conventions to nominate their
official candidates within thirty (30) days before the start of the
period for filing a certificate of candidacy.
With respect to a paper-based election system, the official ballots
shall be printed by the National Printing Office and/or the Bangko
Sentral ng Pilipinas at the price comparable with that of private
printers under proper security measures which the Commission
shall adopt. The Commission may contract the services of private
printers upon certification by the National Printing Office/Bangko
Sentral ng Pilipinas that it cannot meet the printing requirements.
Accredited political parties and deputized citizens' arms of the
Commission shall assign watchers in the printing, storage and
distribution of official ballots.
To prevent the use of fake ballots, the Commission through the
Committee shall ensure that the necessary safeguards, such as,
but not limited to, bar codes, holograms, color shifting ink,
microprinting, are provided on the ballot.
The official ballots shall be printed and distributed to each
city/municipality at the rate of one ballot for every registered voter
with a provision of additional three ballots per precinct. 3
Pursuant to its constitutional mandate to enforce and administer
election laws, COMELEC issued Resolution No. 8678, 4 the
Guidelines on the Filing of Certificates of Candidacy (CoC) and
Nomination of Official Candidates of Registered Political Parties
in Connection with the May 10, 2010 National and Local
Elections. Sections 4 and 5 of Resolution No. 8678 provide:
SEC. 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.
b) Any person holding an elective office or position shall not be
considered resigned upon the filing of his certificate of candidacy
for the same or any other elective office or position.
SEC. 5. Period for filing Certificate of Candidacy.- The certificate
of candidacy shall be filed on regular days, from November 20 to
30, 2009, during office hours, except on the last day, which shall
be until midnight.
Alarmed that they will be deemed ipso facto resigned from their
offices the moment they file their CoCs, petitioners Eleazar P.
Quinto and Gerino A. Tolentino, Jr., who hold appointive positions
in the government and who intend to run in the coming
elections,5 filed the instant petition for prohibition and certiorari,
seeking the declaration of the afore-quoted Section 4(a) of
Resolution No. 8678 as null and void.
The Petitioners' Contention
Petitioners contend that the COMELEC gravely abused its
discretion when it issued the assailed Resolution. They aver that
the advance filing of CoCs for the 2010 elections is intended
merely for the purpose of early printing of the official ballots in
order to cope with time limitations. Such advance filing does not
automatically make the person who filed the CoC a candidate at
the moment of filing. In fact, the law considers him a candidate
only at the start of the campaign period. Petitioners then assert
that this being so, they should not be deemed ipso facto resigned
from their government offices when they file their CoCs, because
at such time they are not yet treated by law as candidates. They
should be considered resigned from their respective offices only
at the start of the campaign period when they are, by law, already
considered as candidates.6
Petitioners also contend that Section 13 of R.A. No. 9369, the
basis of the assailed COMELEC resolution, contains two
conflicting provisions. These must be harmonized or reconciled to
give effect to both and to arrive at a declaration that they are not
ipso facto resigned from their positions upon the filing of their
CoCs.7
Petitioners further posit that the provision considering them as
ipso facto resigned from office upon the filing of their CoCs is
discriminatory and violates the equal protection clause in the
Constitution.8
The Respondent's Arguments
On the procedural aspect of the petition, the Office of the Solicitor
General (OSG), representing respondent COMELEC, argues that
petitioners have no legal standing to institute the suit." Petitioners
have not yet filed their CoCs, hence, they are not yet affected by
the assailed provision in the COMELEC resolution. The OSG
further claims that the petition is premature or unripe for judicial
determination." Petitioners have admitted that they are merely
planning to file their CoCs for the coming 2010 elections. Their
interest in the present controversy is thus merely speculative and
contingent upon the filing of the same. The OSG likewise
contends that petitioners availed of the wrong remedy. They are
questioning an issuance of the COMELEC made in the exercise
of the latter's rule-making power. Certiorari under Rule 65 is then
an improper remedy.9
On the substantive aspect, the OSG maintains that the
COMELEC did not gravely abuse its discretion in phrasing
Section 4(a) of Resolution No. 8678 for it merely copied what is in
the law. The OSG, however, agrees with petitioners that there is
a conflict in Section 13 of R.A. No. 9369 that should be resolved.
According to the OSG, there seems to be no basis to consider
appointive officials as ipso facto resigned and to require them to
vacate their positions on the same day that they file their CoCs,
because they are not yet considered as candidates at that time.
Further, this - deemed resigned- provision existed in Batas
Pambansa Bilang (B.P. Blg.) 881, and no longer finds a place in
our present election laws with the innovations brought about by
the automated system.10
Our Ruling
I.
At first glance, the petition suffers from an incipient procedural
defect. What petitioners assail in their petition is a resolution
issued by the COMELEC in the exercise of its quasi-legislative
power. Certiorari under Rule 65, in relation to Rule 64, cannot be
availed of, because it is a remedy to question decisions,
resolutions and issuances made in the exercise of a judicial or
quasi-judicial function.11 Prohibition is also an inappropriate
remedy, because what petitioners actually seek from the Court is
a determination of the proper construction of a statute and a
declaration of their rights thereunder. Obviously, their petition is
one for declaratory relief,12 over which this Court does not
exercise original jurisdiction. 13
However, petitioners raise a challenge on the constitutionality of
the questioned provisions of both the COMELEC resolution and
the law. Given this scenario, the Court may step in and resolve
the instant petition.
The transcendental nature and paramount importance of the
issues raised and the compelling state interest involved in their
early resolution the period for the filing of CoCs for the 2010
elections has already started and hundreds of civil servants
intending to run for elective offices are to lose their employment,
thereby causing imminent and irreparable damage to their means
of livelihood and, at the same time, crippling the government's
manpowerfurther dictate that the Court must, for propriety, if only
from a sense of obligation, entertain the petition so as to expedite
the adjudication of all, especially the constitutional, issues.
In any event, the Court has ample authority to set aside errors of
practice or technicalities of procedure and resolve the merits of a
case. Repeatedly stressed in our prior decisions is the principle
that the Rules were promulgated to provide guidelines for the
orderly administration of justice, not to shackle the hand that
dispenses it. Otherwise, the courts would be consigned to being
mere slaves to technical rules, deprived of their judicial
discretion.14
II.
To put things in their proper perspective, it is imperative that we
trace the brief history of the assailed provision. Section 4(a) of
COMELEC Resolution No. 8678 is a reproduction of the second
proviso in the third paragraph of Section 13 of R.A. No. 9369,
which for ready reference is quoted as follows:
For this purpose, the Commission shall set the deadline for the
filing of certificate of candidacy/petition for
registration/manifestation to participate in the election. Any
person who files his certificate of candidacy within this period
shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions applicable
to a candidate shall take effect only upon the start of the
aforesaid campaign period: Provided, finally, That any person
holding a public appointive office or position, including active
members of the armed forces, and officers and employees in
government-owned or -controlled corporations, shall be
considered ipso facto resigned from his/her office and must
vacate the same at the start of the day of the filing of his/her
certificate of candidacy.15
Notably, this proviso is not present in Section 11 of R.A. No.
8436, the law amended by R.A. No. 9369. The proviso was lifted
from Section 66 of B.P. Blg. 881 or the Omnibus Election Code
(OEC) of the Philippines, which reads:
Sec. 66. Candidates holding appointive office or position.- 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.
It may be recalled-in inverse chronology-that earlier, Presidential
Decree No. 1296, or the 1978 Election Code, contained a similar
provision, thus'
SECTION 29. Candidates holding appointive office or position. -
Every 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 ipso facto cease in his office or position on the
date he files his certificate of candidacy. Members of the Cabinet
shall continue in the offices they presently hold notwithstanding
the filing of certificate of candidacy, subject to the pleasure of the
President of the Philippines.
Much earlier, R.A. No. 6388, or the Election Code of 1971,
likewise stated in its Section 23 the following:
SECTION 23. Candidates Holding Appointive Office or Position. -
Every person holding a public appointive office or position,
including active members of the Armed Forces of the Philippines
and every officer or employee in government-owned or controlled
corporations, shall ipso facto cease in his office or position on the
date he files his certificate of candidacy: Provided, That the filing
of a certificate of candidacy shall not affect whatever civil, criminal
or administrative liabilities which he may have incurred.
Going further back in history, R.A. No. 180, or the Revised
Election Code approved on June 21, 1947, also provided that
SECTION 26. Automatic cessation of appointive officers and
employees who are candidates. - Every person holding a public
appointive office or position shall ipso facto cease in his office or
position on the date he files his certificate of candidacy.
During the Commonwealth era, Commonwealth Act (C.A.) No.
725, entitled "AN ACT TO PROVIDE FOR THE NEXT ELECTION
FOR PRESIDENT AND VICE-PRESIDENT OF THE
PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE
OF REPRESENTATIVES, AND APPROPRIATING THE
NECESSARY FUNDS THEREFOR," approved on January 5,
1946, contained, in the last paragraph of its Section 2, the
following:
A person occupying any civil office by appointment in the
government or any of its political subdivisions or agencies or
government-owned or controlled corporations, whether such
office by appointive or elective, shall be considered to have
resigned from such office from the moment of the filing of such
certificate of candidacy.
Significantly, however, C.A. No. 666, entitled "AN ACT TO
PROVIDE FOR THE FIRST ELECTION FOR PRESIDENT AND
VICE-PRESIDENT OF THE PHILIPPINES, SENATORS, AND
MEMBERS OF THE HOUSE OF REPRESENTATIVES, UNDER
THE CONSTITUTION AND THE AMENDMENTS THEREOF,"
enacted without executive approval on June 22, 1941, the
precursor of C.A. No. 725, only provided for automatic resignation
of elective, but not appointive, officials.
Nevertheless, C.A. No. 357, or the Election Code approved on
August 22, 1938, had, in its Section 22, the same verbatim
provision as Section 26 of R.A. No. 180.
The earliest recorded Philippine law on the subject is Act No.
1582, or the Election Law enacted by the Philippine Commission
in 1907, the last paragraph of Section 29 of which reads:
Sec. 29. Penalties upon officers.- x x x.
No public officer shall offer himself as a candidate for election,
nor shall he be eligible during the time that he holds said public
office to election, at any municipal, provincial or Assembly
election, except for reelection to the position which he may be
holding, and no judge of the Court of First Instance, justice of the
peace, provincial fiscal, or officer or employee of the Bureau of
Constabulary or of the Bureau of Education shall aid any
candidate or influence in any manner or take any part in any
municipal, provincial, or Assembly election under penalty of being
deprived of his office and being disqualified to hold any public
office whatever for a term of five years: Provided, however, That
the foregoing provisions shall not be construed to deprive any
person otherwise qualified of the right to vote at any election.
From this brief historical excursion, it may be gleaned that the
second proviso in the third paragraph of Section 13 of R.A. No.
9369- that any person holding a public appointive office or
position, including active members of the armed forces, and
officers, and employees in government-owned or controlled
corporations, shall be considered ipso facto resigned from his/her
office and must vacate the same at the start of the day of the
filing of his/her certificate of candidacy- traces its roots to the
period of the American occupation.
In fact, during the deliberations of Senate Bill No. 2231, the bill
later to be consolidated with House Bill No. 5352 and enacted as
R.A. No. 9369, Senator Richard Gordon, the principal author of
the bill, acknowledged that the said proviso in the proposed
legislative measure is an old provision which was merely copied
from earlier existing legislation, thus'
Senator Osmeña.- May I just opine here and perhaps obtain the
opinion of the good Sponsor.- This reads like, "ANY PERSON
HOLDING [means currently] A PUBLIC APPOINTIVE POSITION"
SHALL BE CONSIDERED IPSO FACTO RESIGNED- [which
means that the prohibition extends only to appointive officials]
"INCLUDING ACTIVE MEMBERS OF THE ARMED FORCES,
OFFICERS AND EMPLOYEES"- This is a prohibition, Mr.
President.- This means if one is chairman of SSS or PDIC, he is
deemed ipso facto resigned when he files his certificate of
candidacy.- Is that the intention
Senator Gordon.- This is really an old provision, Mr. President.
Senator Osmeña.- It is in bold letters, so I think it was a
Committee amendment.
Senator Gordon.- No, it has always been there.
Senator Osmeña.- I see.
Senator Gordon.- I guess the intention is not to give them undue
advantage, especially certain people.
Senator Osmeña.- All right.16
In that Senate deliberation, however, Senator Miriam Defensor-
Santiago expressed her concern over the inclusion of the said
provision in the new law, given that the same would be
disadvantageous and unfair to potential candidates holding
appointive positions, while it grants a consequent preferential
treatment to elective officials, thus'
Senator Santiago.- On page 15, line 31, I know that this is a
losing cause, so I make this point more as a matter of record than
of any feasible hope that it can possibly be either accepted or if
we come to a division of the House, it will be upheld by the
majority.
I am referring to page 15, line 21.- The proviso begins:
"PROVIDED FINALLY, THAT ANY PERSON HOLDING A
PUBLIC APPOINTIVE OFFICE - SHALL BE CONSIDERED IPSO
FACTO RESIGNED FROM HIS/HER OFFICE."
The point that I made during the appropriate debate in the past in
this Hall is that there is, for me, no valid reason for exempting
elective officials from this inhibition or disqualification imposed by
the law.- If we are going to consider appointive officers of the
government, including AFP members and officers of government-
owned and controlled corporations, or any other member of the
appointive sector of the civil service, why should it not apply to
the elective sector for, after all, even senators and congressmen
are members of the civil service as well
Further, it is self-serving for the Senate, or for the Congress in
general, to give an exception to itself which is not available to
other similarly situated officials of government. Of course, the
answer is, the reason why we are special is that we are elected.
Since we are imposing a disqualification on all other government obvious discrimination against appointive officials who were
officials except ourselves, I think, it is the better part of delicadeza deemed ipso facto resigned from their offices upon the filing of
to inhibit ourselves as well, so that if we want to stay as senators, their CoCs, while elective officials were not.
we wait until our term expires. But if we want to run for some
other elective office during our term, then we have to be ᳠This situation was incidentally addressed by the Court in Farv.
᳠
considered resigned just like everybody else. That is my The Executive Secretary21 when it ruled that
proposed amendment. But if it is unacceptable to the
distinguished Sponsor, because of sensitivity to the convictions of Section 14 of Rep. Act No. 9006
the rest of our colleagues, I will understand.
Is Not Violative of the Equal
Senator Gordon. Mr. President, I think the suggestion is well-
thought of.- It is a good policy.- However, this is something that is
Protection Clause of the Constitution
already in the old law which was upheld by the Supreme court in
a recent case that the rider was not upheld and that it was valid. 17
The petitioners' contention, that the repeal of Section 67 of the
Omnibus Election Code pertaining to elective officials gives
The obvious inequality brought about by the provision on
undue benefit to such officials as against the appointive ones and
automatic resignation of appointive civil servants must have been
violates the equal protection clause of the constitution, is tenuous.
the reason why Senator Recto proposed the inclusion of the
following during the period of amendments: "ANY PERSON WHO
FILES HIS CERTIFICATE OF CANDIDACY WITHIN THIS The equal protection of the law clause in the Constitution is not
PERIOD SHALL ONLY BE CONSIDERED AS A CANDIDATE AT absolute, but is subject to reasonable classification.- If the
THE START OF THE CAMPAIGN PERIOD FOR WHICH HE groupings are characterized by substantial distinctions that make
FILED HIS COC."18 The said proviso seems to mitigate the real differences, one class may be treated and regulated
situation of disadvantage afflicting appointive officials by differently from the other. The Court has explained the nature of
considering persons who filed their CoCs as candidates only at the equal protection guarantee in this manner:
the start of the campaign period, thereby, conveying the tacit
intent that persons holding appointive positions will only be
considered as resigned at the start of the campaign period when
they are already treated by law as candidates.

Parenthetically, it may be remembered that Section 67 of the

OEC and Section 11 of R.A. No. 8436 contained a similar
provision on automatic resignation of elective officials upon the
filing of their CoCs for any office other than that which they hold in
a permanent capacity or for President or Vice-President.
However, with the enactment of R.A. No. 9006, or the Fair
Election Act,19 in 2001, this provision was repealed by Section
1420 of the said act. There was, thus, created a situation of
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 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-a-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. 22
However, it must be remembered that the Court, in Fari᳼/i>, was
intently focused on the main issue of whether the repealing
clause in the Fair Election Act was a constitutionally proscribed
rider, in that it unwittingly failed to ascertain with stricter scrutiny
the impact of the retention of the provision on automatic
resignation of persons holding appointive positions (Section 66) in
the OEC, vis-୶ is the equal protection clause.- Moreover, the
Court's vision in Fari᳼/i> was shrouded by the fact that petitioners
᳠therein, Faret
᳠ al., never posed a direct challenge to the
᳠constitutionality of Section 66 of the OEC. Faret ᳠ al. rather merely
questioned, on constitutional grounds, the repealing clause, or
Section 14 of the Fair Election Act. The Court's afore-quoted
declaration in Fari᳼/i> may then very well be considered as an
obiter dictum.
III.
The instant case presents a rare opportunity for the Court, in view
of the constitutional challenge advanced by petitioners, once and
for all, to settle the issue of whether the second proviso in the
third paragraph of Section 13 of R.A. No. 9369, a reproduction of
Section 66 of the OEC, which, as shown above, was based on
provisions dating back to the American occupation, is violative of
the equal protection clause.
But before delving into the constitutional issue, we shall first
address the issues on legal standing and on the existence of an
actual controversy.
Central to the determination of locus standi is the question of
whether a party has alleged such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
questions.23 In this case, petitioners allege that they will be
directly affected by COMELEC Resolution No. 8678 for they
intend, and they all have the qualifications, to run in the 2010
elections. The OSG, for its part, contends that since petitioners
have not yet filed their CoCs, they are not yet candidates; hence,
they are not yet directly affected by the assailed provision in the
COMELEC resolution.
The Court, nevertheless, finds that, while petitioners are not yet
candidates, they have the standing to raise the constitutional
challenge, simply because they are qualified voters. A restriction
on candidacy, such as the challenged measure herein, affects the
rights of voters to choose their public officials. The rights of voters
and the rights of candidates do not lend themselves to neat
separation; laws that affect candidates always have at least some
theoretical, correlative effect on voters.24 The Court believes that
both candidates and voters may challenge, on grounds of equal
protection, the assailed measure because of its impact on voting
rights.25
In any event, in recent cases, this Court has relaxed the stringent
direct injury test and has observed a liberal policy allowing
ordinary citizens, members of Congress, and civil organizations to
prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.26
We have also stressed in our prior decisions that the exercise by
this Court of judicial power is limited to the determination and
resolution of actual cases and controversies.27 The Court, in this
case, finds that an actual case or controversy exists between the
petitioners and the COMELEC, the body charged with the
enforcement and administration of all election laws. Petitioners
have alleged in a precise manner that they would engage in the
very acts that would trigger the enforcement of the provisionthey
would file their CoCs and run in the 2010 elections. Given that the
assailed provision provides for ipso facto resignation upon the
filing of the CoC, it cannot be said that it presents only a
speculative or hypothetical obstacle to petitioners' candidacy. 28
IV.
Having hurdled what the OSG posed as obstacles to judicial
review, the Court now delves into the constitutional challenge.
It is noteworthy to point out that the right to run for public office
touches on two fundamental freedoms, those of expression and
of association. This premise is best explained in Mancuso v.
Taft,29 viz.:
Freedom of expression guarantees to the individual the
opportunity to write a letter to the local newspaper, speak out in a
public park, distribute handbills advocating radical reform, or
picket an official building to seek redress of grievances. All of
these activities are protected by the First Amendment if done in a
manner consistent with a narrowly defined concept of public order
and safety. The choice of means will likely depend on the amount
of time and energy the individual wishes to expend and on his
perception as to the most effective method of projecting his
message to the public. But interest and commitment are evolving
phenomena. What is an effective means for protest at one point
in time may not seem so effective at a later date. The dilettante
who participates in a picket line may decide to devote additional
time and resources to his expressive activity. As his commitment
increases, the means of effective expression changes, but the
expressive quality remains constant. He may decide to lead the
picket line, or to publish the newspaper. At one point in time he
may decide that the most effective way to give expression to his
views and to get the attention of an appropriate audience is to
become a candidate for public office-means generally considered
among the most appropriate for those desiring to effect change in
our governmental systems. He may seek to become a candidate
by filing in a general election as an independent or by seeking the
nomination of a political party. And in the latter instance, the
individual's expressive activity has two dimensions: besides
urging that his views be the views of the elected public official, he
is also attempting to become a spokesman for a political party
whose substantive program extends beyond the particular office
in question. But Cranston has said that a certain type of its
citizenry, the public employee, may not become a candidate and
may not engage in any campaign activity that promotes himself
as a candidate for public office. Thus the city has stifled what may
be the most important expression an individual can summon,
namely that which he would be willing to effectuate, by means of
concrete public action, were he to be selected by the voters.
It is impossible to ignore the additional fact that the right to run for
office also affects the freedom to associate. In Williams v.
Rhodes, supra, the Court used strict review to invalidate an Ohio
election system that made it virtually impossible for third parties to
secure a place on the ballot. The Court found that the First
Amendment protected the freedom to associate by forming and
promoting a political party and that that freedom was infringed
when the state effectively denied a party access to its electoral
machinery. The Cranston charter provision before us also affects
associational rights, albeit in a slightly different way. An individual
may decide to join or participate in an organization or political
party that shares his beliefs. He may even form a new group to
forward his ideas. And at some juncture his supporters and fellow
party members may decide that he is the ideal person to carry the
group's standard into the electoral fray. To thus restrict the
options available to political organization as the Cranston charter
provision has done is to limit the effectiveness of association; and
the freedom to associate is intimately related with the concept of
making expression effective. Party access to the ballot becomes
less meaningful if some of those selected by party machinery to
carry the party's programs to the people are precluded from doing
so because those nominees are civil servants.
Whether the right to run for office is looked at from the point of
view of individual expression or associational effectiveness, wide
opportunities exist for the individual who seeks public office. The
fact of candidacy alone may open previously closed doors of the
media. The candidate may be invited to discuss his views on
radio talk shows; he may be able to secure equal time on
television to elaborate his campaign program; the newspapers
may cover his candidacy; he may be invited to debate before
various groups that had theretofore never heard of him or his
views. In short, the fact of candidacy opens up a variety of
communicative possibilities that are not available to even the
most diligent of picketers or the most loyal of party followers. A
view today, that running for public office is not an interest
protected by the First Amendment, seems to us an outlook
stemming from an earlier era when public office was the preserve
of the professional and the wealthy. Consequently we hold that
candidacy is both a protected First Amendment right and a
fundamental interest. Hence any legislative classification that
significantly burdens that interest must be subjected to strict
equal protection review.30
Here, petitioners' interest in running for public office, an interest
protected by Sections 4 and 8 of Article III of the Constitution, is
breached by the proviso in Section 13 of R.A. No. 9369. It is now
the opportune time for the Court to strike down the said proviso
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 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 those
who hold appointive positions and those occupying elective posts,
does not justify such differential treatment.
In order that there can be valid classification so that a
discriminatory governmental act may pass the constitutional norm
of equal protection, it is necessary that the four (4) requisites of
valid classification be complied with, namely:
(1) It must be based upon substantial distinctions;
(2) It must be germane to the purposes of the law;
(3) It must not be limited to existing conditions only; and
(4) It must apply equally to all members of the class.
The first requirement means that there must be real and
substantial differences between the classes treated differently. As
illustrated in the fairly recent Mirasol v. Department of Public
Works and Highways,31 a real and substantial distinction exists
between a motorcycle and other motor vehicles sufficient to justify
its classification among those prohibited from plying the toll ways.
Not all motorized vehicles are created equal a two-wheeled
vehicle is less stable and more easily overturned than a four-
wheel vehicle.
Nevertheless, the classification would still be invalid if it does not
comply with the second requirement if it is not germane to the
purpose of the law. Justice Isagani A. Cruz (Ret.), in his treatise
on constitutional law, explains,
The classification, even if based on substantial distinctions, will
still be invalid if it is not germane to the purpose of the law. To
illustrate, the accepted difference in physical stamina between
men and women will justify the prohibition of the latter from
employment as miners or stevedores or in other heavy and
strenuous work. On the basis of this same classification,
however, the law cannot provide for a lower passing average for
women in the bar examinations because physical strength is not
the test for admission to the legal profession. Imported cars may
be taxed at a higher rate than locally assembled automobiles for
the protection of the national economy, but their difference in
origin is no justification for treating them differently when it comes
to punishing violations of traffic regulations. The source of the
vehicle has no relation to the observance of these rules. 32
The third requirement means that the classification must be
enforced not only for the present but as long as the problem
sought to be corrected continues to exist. And, under the last
requirement, the classification would be regarded as invalid if all
the members of the class are not treated similarly, both as to
rights conferred and obligations imposed.33
Applying the four requisites to the instant case, the Court finds
that the differential treatment of persons holding appointive
offices as opposed to those holding elective ones is not germane
to the purposes of the law.
The obvious reason for the challenged provision is to prevent the
use of a governmental position to promote one's candidacy, or
even to wield a dangerous or coercive influence on the electorate.
The measure is further aimed at promoting the efficiency,
integrity, and discipline of the public service by eliminating the
danger that the discharge of official duty would be motivated by
political considerations rather than the welfare of the public. 34 The
restriction is also justified by the proposition that the entry of civil
servants to the electoral arena, while still in office, could result in
neglect or inefficiency in the performance of duty because they
would be attending to their campaign rather than to their office
work.
If we accept these as the underlying objectives of the law, then
the assailed provision cannot be constitutionally rescued on the
ground of valid classification. Glaringly absent is the requisite that
the classification must be germane to the purposes of the law.
Indeed, whether one holds an appointive office or an elective one,
the evils sought to be prevented by the measure remain. 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 CoCs 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.
As to the danger of neglect, inefficiency or partisanship in the
discharge of the functions of his appointive office, the inverse
could be just as true and compelling. The public officer who files
his certificate of candidacy would be driven by a greater impetus
for excellent performance to show his fitness for the position
aspired for.
Mancuso v. Taft,35 cited above, explains that the measure on
automatic resignation, which restricts the rights of civil servants to
run for officea right inextricably linked to their freedom of
expression and association, is not reasonably necessary to the
satisfaction of the state interest. Thus, in striking down a similar
measure in the United States, Mancuso succinctly declares'
their discretion to forward their electoral ambitions rather than the
public welfare. Similarly if a public employee pressured other
fellow employees to engage in corrupt practices in return for
promises of post-election reward, or if an employee invoked the
power of the office he was seeking to extract special favors from
his superiors, the civil service would be done irreparable injury.
Conversely, members of the public, fellow-employees, or
supervisors might themselves request favors from the candidate
or might improperly adjust their own official behavior towards him.
Even if none of these abuses actually materialize, the possibility
of their occurrence might seriously erode the public's confidence
in its public employees. For the reputation of impartiality is
probably as crucial as the impartiality itself; the knowledge that a
clerk in the assessor's office who is running for the local zoning
board has access to confidential files which could provide
pressure points for furthering his campaign is destructive
regardless of whether the clerk actually takes advantage of his
opportunities. For all of these reasons we find that the state
indeed has a compelling interest in maintaining the honesty and
impartiality of its public work force.

In proceeding to the second stage of active equal protection

review, however, we do see some contemporary relevance of
the Mitchell decision. National Ass'n of Letter Carriers, supra. In
order for the Cranston charter provision to withstand strict
scrutiny, the city must show that the exclusion of all government
employees from candidacy is necessary to achieve a compelling
state interest. And, as stated in Mitchell and other cases dealing
with similar statutes, see Wisconsin State Employees, supra;
Broadrick, supra, government at all levels has a substantial
interest in protecting the integrity of its civil service. It is obviously
conceivable that the impartial character of the civil service would
be seriously jeopardized if people in positions of authority used
We do not, however, consider the exclusionary measure taken by
Cranston-a flat prohibition on office-seeking of all kinds by all
kinds of public employees-as even reasonably necessary to
satisfaction of this state interest. As Justice Marshall pointed out
in Dunn v. Blumstein, [s]tatutes affecting constitutional rights must
be drawn with precision. For three sets of reasons we conclude
that the Cranston charter provision pursues its objective in a far
too heavy-handed manner and hence must fall under the equal
protection clause. First, we think the nature of the regulation-a
broad prophylactic rule-may be unnecessary to fulfillment of the
city's objective. Second, even granting some sort of prophylactic
rule may be required, the provision here prohibits candidacies for
all types of public office, including many which would pose none
of the problems at which the law is aimed. Third, the provision
excludes the candidacies of all types of public employees, without
any attempt to limit exclusion to those employees whose
positions make them vulnerable to corruption and conflicts of
interest.
There is thus no valid justification to treat appointive officials
differently from the elective ones. The classification simply fails to
meet the test that it should be germane to the purposes of the
law. The measure encapsulated in the second proviso of the third
paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the
OEC violates the equal protection clause.
V.
The challenged provision also suffers from the infirmity of being
overbroad.
First, the provision pertains to all civil servants holding appointive
posts without distinction as to whether they occupy high positions
in government or not. Certainly, a utility worker in the government
will also be considered as ipso facto resigned once he files his
CoC for the 2010 elections. This scenario is absurd for, indeed, it
is unimaginable how he can use his position in the government to
wield influence in the political world.
While it may be admitted that most appointive officials who seek
public elective office are those who occupy relatively high
positions in government, laws cannot be legislated for them
alone, or with them alone in mind. For the right to seek public
elective office is universal, open and unrestrained, subject only to
the qualification standards prescribed in the Constitution and in
the laws. These qualifications are, as we all know, general and
basic so as to allow the widest participation of the citizenry and to
give free rein for the pursuit of one's highest aspirations to public
office. Such is the essence of democracy.
Second, the provision is directed to the activity of seeking any
and all public offices, whether they be partisan or nonpartisan in
character, whether they be in the national, municipal or barangay
level. Congress has not shown a compelling state interest to
restrict the fundamental right involved on such a sweeping
scale.36
Specific evils require specific treatments, not through overly
broad measures that unduly restrict guaranteed freedoms of the
citizenry. After all, sovereignty resides in the people, and all
governmental power emanates from them.
Mancuso v. Taft,37 on this point, instructs
As to approaches less restrictive than a prophylactic rule, there
exists the device of the leave of absence. Some system of leaves
of absence would permit the public employee to take time off to
pursue his candidacy while assuring him his old job should his
candidacy be unsuccessful. Moreover, a leave of absence policy
would eliminate many of the opportunities for engaging in the
questionable practices that the statute is designed to prevent.
While campaigning, the candidate would feel no conflict between
his desire for election and his publicly entrusted discretion, nor
any conflict between his efforts to persuade the public and his
access to confidential documents. But instead of adopting a
reasonable leave of absence policy, Cranston has chosen a
provision that makes the public employee cast off the security of
hard-won public employment should he desire to compete for
elected office.
The city might also promote its interest in the integrity of the civil
service by enforcing, through dismissal, discipline, or criminal
prosecution, rules or statutes that treat conflict of interests,
bribery, or other forms of official corruption. By thus attacking the
problem directly, instead of using a broad prophylactic rule, the
city could pursue its objective without unduly burdening the First
Amendment rights of its employees and the voting rights of its
citizens. Last term in Dunn v. Blumstein, the Supreme Court
faced an analogous question when the State of Tennessee
asserted that the interest of ballot box purity justified its imposition
of one year and three month residency requirements before a
citizen could vote. Justice Marshall stated, inter alia, that
Tennessee had available a number of criminal statutes that could
be used to punish voter fraud without unnecessary infringement
on the newcomer's right to vote. Similarly, it appears from the
record in this case that the Cranston charter contains some
provisions that might be used against opportunistic public
employees.
Even if some sort of prophylactic rule is necessary, we cannot
say that Cranston has put much effort into tailoring a narrow
provision that attempts to match the prohibition with the problem.
The charter forbids a Cranston public employee from running for
any office, anywhere. The prohibition is not limited to the local
offices of Cranston, but rather extends to statewide offices and
even to national offices. It is difficult for us to see that a public
employee running for the United States Congress poses quite the
same threat to the civil service as would the same employee if he
were running for a local office where the contacts and information
provided by his job related directly to the position he was seeking,
and hence where the potential for various abuses was greater.
Nor does the Cranston charter except the public employee who
works in Cranston but aspires to office in another local
jurisdiction, most probably his town of residence. Here again the
charter precludes candidacies which can pose only a remote
threat to the civil service. Finally, the charter does not limit its
prohibition to partisan office-seeking, but sterilizes also those
public employees who would seek nonpartisan elective office.
The statute reviewed in Mitchell was limited to partisan political
activity, and since that time other courts have found the partisan-
nonpartisan distinction a material one. See Kinnear, supra;
Wisconsin State Employees, supra; Gray v. Toledo, supra. While
the line between nonpartisan and partisan can often be blurred by
systems whose true characters are disguised by the names given
them by their architects, it seems clear 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 to warrant distinctive treatment in a charter of this
sort.
The third and last area of excessive and overinclusive coverage
of the Cranston charter relates not to the type of office sought, but
to the type of employee seeking the office. As Justice Douglas
pointed out in his dissent in Mitchell, 330 U.S. at 120-126, 67
S.Ct. 556, restrictions on administrative employees who either
participate in decision-making or at least have some access to
information concerning policy matters are much more justifiable
than restrictions on industrial employees, who, but for the fact that
the government owns the plant they work in, are, for purposes of
access to official information, identically situated to all other
industrial workers. Thus, a worker in the Philadelphia mint could
be distinguished from a secretary in an office of the Department
of Agriculture; so also could a janitor in the public schools of
Cranston be distinguished from an assistant comptroller of the
same city. A second line of distinction that focuses on the type of
employee is illustrated by the cases of Kinnear and Minielly,
supra. In both of these cases a civil service deputy decided to run
for the elected office of sheriff. The courts in both cases felt that
the no-candidacy laws in question were much too broad and
indicated that perhaps the only situation sensitive enough to
justify a flat rule was one in which an inferior in a public office
electorally challenged his immediate superior. Given all these
considerations, we think Cranston has not given adequate
attention to the problem of narrowing the terms of its charter to
deal with the specific kinds of conflict-of-interest problems it
seeks to avoid.
We also do not find convincing the arguments that after-hours
campaigning will drain the energy of the public employee to the
extent that he is incapable of performing his job effectively and
that inevitable on-the-job campaigning and discussion of his
candidacy will disrupt the work of others. Although it is
indisputable that the city has a compelling interest in the
performance of official work, the exclusion is not well-tailored to
effectuate that interest. Presumably the city could fire the
individual if he clearly shirks his employment responsibilities or
disrupts the work of others. Also, the efficiency rationale common
to both arguments is significantly underinclusive. It applies
equally well to a number of non-political, extracurricular activities
that are not prohibited by the Cranston charter. Finally, the
connection between after-hours campaigning and the state
interest seems tenuous; in many cases a public employee would
be able to campaign aggressively and still continue to do his job
well.38
the second requisite for a valid classification, which is on its face
unconstitutional.
On a final note, it may not be amiss to state that 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 and, thus, uphold
fundamental liberties over age-old, but barren, restrictions to such
freedoms.
WHEREFORE, premises considered, the petition is GRANTED.
The second proviso in the third paragraph of Section 13 of
Republic Act No. 9369, Section 66 of the Omnibus Election Code
and Section 4(a) of COMELEC Resolution No. 8678 are declared
as UNCONSTITUTIONAL.
SO ORDERED.

Incidentally, Clements v. Fashing39 sustained as constitutional a

provision on the automatic resignation of District Clerks, County
Clerks, County Judges, 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 G.R. No. 202202               March 19, 2013
Attorneys, Public Weighers, and Constables if they announce
their candidacy or if they become candidates in any general, SILVERIO R. TAGOLINO, Petitioner,
special or primary election. vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL
In Clements, it may be readily observed that a provision treating AND LUCY MARIE TORRES-GOMEZ, Respondents.
differently particular officials, as distinguished from all others,
under a classification that is germane to the purposes of the law, DECISION
merits the stamp of approval from American courts. Not, however,
a general and sweeping provision, and more so one violative of PERLAS-BERNABE, J.:
Assailed in this Petition for Certiorari and Prohibition under Rule
65 of the Rules of Court is the March 22, 2012 Decision 1 of the
House of Representatives Electoral Tribunal (HRET) in HRET
Case No. 10-031 (QW) which declared the validity of private
respondent Lucy Marie Torres-Gomez’s substitution as the
Liberal Party’s replacement candidate for the position of Leyte
Representative (Fourth Legislative District) in lieu of Richard
Gomez.
The Facts
On November 30, 2009, Richard Gomez (Richard) filed his
certificate of candidacy2 (CoC) with the Commission on Elections
(COMELEC), seeking congressional office as Representative for
the Fourth Legislative District of Leyte under the ticket of the
Liberal Party. Subsequently, on December 6, 2009, one of the
opposing candidates, Buenaventura Juntilla (Juntilla), filed a
Verified Petition,3 alleging that Richard, who was actually a
resident of College Street, East Greenhills, San Juan City, Metro
Manila, misrepresented in his CoC that he resided in 910 Carlota
Hills, Can-adieng, Ormoc City. In this regard, Juntilla asserted
that Richard failed to meet the one (1) year residency
requirement under Section 6, Article VI4 of the 1987 Philippine
Constitution (Constitution) and thus should be declared
disqualified/ineligible to run for the said office. In addition, Juntilla
prayed that Richard’s CoC be denied due course and/or
cancelled.5
On February 17, 2010, the COMELEC First Division rendered a
Resolution6 granting Juntilla’s petition without any qualification.
The dispositive portion of which reads:
WHEREFORE, premises considered, the Commission
RESOLVED, as it hereby RESOLVE, to GRANT the Petition to
Disqualify Candidate for Lack of Qualification filed by
BUENAVENTURA O. JUNTILLA against RICHARD I. GOMEZ.
Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a
candidate for the Office of Congressman, Fourth District of Leyte,
for lack of residency requirement.
SO ORDERED.
Aggrieved, Richard moved for reconsideration but the same was
denied by the COMELEC En Banc through a Resolution dated
May 4, 2010.7 Thereafter, in a Manifestation of even date, Richard
accepted the said resolution with finality "in order to enable his
substitute to facilitate the filing of the necessary documents for
substitution."8
On May 5, 2010, Lucy Marie Torres-Gomez (private respondent)
filed her CoC9 together with a Certificate of Nomination and
Acceptance10 from the Liberal Party endorsing her as the party’s
official substitute candidate vice her husband, Richard, for the
same congressional post. In response to various letter-requests
submitted to the COMELEC’s Law Department (Law
Department), the COMELEC En Banc, in the exercise of its
administrative functions, issued Resolution No. 889011 on May 8,
2010, approving, among others, the recommendation of the said
department to allow the substitution of private respondent. The
recommendation reads:
STUDY AND OBSERVATION
On the same date, this Department received an Opposition from
Mr. Buenaventura O. Juntilla, thru his counsel, opposing the
candidacy of Ms. Lucy Marie Torres Gomez, as a substitute
candidate for Mr. Richard I. Gomez.
The crux of the opposition stemmed from the issue that there
should be no substitution because there is no candidate to
substitute for.
It must be stressed that the resolution of the First Division, this
Commission, in SPA No. 09-059 speaks for disqualification of
candidate Richard I. Gomez and not of cancellation of his
Certificate of Candidacy:
‘Wherefore, premises considered, the Commission RESOLVED,
as it hereby RESOLVES, to GRANT the Petition to Disqualify
Candidate for Lack of Qualification filed x x x against RICHARD I.
GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as
a candidate for the Office of Congressman, Fourth District of
Leyte, for lack of residency requirement.’
The said resolution was affirmed by the Commission En Banc on
May 04, 2010.
The disqualification of a candidate does not automatically cancel
one’s certificate of candidacy, especially when it is nominated by
a political party. In effect, the political party is still allowed to
substitute the candidate whose candidacy was declared
disqualified. After all, the right to substitute is a privilege given to
a political party to exercise and not dependent totally to a
candidate.
Nonetheless, in case of doubt, the same must always be resolved
to the qualification of a candidate to run in the public office.
The substitution complied with the requirements provided under
Section 12 in relation to Section 13 of Comelec Resolution No.
8678 dated October 6, 2009.
xxxx
In view of the foregoing, the Law Department RECOMMENDS
the following:
xxxx
2. TO ALLOW CANDIDATE LUCY MARIE TORRES GOMEZ AS
A SUBSTITUTE CANDIDATE FOR RICHARD GOMEZ:
(Emphasis and underscoring supplied)
xxxx
The following day, or on May 9, 2010, Juntilla filed an Extremely
Urgent Motion for Reconsideration12 (May 9, 2010 Motion) of the
above-mentioned COMELEC En Banc resolution
Pending resolution of Juntilla’s May 9, 2010 Motion, the national
and local elections were conducted as scheduled on May 10,
2010. During the elections, Richards, whose name remained on
the ballots, garnered 101, 250 votes while his opponents, namely,
Eufrocino Codilla, Jr. and herein petitioner Silverio Tagolino,
obtained 76,549 and 493 votes, respectively.13 In view of the
aforementioned substitution, Richard’s votes were credited in
favor of private respondent and as a result, she was proclaimed
the duly-elected Representative of the Fourth District of Leyte.
On May 11, 2010, Juntilla filed an Extremely Urgent Motion to
resolve the pending May 9, 2010 Motion relative to Resolution
No. 8890.14 The said motion, however, remained unacted.
On May 24, 2010, petitioner filed a Petition15 for quo warranto
before the HRET in order to oust private respondent from her
congressional seat, claiming that: (1) she failed to comply with the
one (1) year residency requirement under Section 6, Article VI of
the Constitution considering that the transfer of her voter
registration from San Rafael Bulacan 16 to the Fourth District of
Leyte was only applied for on July 23, 2009; (2) she did not
validly substitute Richard as his CoC was void ab initio; and (3)
private respondent’s CoC was void due to her non-compliance
with the prescribed notarial requirements i.e., she failed to
present valid and competent proof of her identity before the
notarizing officer.17
In her Verified Answer,18 private respondent denied petitioner’s
allegations and claimed that she validly substituted her husband
in the electoral process. She also averred that she personally
known to the notary public who notarized her CoC, one Atty.
Edgardo Cordeno, and thus, she was not required to have
presented any competent proof of identity during the notarization
of the said document. Lastly, she asserted that despite her
marriage to Richard and exercise of profession in Metro Manila,
she continued to maintain her residency in Ormoc City which was
the place where she was born and raised.
During the preliminary conference, and as shown in the
Preliminary Conference Order dated September 2, 2010, the
parties agreed on the following issues for resolution:
1. Whether or not the instant petition for quo warranto is
meritorious;
2. Whether or not the substitution of respondent is valid;
3. Whether or not a petition for quo warranto can be used as
a substitute for failure to file the necessary petition for
disqualification with the COMELEC;
4. Whether or not respondent’s COC was duly subscribed;
and
5. Whether or not respondent is ineligible for the position of
Representative of the Fourth District of Leyte for lack of
residency requirement.19
Ruling of the HRET
After due proceedings, the HRET issued the assailed March 22,
2012 Decision20 which dismissed the quo warranto petition and
declared that private respondent was a qualified candidate for the
position of Leyte Representative (Fourth Legislative District). It
observed that the resolution denying Richard’s candidacy i.e., the
COMELEC First Division’s February 17, 2010 Resolution, spoke
of disqualification and not of CoC cancellation. Hence, it held that
the substitution of private respondent in lieu of Richard was legal
and valid.21 Also, it upheld the validity of private respondent’s CoC
due to petitioner’s failure to controvert her claim that she was
personally known to the notary public who notarized her
CoC.22 Finally, the HRET ruled that while it had been admitted
that private respondent resides in Colgate Street, San Juan City
and lived in San Rafael, Bulacan, the fact was she continued to
retain her domicile in Ormoc City given that her absence
therefrom was only temporary.
Hence, the instant petition.
Issues Before the Court
The crux of the present controversy is whatever or not the HRET
gravely abused its discretion in finding that Richard was validly
substituted by private respondent as candidate for Leyte
Representative (Fourth Legislative District) in view of the former’s
failure to meet the one (1) year residency requirement provided
under Section 6, Article VI of the Constitution.
It is petitioner’s submission that the HRET gravely abused its
discretion when it upheld the validity of private respondent’s
substitution despite contrary jurisprudence holding that
substitution is impermissible where the substituted candidate’s
CoC was denied due course to and/or cancelled, as in the case of
Richard. On the other hand, respondents maintain that Richard’s
CoC was not denied due course to and/or cancelled by the
COMELEC as he was only "disqualified" and therefore, was
properly substituted by private respondent.
Ruling of the Court
The petition is meritorious.
A. Distinction between a petition for disqualification and a petition
to deny due course to/cancel a certificate of candidacy
The Omnibus Election Code23 (OEC) provides for certain
remedies to assail a candidate’s bid for public office. Among
these which obtain particular significance to this case are: (1) a
petition for disqualification under Section 68; and (2) a petition to
deny due course to and/or cancel a certificate of candidacy under
Section 78. The distinctions between the two are well-perceived.
Primarily, a disqualification case under Section 68 of the OEC is
hinged on either: (a) a candidate’s possession of a permanent
resident status in a foreign country;24 or (b) his or her commission
of certain acts of disqualification. Anent the latter, the prohibited
acts under Section 68 refer to election offenses under the OEC,
and not to violations of other penal laws.25 In particular, these are:
(1) giving money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral
functions; (2) committing acts of terrorism to enhance one’s
candidacy; (3) spending in one’s election campaign an amount in
excess of that allowed by the OEC; (4) soliciting, receiving or
making any contribution prohibited under Sections 89, 95, 96, 97
and 104 of the OEC; and (5) violating Sections
80,26 83,27 85,28 8629 and 261, paragraphs d,30 e,31 k,32 v,33 and cc,
sub-paragraph 634 of the OEC. Accordingly, the same provision
(Section 68) states that any candidate who, in an action or protest
in which he or she is a party, is declared by final decision of a
competent court guilty of, or found by the COMELEC to have
committed any of the foregoing acts shall be disqualified from
continuing as a candidate for public office, or disallowed from
holding the same, if he or she had already been elected. 35
It must be stressed that one who is disqualified under Section 68
is still technically considered to have been a candidate, albeit
proscribed to continue as such only because of supervening
infractions which do not, however, deny his or her statutory
eligibility. In other words, while the candidate’s compliance with
the eligibility requirements as prescribed by law, such as age,
residency, and citizenship, is not in question, he or she is,
however, ordered to discontinue such candidacy as a form of
penal sanction brought by the commission of the above-
mentioned election offenses.
On the other hand, a denial of due course to and/or cancellation
of a CoC proceeding under Section 78 of the OEC36 is premised
on a person’s misrepresentation of any of the material
qualifications required for the elective office aspired for. It is not
enough that a person lacks the relevant qualification; he or she
must have also made a false representation of the same in the
CoC.37 The nature of a Section 78 petition was discussed in the
case of Fermin v. COMELEC,38 where the Court illumined:
Let it be misunderstood, the denial of due course to or the
cancellation of the CoC is not based on the lack of qualifications
but on a finding that the candidate made a material
representation that is false, which may relate to the qualifications
required of the public office he/she is running for. It is noted that
the candidates states in his/her CoC that he/she is eligible for the
office he/she seeks. Section 78 of the OEC, therefore, is to be
read in relation to the constitutional and statutory provisions on
qualifications or eligibility for public office. If the candidate
subsequently states a material representation in the CoC that is
false, the COMELEC, following the law, is empowered to deny
due course to or cancel such certificate. Indeed, the Court has
already likened a proceeding under Section 78 to a quo warranto
proceeding under Section 253 of the OEC since they both deal
with the eligibility or qualification of a candidate, with the
distinction mainly in the fact that a "Section 78" petition is filed
before proclamation, while a petition for quo warranto is filed after
proclamation of the winning candidate. (Emphasis supplied)
Corollary thereto, it must be noted that the deliberateness of the
misrepresentation, much less one’s intent to defraud, is of bare
significance in a Section 78 petition as it is enough that the
person’s declaration of a material qualification in the CoC be
false. In this relation, jurisprudence holds that an express finding
that the person committed any deliberate misrepresentation is of
little consequence in the determination of whether one’s CoC
should be deemed cancelled or not.39 What remains material is
that the petition essentially seeks to deny due course to and/or
cancel the CoC on the basis of one’s ineligibility and that the
same be granted without any qualification. 40
Pertinently, while a disqualified candidate under Section 68 is still
considered to have been a candidate for all intents and purposes,
on the other hand, a person whose CoC had been denied due
course to and/or cancelled under Section 78 is deemed to have
not been a candidate at all. The reason being is that a cancelled
CoC is considered void ab initio and thus, cannot give rise to a
valid candidacy and necessarily, to valid votes.41 In Talaga v.
COMELEC42 (Talaga), the Court ruled that:
x x x x While a person who is disqualified under Section 68 is
merely prohibited to continue as a candidate, a person who
certificate is cancelled or denied due course under Section 78 is
not treated as a candidate at all, as if he/she never filed a CoC.
The foregoing variance gains utmost importance to the present
case considering its implications on candidate substitution.
B. Valid CoC as a condition sine qua non for candidate
substitution
Section 77 of the OEC provides that if an official candidate of a
registered or accredited political party dies, withdraws or is
disqualified for any cause, a person belonging to and certified by
the same political party may file a CoC to replace the candidate
who died, withdrew or was disqualified. It states that:
Sec. 77. Candidates in case of death, disqualification or
withdrawal of another. - If after the last day for the filing of
certificates of candidacy, an official candidate of a registered or
accredited political party dies, withdraws or is disqualified for any
cause, only a person belonging to, and certified by, the same
political party may file a certificate of candidacy to replace the
candidate who died, withdrew or was disqualified. (Emphasis
supplied)
Evidently, Section 77 requires that there be an "official candidate"
before candidate substitution proceeds. Thus, whether the ground
for substitution is death, withdrawal or disqualification of a
candidate, the said section unequivocally states that only an
official candidate of a registered or accredited party may be
substituted.43
As defined under Section 79(a) of the OEC, the term "candidate"
refers to any person aspiring for or seeking an elective public
office who has filed a certificate of candidacy by himself or
through an accredited political party, aggroupment, or coalition of
parties. Clearly, the law requires that one must have validly filed a
CoC in order to be considered a candidate. The requirement of
having a CoC obtains even greater importance if one considers
its nature. In particular, a CoC formalizes not only a person’s
public declaration to run for office but evidences as well his or her
statutory eligibility to be elected for the said post. In Sinaca v.
Mula,44 the Court has illumined:
A certificate of candidacy is in the nature of a formal
manifestation to the whole world of the candidate’s political creed
or lack of political creed. It is a statement of a person seeking to
run for a public office certifying that he announces his candidacy
for the office mentioned and the be is eligible for the office, the
name of the political party to which he belongs, if he belongs to
any, and his post-office address for all election purposes being as
well stated. (Emphasis and underscoring supplied).
In this regard, the CoC is the document which formally accords
upon a person the status of a candidate. In other words, absent a
valid CoC one is not considered a candidate under legal
contemplation. As held in Talaga:45
x x x a person’s declaration of his intention to run for public office
and his affirmation that he possesses the eligibility for the position
he seeks to assume, followed by the timely filing of such
declaration, constitute a valid CoC that render the person making
the declaration a valid or official candidate. (Emphasis supplied)
Considering that Section 77 requires that there be a candidate in
order for substitution to take place, as well as the precept that a
person without a valid CoC is not considered as a candidate at
all, it necessarily follows that if a person’s CoC had been denied
due course to and/or cancelled, he or she cannot be validly
substituted in the electoral process. The existence of a valid CoC
is therefore a condition sine qua non for a disqualified candidate
to be validly substituted.46
C. Divergent effects of disqualification and denial of due course to
and/or cancellation of CoC cases vis-à-vis candidate substitution
Proceeding, from the foregoing discourse, it is evident that there
lies a clear-cut distinction between a disqualification case under
Section 68 and denial of due course to and/or cancellation of
COC case under Section 78 vis-à-vis their respective effects on
candidate substitution under Section 77. 1âwphi1
As explained in the case of Miranda v. Abaya47 (Miranda), a
candidate who is disqualified under Section 68 can be validly
substituted pursuant to Section 77 because he remains a
candidate until disqualified; but a person whose CoC has been
denied due course to and/or cancelled under Section 78 cannot
be substituted because he is not considered a candidate. 48 Stated
differently, since there would be no candidate to speak of under a
denial of due course to and/or cancellation of a CoC case, then
there would be no candidate to be substituted; the same does not
obtain, however, in a disqualification case since there remains to
be a candidate to be substituted, although his or her candidacy is
discontinued.
On this note, it is equally revelatory that Section 77 expressly
enumerates the instances where substitution is permissible, that
is when an official candidate of a registered or accredited political
party "dies, withdraws or is disqualified for any cause."
Noticeably, material misrepresentation cases are not included in
the said section and therefore, cannot be a valid basis to proceed
with candidate substitution.
D. Application to the case at bar
In this case, it is undisputed that Richard was disqualified to run
in the May 10, 2010 elections due to his failure to comply with the
one year residency requirement. 49 The confusion, however,
stemmed from the use of the word "disqualified" in the February
17, 2010 Resolution of the COMELEC First Division, which was
adopted by the COMELEC En Banc in granting the substitution of
private respondent, and even further perpetuated by the HRET in
denying the quo warranto petition. In short, a finding that Richard
was merely disqualified – and not that his CoC was denied due
course to and/or cancelled – would mean that he could have
been validly substitute by private respondent, thereby legitimizing
her candidacy.
Yet the fact that the COMELEC First Division’s February 17, 2010
Resolution did not explicitly decree the denial of due course to
and/or cancellation of Richard’s CoC should not have obviated
the COMELEC En Banc from declaring the invalidity of private
respondent’s substitution. It should be stressed that the clear and
unequivocal basis for Richard’s "disqualification" is his failure to
comply with the residency requirement under Section 6, Article VI
of the Constitution which is a ground for the denial of due course
to and/or cancellation a CoC under Section 78 of the OEC,
misrepresentation contemplated under a Section 78 petition
refers to statements affecting one’s qualifications for elective
office such as age, residence and citizenship or non-possession
of natural-born Filipino status.51 There is therefore no legal basis
to support a finding of disqualification within the ambit of election
laws. Accordingly, given Richard’s non-compliance with the one
year residency requirement, it cannot be mistaken that the
COMELEC First Division’s unqualified grant of Juntilla’s "Verified
Petition to Disqualify Candidate for Lack of Qualification" 52 –
which prayed that the COMELEC declare Richard
"DISQUALIFIED and INELIGIBLE from seeking the office of
Member of the House of Representatives" and "x x x that his
Certificate of Candidacy x x x be DENIED DUE COURSE and/or
CANCELLED"53 – carried with it the denial of due course to and/or
cancellation of Richard’s CoC pursuant to Section 78.
Case law dictates that if a petition prays for the denial of due
course to and/or cancellation of CoC and the same is granted by
the COMELEC without any qualification, the cancellation of the
candidate’s CoC in in order. This is precisely the crux of the
Miranda ruling wherein the Court, in upholding the COMELEC En
Banc’s nullification of the substitution in that case, decreed that
the COMELEC Division’s unqualified grant of the petition
necessarily included the denial of due course to and/or
cancellation of the candidate’s CoC, notwithstanding the use of
the term "disqualified" in the COMELEC Division’s resolution, as
the foregoing was prayed for in the said petition:
The question to settle next is whether or not aside from Joiel
"Pempe" Miranda being disqualified by the COMELEC in its May
5, 1998 resolution, his certificate of candidacy had likewise been
denied due course and cancelled.
The Court rules that it was.
Private respondent’s petition in SPA No. 98-019 specifically
prayed for the following:
WHEREFORE, it is respectfully prayed that the Certificate of
Candidacy filed by respondent for the position of Mayor for the
City of Snatiago be not given due course and/or cancelled.
Other reliefs just and equitable in the premises are likewise
prayed for.
In resolving the petition filed by private respondent specifying a
very particular relief, the COMELEC ruled favorably in the
following manner:
WHEREFORE, in view of the foregoing, the Commission (FIRST
DIVISION) GRANTS the Petition. Respondent JOSE "Pempe"
MIRANDA is hereby DISQUALIFIED from running for the position
of mayor of Santiago City, Isabela, in the May 11, 1998 national
and local elections.
SO ORDERED.
From a plain reading of the dispositive portion of the COMELEC
resolution of May 5, 1998 in SPA No. 98-019, it is sufficiently
clear that the prayer specifically and particularly sought in the
petition was GRANTED, there being no qualification on the matter
whatsoever. The disqualification was simply ruled over and above
the granting of the specific prayer for denial of due course and
cancellation of the certificate of candidacy.
xxxx
There is no dispute that the complaint or petition filed by private
respondent in SPA No. 98-019 is one to deny due course and to
cancel the certificate of candidacy of Jose "Pempe" Miranda.
There is likewise no question that the said petition was
GRANTED without any qualification whatsoever. It is rather clear,
therefore, that whether or not the COMELEC granted any further
relief in SPA No. 98-019 by disqualifying the candidate, the fact
remains that the said petition was granted and that the certificate
of candidacy of Jose "Pempe" Miranda was denied due course
and cancelled. (Emphasis and underscoring supplied)
The same rule was later discussed in the case of Talaga, viz:
3. Granting without any qualification or petition in SPA No. 09-
029(DC) manifested COMELEC’s intention to declare Ramon
disqualified and to cancel his CoC
xxxx
In Miranda v. Abaya, the specific relief that the petition prayed for
was that the CoC "be not given due course and/or cancelled".
The COMELEC categorically granted "the petition" and then
pronounced – in apparent contradiction – that Joel Pempe
Miranda was "disqualified." The Court held that the COMELEC,
by granting the petition without any qualification, disqualified Joel
Pempe Miranda and at the same time cancelled Jose Pempe
Miranda’s CoC.
xxxx
The crucial point of Miranda v. Abaya was that the COMELEC
actually granted the particular relief of cancelling or denying due
course to the CoC prayed for in the petition by not subjecting that
relief to any qualification. (Emphasis and underscoring supplied)
In view of the foregoing rulings, the COMELEC En Banc direly
misconstrued the COMELEC First Division’s February 17, 2010
Resolution when it adopted the Law Department’s finding that
Richard was only "disqualified" and that his CoC was not denied
due course to and/or cancelled, paving the way for the approval
of private respondent’s substitution. It overlooked the fact that the
COMELEC First Division’s ruling encompassed the cancellation
of Richard’s CoC and in consequence, disallowed the substitution
of private respondent. It was therefore grave and serious error on
the part of the COMELEC En Banc to have approved private
respondent’s substitution.
Consequently, in perpetuating the COMELEC En Banc’s error as
above-discussed, the HRET committed a grave abuse of
discretion, warranting the grant of the instant petition.
Fundamental is the rule that grave abuse of discretion arises
when a lower court or tribunal patently violates the Constitution,
the law or existing jurisprudence. 54 While it is well-recognized that
the HRET has been empowered by the Constitution to be the
"sole judge" of all contests relating to the election, returns, and
qualifications of the members of the House, the Court maintains
jurisdiction over it to check "whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction" on the part of the latter. 55 In other words, when the
HRET utterly disregards the law and settled precedents on the
matter before it, it commits a grave abuse of discretion.
Records clearly show that: (1) Richard was held ineligible as a
congressional candidate for the Fourth District of Leyte due to his
failure to comply with the one year residency requirement; (2)
Juntilla’s petition prayed for the denial of due course to and/or
cancellation of his CoC; and (3) the COMELEC First Division
granted the foregoing petition without any qualification. By these
undisputed and essential facts alone, the HRET should not have
adopted the COMELEC En Banc’s erroneous finding that the
COMELEC First Division’s February 17, 2010 Resolution "speaks
only of "disqualification and not of cancellation of Richard’s
CoC"36 and thereby, sanctioned the substitution of private
respondent.
Lest it be misunderstood, the HRET is not bound by previous
COMELEC pronouncements relative to the qualifications of the
Members of the House. Being the sole judge 57 of all contests
relating to the election, returns, and qualifications of its respective
members, the HRET cannot be tied down by COMELEC
resolutions, else its constitutional mandate58 be circumvented and
rendered nugatory. Instructive on this point is the Court’s
disquisition in Fernandez v. HRET,59 to wit:
Private respondent concludes from the above that petitioner had
no legal basis to claim that the HRET, when reference to the
qualification/s of Members of the House of Representatives is
concerned, is "co-equal", to the COMELEC respecting the matter
of eligibility and qualification of a member of the House of
Representatives. The truth is the other way around, because the
COMELEC is subservient to the HRET when the dispute or
contest at issue refers to the eligibility and/or qualification of a
Member of the House of Representatives. A petition for quo
warranto is within the exclusive jurisdiction of the HRET as sole
judge, and cannot be considered forum shopping even if another
body may have passed upon in administrative or quasi-judicial
proceedings the issue of the Member’s qualification while the
Member was still a candidate. There is forum-shopping only
where two cases involve the same parties and the same cause of
action. The two cases here are distinct and dissimilar in their
nature and character. (Emphasis and underscoring supplied)
Notably, the phrase "election, returns, and qualifications" should
be interpreted in its totality as referring to all matters affecting the
validity of the contestee’s title. More particularly, the term
"qualifications" refers to matters that could be raised in a quo
warranto proceeding against the pro-claimed winner, such as his
disloyalty or ineligibility, or the inadequacy of his certificate of
candidacy.60 As used in Section 74 of the OEC, the word "eligible"
means having the right to run for elective public office, that is,
having all the qualifications and none of the ineligibilities to run for
the public office.61 In this relation, private respondent’s own
qualification to run for public office – which was inextricably linked
to her husband’s own qualifications due to her substitution – was
the proper subject of quo warranto proceedings falling within the
exclusive jurisdiction of the HRET and independent from any
previous proceedings before the COMELEC, lest the jurisdiction
divide between the two be blurred.
Nonetheless, it must be pointed out that the HRET’s
independence is not without limitation. As earlier mentioned, the
Court retains certiorari jurisdiction over the HRET if only to check
whether or not it has gravely abused its discretion. In this regard,
the Court does not endeavor to denigrate nor undermine the
HRET’s independence; rather, it merely fulfills its duty to ensure
that the Constitution and the laws are upheld through the exercise
of its power of judicial review.
In fine, the Court observes that the HRET wantonly disregarded
the law by deliberately adopting the COMELEC En Banc’s flawed
findings regarding private respondent’s eligibility to run for public
office which essentially stemmed from her substitution. In this
light, it cannot be gainsaid that the HRET gravely abused its
discretion.
Owing to the lack of proper substitution in its case, private
respondent was therefore not a bona fide candidate for the
position of Representative for the Fourth District of Leyte when
she ran for office, which means that she could not have been
elected. Considering this pronouncement, there exists no cogent
reason to further dwell on the other issues respecting private
respondent’s own qualification to office.
WHEREFORE, the petition is GRANTED. Accordingly, the March
22, 2012 Decision rendered by the House of Representatives
Electoral Tribunal in HRET Case No. 10-031 (QW) is hereby
REVERSED and SET ASIDE.
SO ORDERED.
[G.R. No. 135886. August 16, 1999]
 VICTORINO SALCEDO II, Petitioner, vs.
COMMISSION ON ELECTIONS and ERMELITA CACAO
SALCEDO, Respondents.
DECISION
GONZAGA-REYES, J.:
This is a petition for certiorari under Rule 65 of the 1997
Rules of Court of the en banc  Resolution of the
Commission on Elections (Comelec) dated October 6,
1998, which reversed the earlier Resolution issued by its
Second Division on August 12, 1998.
From the pleadings and the annexes, the following
uncontroverted facts have been established -
On February 18, 1968, Neptali P. Salcedo married Agnes
Celiz, which marriage is evidenced by a certified true
copy of the marriage contract issued by the Municipal
Civil Registrar of Ajuy, Iloilo.1 Without his first marriage
having been dissolved, Neptali P. Salcedo married private
respondent Ermelita Cacao in a civil ceremony held on
September 21, 1986.2 Two days later, on September 23,
1986, Ermelita Cacao contracted another marriage with a
certain Jesus Aguirre, as shown by a marriage certificate
filed with the Office of the Civil Registrar. 3
cräläwvirtualibräry
Petitioner Victorino Salcedo II and private respondent
Ermelita Cacao Salcedo both ran for the position of
mayor of the municipality of Sara, Iloilo in the May 11,
1998 elections, both of them having filed their respective
certificates of candidacy on March 27, 1998.4 However,
on April 17, 1998, petitioner filed with the Comelec a
petition5 seeking the cancellation of private respondents
certificate of candidacy on the ground that she had made
a false representation therein by stating that her
surname was Salcedo. Petitioner contended that private
respondent had no right to use said surname because
she was not legally married to Neptali Salcedo. On May
13, 1998, private respondent was proclaimed as the duly
elected mayor of Sara, Iloilo.6 cräläwvirtualibräry
In her answer, private respondent claimed that she had
no information or knowledge at the time she married
Neptali Salcedo that he was in fact already married; that,
upon learning of his existing marriage, she encouraged
her husband to take steps to annul his marriage with
Agnes Celiz because the latter had abandoned their
marital home since 1972 and has not been heard from
since that time; that on February 16, 1998, Neptali
Salcedo filed a petition for declaration of presumptive
death before Branch 66 of the Regional Trial Court of
Barotac Viejo, Iloilo, which was granted by the court in
its April 8, 1998 decision; that Neptali Salcedo and Jesus
Aguirre are one and the same person; and that since
1986 up to the present she has been using the surname
Salcedo in all her personal, commercial and public
transactions.7cräläwvirtualibräry
On August 12, 1998, the Comelecs Second Division
ruled, by a vote of 2 to 1,8 that since there is an existing
valid marriage between Neptali Salcedo and Agnes Celiz,
the subsequent marriage of the former with private
respondent is null and void. Consequently, the use by
private respondent of the surname Salcedo constitutes
material misrepresentation and is a ground for the
cancellation of her certificate of candidacy. The pertinent
portion of the Resolution reads as follows
The only issue to be resolved is whether or not the use
by respondent of the surname Salcedo in her certificate
of candidacy constitutes material misrepresentation
under Section 78 in relation to Section 74 of the Omnibus
Election Code.
Section 78 of the of the (sic) Omnibus Election Code
reads:
A verified petition seeking to deny due course to or
cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material
misrepresentation contained therein as required under
Section 74 hereof is false. The petition may be filed at
any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than
fifteen days before the election.
A candidates name or surname contained in the
certificate of candidacy is required under Section 74 of
the Omnibus Election Code and is a material
mispresentation.
Gleaned from the records, respondent admitted that she
married Neptali Salcedo on September 21, 1986 in a civil
ceremony held in Sara, Iloilo and that she married Jesus
Aguirre on September 23, 1986. For the petitioner, this
admission is supported by a marriage contract (attached
as Annex C of the Petition) and a certificate of marriage
(attached as Annex D of the petition) where the
contracting parties are Jesus Aguirre and Ermelita Cacao.
On the other hand, respondent tries to create the
impression that Neptali Salcedo and Jesus Aguirre are
one and the same persons. This Commission, however,
holds the view that regardless of whether Neptali Salcedo
and Jesus Aguirre are the same persons, the fact remains
irrefutable is that at the time respondent contracted
marriage with Neptali Salcedo, the latter has a valid
existing marriage with Agnes Celiz and this was
sufficiently established by a marriage contract executed
on February 18, 1968 and attached to the petition as
Annex E. Respondent cannot seek refuge in her bare
assumption that since Agnes Celiz was declared as
presumptively dead by the Regional Trial Court of
Barotac Viejo, Iloilo, she was free to marry Neptali
Salcedo. In point of fact and law, there was considerably
NO pronouncement to the effect that the marriage of
Neptali Salcedo and Agnes Celiz was annulled by the
court and that Salcedo became free to marry respondent.
From all indications, it is to be fairly assumed that since
there is an existing valid marriage between Neptali
Salcedo and Agnes Celiz, the subsequent marriage of the
former with the respondent is null and void.
Consequently, the use by the respondent of the surname
Salcedo constitutes material misrepresentation and is a
ground for the cancellation of her certificate of candidacy.
WHEREFORE, this Commission (SECOND DIVISION)
RESOLVED, as it hereby RESOLVES, to CANCEL the
Certificate of Candidacy of respondent for the position of
Municipal Mayor of Sara, Iloilo in the May 11, 1998
elections.9
However, in its en banc Resolution dated October 6,
1998, the Comelec overturned its previous resolution,
ruling that private respondents certificate of candidacy
did not contain any material misrepresentation. It
disposed of the case in this manner -
The record shows that respondent Ermelita C. Salcedo
married Neptali Salcedo on September 21, 1986. Under
Article 370 of the Civil Code, the respondent may use her
husbands surname. Hence, there is no material
misrepresentation nor usurpation of anothers name.
At any rate, its has been said that the filing of a
certificate of candidacy is a technicality that should be
enforced before the election, but can be disregarded
after the electorate has made the choosing (Collado vs.
Alonzo, 15 SCRA 526). This rule is in consonance with
the policy announced in many decisions that the rules
and regulations, for the conduct of elections, are
mandatory before the elections, but when it is sought to
enforce them after the elections, they are held to be
directory only (Lambonao vs. Tero, 15 SCRA 716).
Futhermore, the municipal board of canvassers
proclaimed the respondent last May 13, 1998, as the
duly elect mayor of the municipality of Sara, Province of
Iloilo. Any defect in the respondents cerficate of
candidacy should give way to the will of the electorate.
WHEREFORE, the COMMISSION resolves to GRANT the
instant Motion for Reconsideration. We REVERSE the
resolution (Second Division) promulgated on August 12,
1998, cancelling the certificate of candidacy of the
respondent Ermelita C. Salcedo. The proclamation of
Ermelita C. Salcedo, as mayor of Sara, Iloilo, remains
valid, there being no legal ground to set it aside. 10
This last resolution of the Comelec prompted petitioner to
repair to this Court by way of a petition
for certiorari under Rule 65, claiming that public
respondents ruling was issued in grave abuse of its
discretion.
Contrary to petitioners contention, we are of the opinion
that the main issue in this case is not whether or not
private respondent is entitled to use a specific surname
in her certificate of candidacy,11 but whether the use of
such surname constitutes a material misrepresentation
under section 78 of the Omnibus Election Code (the
Code) so as to justify the cancellation of her certificate of
candidacy. We hold that it does not.
Every person aspiring to hold any elective public office
must file a sworn certificate of candidacy. 12 One of the
things which should be stated therein is that the
candidate is eligible for the office.13
cräläwvirtualibräry
In case there is a material misrepresentation in the
certificate of candidacy, the Comelec is authorized to
deny due course to or cancel such certificate upon the
filing of a petition by any person pursuant to section 78
of the Code which states that -
A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material
misrepresentation contained therein as required
under Section 74 hereof is false. The petition may be
filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy
and shall be decided, after due notice and hearing,
not later than fifteen days before the election.
If the petition is filed within the statutory period and the
candidate is subsequently declared by final judgment to
be disqualified before the election, he shall not be voted
for, and the votes cast for him shall not be counted. If for
any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for
and receives the winning number of votes in such
election, the Court or the Comelec shall continue with the
trial and hearing of the action, inquiry, or protest and,
upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of
his guilt is strong.14 The fifteen-day period in section 78
for deciding the petition is merely directory.15 cräläwvirtualibräry
As stated in the law, in order to justify the cancellation of
the certificate of candidacy under section 78, it is
essential that the false representation mentioned therein
pertain to a material matter for the sanction imposed by
this provision would affect the substantive rights of a
candidate - the right to run for the elective post for which
he filed the certificate of candidacy. Although the law
does not specify what would be considered as a material
representation, the Court has interpreted this phrase in a
line of decisions applying section 78 of the Code.
In Abella vs. Larrazabal, supra, a petition was filed with
the Comelec seeking the disqualification of private
respondent Larrazabal for alleged false statements in her
certificate of candidacy regarding residence. The Court
held that the challenge made against private respondents
claimed residence was properly classified as a proceeding
under section 78, despite the fact that it was filed only on
the very day of the election.16cräläwvirtualibräry
Meanwhile, in Labo vs. Commission on Elections,17 the
disqualification proceeding filed by respondent pursuant
to section 78 of the Code sought to cancel the certificate
of candidacy filed by petitioner Ramon Labo, who ran for
mayor of Baguio City in the last May 11, 1992 elections,
based on the ground that Labo made a false
representation when he stated therein that he is natural-
born citizen of the Philippines. The Court, speaking
through Justice Abdulwahid A. Bidin, held that Labo,
having failed to submit any evidence to prove his
reacquisition of Philippine citizenship, is not a Filipino
citizen and respondent Comelec did not commit any
grave abuse of discretion in cancelling his certificate of
candidacy. The Court went on to say that the possession
of citizenship, being an indispensable requirement for
holding public office, may not be dispensed with by the
fact of having won the elections for it strikes at the very
core of petitioner Labos qualification to assume the
contested office.
A similar issue was dealt with in the Frivaldo vs.
Commission on Elections  cases18 wherein Frivaldos
qualification for public office was questioned in a petition
filed by petitioner Raul R. Lee, praying that Frivaldo be
disqualified from seeking or holding any public office or
position and that his certificate of candidacy be cancelled
by reason of his not yet being a citizen of the Philippines.
The Court held that Frivaldo had reacquired Philippine
citizenship by virtue of his repatriation under P.D. 725
and was qualified to hold the position of governor of
Sorsogon.
The Court has likened a proceeding under section 78 to
a  quo warranto proceeding under section 253 since they
both deal with the qualifications of a candidate. In the
case of Aznar vs. Commission on Elections,19 wherein a
petition was filed asking the Comelec to disqualify private
respondent Emilio Osmena on the ground that he does
not possess the requisite Filipino citizenship, the Court
said -
There are two instances where a petition questioning
the qualifications of a registered candidate to run for
the office for which his certificate of candidacy was filed
can be raised under the Omnibus Election Code (B.P. Blg.
881), to wit:
(1) Before election,  pursuant to Section 78 thereof which
provides that:
Section 78. Petition to deny due course or to cancel a
certificate of candidacy. - A verified petition seeking to
deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground
that any material misrepresentation contained therein as
required under Section 74 hereof is false. The petition
may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy
and shall be decided, after due notice and hearing, not
later than fifteen days before the election.
and
(2) After election, pursuant to Section 253 thereof, viz:
Sec. 253. Petition for quo warranto. - Any
voter contesting the election of any Member of the
Batasang Pambansa20, regional, provincial, or city officer
on the ground of ineligibility or of disloyalty to the
Republic of the Philippines shall file a sworn petition
for quo warranto with the Commission within ten days
after the proclamation of the results of the election.
(emphasis supplied)
The only difference between the two proceedings is that,
under section 78, the qualifications for elective office are
misrepresented in the certificate of candidacy and the
proceedings must be initiated before the elections,
whereas a petition for quo warranto  under section 253
may be brought on the basis of two grounds - (1)
ineligibility or (2) disloyalty to the Republic of the
Philippines, and must be initiated within ten days after
the proclamation of the election results. Under section
253, a candidate is ineligible if he is disqualified to be
elected to office,21 and he is disqualified if he lacks any of
the qualifications for elective office.
In still another case, where the petition to disqualify
petitioner was based upon an alleged false representation
in the certificate of candidacy as to the candidates age,
the Court once again drew a parallel between a petition
for quo warranto and a petition to cancel a certificate of
candidacy when it stated that if a person qualified to file
a petition to disqualify a certain candidate fails to file the
petition within the 25-day period prescribed by Section
78 of the Code for whatever reasons, the elections laws
do not leave him completely helpless as he has another
chance to raise the disqualification of the candidate by
filing a petition for quo warranto  within ten (10) days
from the proclamation of the results of the election, as
provided under Section 253 of the Code. 22 cräläwvirtualibräry
Therefore, it may be concluded that the material
misrepresentation contemplated by section 78 of the
Code refer to qualifications for elective office. This
conclusion is strengthened by the fact that the
consequences imposed upon a candidate guilty of having
made a false representation in his certificate of candidacy
are grave to prevent the candidate from running or, if
elected, from serving, or to prosecute him for violation of
the election laws.23 It could not have been the intention
of the law to deprive a person of such a basic and
substantive political right to be voted for a public office
upon just any innocuous mistake.
Petitioner has made no allegations concerning private
respondents qualifications to run for the office of mayor.
Aside from his contention that she made a
misrepresentation in the use of the surname Salcedo,
petitioner does not claim that private respondent lacks
the requisite residency, age, citizenship or any other
legal qualification necessary to run for a local elective
office as provided for in the Local Government
Code.24 Thus, petitioner has failed to discharge the
burden of proving that the misrepresentation allegedly
made by private respondent in her certificate of
candidacy pertains to a material matter.
Aside from the requirement of materiality, a false
representation under section 78 must consist of a
deliberate attempt to mislead, misinform, or hide a fact
which would otherwise render a candidate ineligible. 25 In
other words, it must be made with an intention to
deceive the electorate as to ones qualifications for public
office. The use of a surname, when not intended to
mislead or deceive the public as to ones identity, is not
within the scope of the provision.
There is absolutely no showing that the inhabitants of
Sara, Iloilo were deceived by the use of such surname by
private respondent. Petitioner does not allege that the
electorate did not know who they were voting for when
they cast their ballots in favor of Ermelita Cacao Salcedo
or that they were fooled into voting for someone else by
the use of such name. It may safely be assumed that the
electorate knew who private respondent was, not only by
name, but also by face and may have even been
personally acquainted with her since she has been
residing in the municipality of Sara, Iloilo since at least
1986.26 Bolstering this assumption is the fact that she
has been living with Neptali Salcedo, the mayor of Sara
for three consecutive terms, since 1970 and the latter
has held her out to the public as his wife.27cräläwvirtualibräry
Also arguing against petitioners claim that private
respondent intended to deceive the electorate is the fact
that private respondent started using the surname
Salcedo since 1986, several years before the elections. In
her application for registration of her rice and corn
milling business filed with the Department of Trade and
Industry in 1993, private respondent used the name
Ermelita Cacao Salcedo.28 From 1987 to 1997, she also
used the surname Salcedo in the income tax returns filed
by herself and by Neptali Salcedo.29 The evidence
presented by private respondent on this point, which has
remained uncontested by petitioner, belie the latters
claims that private respondent merely adopted the
surname Salcedo for purposes of improving her chances
of winning in the local elections by riding on the
popularity of her husband.
Thus, we hold that private respondent did not commit
any material misrepresentation by the use of the
surname Salcedo in her certificate of candidacy.
Having disposed of the major issues, we will now proceed
to tackle the secondary issues raised in the petition.
Petitioner claims that the following circumstances
constitute grave abuse of discretion on the part of the
Comelec: (1) the October 6, 1998 en banc Resolution of
the Comelec, sustaining the validity of private
respondents certificate of candidacy, merely duplicated
the dissenting opinion of Commissioner Desamito of the
Second Division in the August 12, 1998 Resolution; (2)
Chairman Pardo, the ponente of the en banc Resolution,
and Commissioner Guiani, both members of the Second
Division who ruled in favor of petitioner in the August 12,
1998 Resolution, reversed their positions in the en
banc resolution; and (3) the en banc Resolution was
promulgated on the very same day that Chairman Pardo
took his oath of office as Associate Justice of the
Supreme Court.
Petitioner does not indicate what legal provision or
equitable principle the Comelec transgressed by the
commission of these acts. We find nothing legally
assailable with the Comelecs adoption in its en
banc Resolution of the reasoning contained in the
dissenting opinion of Commissioner Desamito; nor is the
en banc Resolution rendered infirm by the mere change
of position adopted by Chairman Pardo and Guiani of the
Second Division. Precisely, the purpose of a motion for
reconsideration is to allow the adjudicator a second
opportunity to review the case and to grapple with the
issues therein, deciding anew a question previously
raised.30 There is no legal proscription imposed upon the
deciding body against adopting a position contrary to one
previously taken.
Finally, the fact that the decision was promulgated on the
day Chairman Pardo, the ponente of the  en
banc Resolution, took his oath of office as Associate
Justice of the Supreme Court does not give ground to
question the Comelec decision for then Chairman Pardo
enjoys the presumption of regularity in the performance
of his official duties, a presumption which petitioner has
failed to rebut. At any rate, the date of promulgation is
not necessarily the date of signing.
In upholding the validity of private respondents
certificate of candidacy, we reiterate that [t]he sanctity
of the people's will must be observed at all times if our
nascent democracy is to be preserved. In any challenge
having the effect of reversing a democratic voice,
expressed through the ballot, this Court should be ever
so vigilant in finding solutions which would give effect to
the will of the majority, for sound public policy dictates
that all elective offices are filled by those who have
received the highest number of votes cast in an election.
When a challenge to a winning candidate's qualifications
however becomes inevitable, the ineligibility ought to be
so noxious to the Constitution that giving effect to the
apparent will of the people would ultimately do harm to
our democratic institutions.31 Since there appears to be
no dispute as to private respondents qualifications to
hold the office of municipal mayor, the will of the
electorate must prevail.
WHEREFORE, the Court hereby AFFIRMS the en
banc Resolution of the Commission on Elections dated
October 6, 1998 denying the petition to cancel private
respondents certificate of candidacy. No pronouncement
as to costs.
SO ORDERED.
G.R. No. 212398               November 25, 2014
EMILIO RAMON "E.R." P. EJERCITO, Petitioner,
vs.
HON. COMMISSION ON ELECTIONS and EDGAR "EGA Y" S.
SAN LUIS, Respondents.
DECISION
PERALTA, J.:
Contested in this petition for certiorari under Rule 64, in relation to
Rule 65 of the Rules of Court (Rules), is the May 21, 2014
Resolutio  of the Commission on Elections (COMELEC) En Banc
1 Commission of having (a) given money or other
in SPA No. 13-306 (DC), which affirmed the September 26, 2013
Resolution  of the COMELEC First Division granting the petition
2 voters or public officials performing electoral functions; (b)
for disqualification filed by private respondent Edgar "Egay" S.
San Luis (San Luis) against petitioner Emilio Ramon "E.R." P.
Ejercito (Ejercito). Three days prior to the May 13, 2013 National
and Local Elections, a petition for disqualification was filed by San
Luis before the Office of the COMELEC Clerk in Manila against
Ejercito, who was a fellow gubernatorial candidate and, at the
time, the incumbent Governor of the Province of Laguna.  Alleged
3 shall be disqualified from continuing as a candidate, or if
in his Petition are as follows:
FIRST CAUSE OF ACTION
5. [Ejercito], during the campaign period for 2013 local
election, distributed to the electorates of the province of
Laguna the so-called "Orange Card" with an intent to
influence, induce or corrupt the voters in voting for his
favor. Copy thereof is hereto attached and marked as
Annex "C" and made as an integral part hereof;
6. In furtherance of his candidacy for the position of
Provincial Governor of Laguna, [Ejercito] and his cohorts
claimed that the said "Orange Card" could be used in any
public hospital within the Province of Laguna for their
medical needs as declared by the statements of
witnesses which are hereto attached and marked as
Annex "D" as integral part hereof;
7. The so-called "Orange Card" is considered a material
consideration in convincing the voters to cast their votes
for [Ejercito’s] favor in clear violation of the provision of
the Omnibus Election Code which provides and I quote:
"Sec. 68. Disqualifications. – Any candidate who, in an
action or protest in which he is a party is declared by final
decision by a competent court guilty of, or found by the
materialconsideration to influence, induce or corrupt the
committed acts of terrorism to enhance his candidacy; (c)
spent in his election campaign an amount in excess of
that allowed by this Code; (d) solicited, received or made
any contribution prohibited under Sections 89, 95, 96, 97
and 104; or (e) violated any of Sections 80, 83, 85, 86,
and 261, paragraphs d, e, k, v, and cc, subparagraph 6,
hehas been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a
foreign country shall not be qualified to run for any
elective office under this Code, unless said person has
waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence
requirement provided for in the election laws." (emphasis
ours)
8. Thus, pursuant to the mandate of the aforesaid law,
[Ejercito] should be disqualified;
SECOND CAUSE OF ACTION
9. Based on the records of the Provincial COMELEC, the 12. However, in total disregard and violation of the afore-
Province of Laguna has a total of 1,525,522 registered quoted provision of law, [Ejercito] exceeded his
electorate. A certification issued by the Provincial Election expenditures in relation to his campaign for the 2013
Supervisor is hereto attached and marked as Annex "E" election. For television campaign commercials alone,
as an integral part hereof; [Ejercito] already spent the sum of Ph₱23,730.784 based
on our party’s official monitoring on the following dates[:]
10. In this regard, par. (a), Section 5 of COMELEC April 28, May 4 & May 5, 2013.
Resolution No. 9615, otherwise known as the Rules and
Regulations Implementing FAIR ELECTION ACT providesNetwork Date Program Time Duration Amount*
and I quote:
4 minutes
ABS-CBN April 28, 2013 TV Patrol 5:58 p.m. ₱3,297,496
"Authorized Expenses of Candidates and Parties. –The (approximately)
aggregate amount that a candidate or party may spent for Sundays Best 4 minutes
election campaign shall be as follows: ABS-CBN April 28, 2013 10:40 p.m. ₱3,297,496
(local specials) (approximately)

a. For candidates – Three pesos (₱3.00) for every Sunday Night 3 minutes
April 28, 2013 10:46 p.m. ₱2,635,200
voter currently registered in the constituency Box Office (approximately)
where the candidate filed his certificate of
Sunday Night 4 minutes
candidacy. April 28, 2013 11:06 p.m. ₱2,635,200
Box Office (approximately)
b. For other candidates without any political party Sunday Night 4 minutes
April 28, 2013 11:18 p.m. ₱2,635,200
and without any support from any political party – Box Office (approximately)
Five pesos (₱5.00) for every voter currently
Sunday Night 4 minutes
registered in the constituency where the candidate April 28, 2013 11:47 p.m. ₱2,635,200
Box Office (approximately)
filed his certificate of candidacy.
4 minutes
ABS-CBN May 4, 2013 TODA MAX 11:26 p.m. ₱3,297,496
c. For Political Parties and party-list groups – Five (approximately)
pesos (₱5.00) for every voter currently registered
in the constituency or constituencies where itABS-CBN
has 4 minutes
May 5, 2013 Rated K 8:06 p.m. ₱3,297,496
official candidates. (underscoring mine for (approximately)
emphasis)       Total ₱23,730.784

11. Accordingly, a candidate for the position of Provincial

Governor of Laguna is only authorized to incur an election * Total cost based on published rate card;
expense amounting to FOUR MILLION FIVE HUNDRED
SEVENTY-SIX THOUSAND FIVE HUNDRED SIXTY-SIX 13. Even assuming that [Ejercito] was given 30% discount
(₱4,576,566.00) PESOS. as prescribed under the Fair Election Act, he still
exceeded in the total allowable expenditures for which he
paid the sum of ₱16,611,549;
14. In view of the foregoing disquisitions, it is evident that
[Ejercito] committed an election offense as provided for
under Section 35 of COMELEC Resolution No. 9615,
which provides and I quote:
"Election Offense. – Any violation of R.A. No. 9006 and
these Rules shall constitute an election offense
punishable under the first and second paragraph of
Section 264 of the Omnibus Election Code in addition to
administrative liability, whenever applicable. x x x"
15. Moreover, it is crystal clear that [Ejercito] violated Sec.
68 of the Omnibus Election Code which provides and I
quote:
"Sec. 68. Disqualifications. – Any candidate who, in an
action or protest in which he is a party is declared by final
decision by a competent court guilty of, or found by the
Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or
public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c)
spent in his election campaign an amount in excess of
that allowed by this Code; (d) solicited, received or made
any contribution prohibited under Sections 89, 95, 96, 97
and 104; or (e) violated any of Sections 80, 83, 85, 86,
and 261, paragraphs d, e, k, v, and cc, subparagraph 6,
shall be disqualified from continuing asa candidate, or if
he has been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a
foreign country shall not be qualified to run for any
elective office under this Code, unless said person has
waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence
requirement provided for in the election laws." (emphasis
ours)
16. On the other hand, the effect of disqualification is
provided under Sec. 6 of Republic Act No. 6646, which
states and I quote:
"Effect of Disqualification Case. – Any candidate who has
been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he
is voted for and receives the winning number of votes in
such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry or protest
and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of
the proclamation of such candidate whenever the
evidence of [his] guilt is strong." (emphasis mine)
PRAYER
WHEREFORE, premises considered, it is respectfully prayed
that:
1. Upon filing of this petition, a declaration by the
Honorable Commission of the existence of probable
cause be made against [Ejercito] for violating the afore-
quoted provisions of laws;
2. In the event that [Ejercito] will beable to get a majority
vote of the electorate of the Province of Laguna on May
13, 2013, his proclamation be suspended until further
order of the Honorable Commission pursuant to Sec. 6 of
Republic Act No. 6646;
 3. Lastly, a criminal case for VIOLATION OF ELECTION
LAWS be filed against [Ejercito] before the proper court[;]
[and]
4. Other relief, just and equitable underthe premises, are
also prayed for.4
Subsequently, on May 16, 2013, San Luis filed a Very Urgent
ExParte Motion to Issue Suspension of Possible Proclamation of
Respondent and Supplemental to the Very Urgent Ex-Parte
Motion to Issue Suspension of Possible Proclamation of
Respondent.  However, these were not acted upon by the
5 election expenditures, Ejercito submitted that the accusation
COMELEC. The next day, Ejercito and Ramil L. Hernandez were
proclaimed by the Provincial Board of Canvassers as the duly-
elected Governor and Vice-Governor, respectively, of
Laguna.  Based on the Provincial/District Certificate of Canvass,
6 Citing Sinaca v. Mula,  Ejercito asserted that the petition
Ejercito obtained 549,310 votes compared with San Luis’ 471,209
votes.7
The COMELEC First Division issued a Summons with Notice of
Conference on June 4, 2013.  Ejercito then filed his Verified
8 eligible candidate and that his victory is a testament that he is
Answeron June 13, 2013 that prayed for the dismissal of the
petition due to procedural and substantive irregularities and
taking into account his proclamation as Provincial Governor.  He 9 Lastly, Ejercito considered San Luis’ petition for disqualification
countered that the petition was improperly filed because, based
on the averments and relief prayed for, it is in reality a complaint
for election offenses; thus, the case should have been filed before
the COMELEC Law Department, or the election registrar,
provincial election supervisor or regional election director, or the
state, provincial or city prosecutor in accordance with Laurel v.
Presiding Judge, RTC, Manila, Br. 10.  Assuming that the petition
10
could be given due course, Ejercito argued that San Luis failed to
show, conformably with Codilla, Sr. v. Hon. De Venecia,  that he
11
(Ejercito) was previously convicted or declared by final judgment
of a competent court for being guilty of, or found by the
COMELEC of having committed, the punishable acts under
Section 68 of Batas Pambansa (B.P.) Bilang 881, or the Omnibus
Election Code of the Philippines, as amended (OEC). 12
As to the acts he allegedly committed, Ejercito claimed that the
same are baseless, unfounded, and totally speculative. He stated
that the Health Access Program or the E.R. "Orange Card" was a
priority project of his administration as incumbent Governor of
Laguna and was never intended to influence the electorate during
the May 2013 elections. He added that the "Orange Card," which
addressed the increasing need for and the high cost of quality
health services, provides the Laguneños not only access to
medical services but also the privilege to avail free livelihood
seminars to help them find alternative sources of income. With
respect to the charge of having exceeded the total allowable
deserves no consideration for being speculative, self-serving, and
uncorroborated by any other substantial evidence.
13
questioning his qualification was rendered moot and academic by
his proclamation as the duly-elected Provincial Governor
ofLaguna for the term 2013-2016. He perceived that his
successful electoral bid substantiates the fact that he was an
more than qualified and competent to hold public office.
as purely frivolous and with no plain and clear purpose but to
harass and cause undue hardship. According to him, the fact that
it was filed only a few days before the May 13, 2013 elections
evidently shows that it was lodged as a last-ditch effort to
baselessly derail and obstruct his assumption of office and
function as the duly-elected Laguna Governor.
The scheduled case conference between the parties on June 13,
2013 was reset to June 27, 2013.  In the latter date, all the
14
documentary exhibits were marked in evidence and the parties
agreed to file their respective memorandum within ten (10) days. 15
San Luis substantially reiterated the content of the Petitionin his
Memorandum.  Additionally, he alleged that:
16
15. After the election, [San Luis] was able to secure documents
from the Information and Education Department of the
Commission on Elections showing that [Ejercito] have incurred
advertising expenses with ABS-CBN in the amount of
[₱20,197,170.25] not to mention his advertisement with GMA 7.
Copies of the summary report, media purchase order, advertising
contract[,] and official receipt are marked as EXHS. "B-1", "B-2",
"B-3", and"B-4" (Annexes "A", "B", "C", and "D", supplemental to
the very urgent ex-parte motion)[.] 17
It was stressed that the case is a "Special Action for
Disqualification" seeking to disqualify Ejercito as gubernatorial
candidate for violation of Section 68 (a) (c) of the OEC. He
prayed that "[t]he Petition BE GRANTED [and] x x x [Ejercito] BE
DISQUALIFIED, and PREVENTED from further holding office as
Governor of Laguna."  In refutation of Ejercito’s defenses, San
18
Luis argued that it is precisely because of the commission of the
election offenses under Section 68 of the OEC that he (Ejercito)
should be disqualified. Also, citing Section 6 of Republic Act
(R.A.) No. 6646,  San Luis contended that Ejercito’s proclamation
19
and assumption of office do not affect the COMELEC’s
jurisdiction to continue with the trial and hearing of the action until
it is finally resolved.
For his part, Ejercito filed a Manifestation (In Lieu of
Memorandum)20 restating all the arguments set forth in his
Verified Answer.
On September 26, 2013, the COMELEC First Division
promulgated a Resolution, the dispositive portion of which reads:
WHEREFORE, premises considered, the Commission (First
Division) RESOLVED, as it hereby RESOLVES, to:
(1) GRANTthe Petition for Disqualification filed against
respondent Emilio Ramon "E.R." P. Ejercito;
(2) DISQUALIFY respondent Ejercito from holding the
Office of the Provincial Governor of Laguna, pursuant to
Section 68 of the Omnibus Election Code;
(3) ORDER respondent Ejercito to CEASE and DESIST
from performing the functions of the Office of the
Provincial Governor of Laguna;
(4) DECLARE a permanent VACANCY in the Office of the
Provincial Governor of Laguna;
(5) DIRECT the duly elected Vice Governor of Laguna to
assume the Office of the Provincial Governor by virtue of
succession as provided in Section 44 of the Local
Government Code; and
(6) DIRECT the Campaign Finance Unit to coordinate with
the Law Department of this Commission for the conduct of
a preliminary investigation into the alleged violations of
campaign finance laws, rules and regulations committed
by respondent Ejercito.
SO ORDERED. 21
On procedural matters, the COMELEC First Division held that the
title of San Luis’ petition and its reliance on Section 68 (a) (c) of
the OEC as grounds for his causes of action clearly show that the
case was brought under Rule 25 of the COMELEC Rules of
Procedure,  as amended by COMELEC Resolution No.
22
9523,  which allows petitions for disqualification to be filed "any
23
day after the last day for filing of certificates of candidacy, but not
later than the date of proclamation." No credence was given to
Ejercito’s contention that the petition was mooted by his
proclamation as Governor of Laguna. The COMELEC First
Division opined that the case of Sinacais inapplicable, because it
was not about Sinaca’s eligibility or whether he committed any of
the acts enumerated in Section 68 of the OEC. Consistent with
 Maquiling v. Commission on Elections,  it was declared that
24
Beneficiary Jeorge "ER" Ejercito Estregan
Ejercito’s garnering of more votes than San Luis in the May 2013
elections is not tantamount to condonation of any act or acts that Broadcast Schedule April 27, 28, May 3, 4, 10 & 11, 2013
he committed which may be found to bea ground for
Number of Spots 6 spots of 3.5 minutes each
disqualification or election offense.
Unit Cost per Spot PhP 3,366,195.04
The COMELEC First Division settled the substantive issues put
forth in the petition for disqualification in this wise: Total Cost of Contract PhP 20,197,170.25 plus VAT

Anent [San Luis’] first cause of action, [San Luis] presented the The Contract contains the signature of [Ejercito] signifying his
Sworn Statement dated [May 7, 2013]of a certain Mrs. Daisy A. acceptance of the donation by SCI, the latter represented by its
Cornelio, together with the "Orange Card" issued to Mrs. Executive Vice President, Ms. Maylyn Enriquez. In addition to the
Cornelio, marked respectively as Exhibits "A-4" and "A-3" as per advertising contract, Exhibit "B-4" was submitted, which is a
[San Luis’] Summary of Exhibits– to prove that [Ejercito] photocopy of an Official Receipt issued by ABS-CBN for the
committed the act described in Section 68 (a) of the OEC. After contract, with the following details:
reviewing Mrs. Cornelio’s Sworn Statement, we do not find any
averment to the effect that the Orange Card was given to the Date of the Receipt [April 26, 2013]
affiant to influence or induce her to vote for [Ejercito]. Affiant only
stated that she was given the Orange Card "last April of this year" Received From Scenema Concept International, Inc.
and that she was "not able to use it during those times when [she]
or one of [her] family members got sick and needed hospital Amount Received PhP 6,409,235.28
assistance." Aside from Mrs. Cornelio’s Sworn Statement, there is Official Receipt No. 278499
no other evidence to support [San Luis’] claim, leading us to
reject[San Luis’] first cause of action.

With respect to the second cause of action, [San Luis] presented

Exhibits "B-1" to "B-4", which are submissions made by the ABS-
CBN Corporation as mandated by Section 6 of Republic Act No.
9006 ("RA 9006" or the "Fair Election Act"), implemented through
Section 9 (a) of Resolution No. 9615. Exhibit "B-3" is an
Advertising Contractbetween ABS-CBN Corporation and
Scenema Concept International, Inc. ("SCI"). The details of the
Contractare as follows:
Payor/Advertiser Scenema Concept International, Inc.
Upon verification of the submitted Exhibits "B-1" to "B-4" with this
Commission’s Education and Information Department (EID), the
latter having custody of all advertising contracts submitted by
broadcast stations and entities in relation tothe [May 13, 2013]
National and Local Elections, we find the said Exhibits tobe
faithful reproductions of our file copy of the same. A comparison
of [Ejercito’s] signature on the Advertising Contractand that on his
Certificate of Candidacy show them to be identical to each other,
leading us to the conclusion that [Ejercito] had indeed accepted
the PhP 20,197,170.25 donation in the form of television
advertisements to be aired on ABS-CBN’s Channel 2. Even if we
were to assume that only PhP 6,409,235.28 was actually paid out
of PhP 20,197,170.25 advertising contract, thisamount is still The specific details on the dates of airing, program or time slot
more than PhP 4,576,566.00, which is [Ejercito’s] total authorized when the advertisements were aired, and the time when the
aggregate amount allowed for his election campaign, computed advertisements as culled from the 99-page Daily Operations
as follows: Logare summarized as thus:

Number of Authorized Date aired Program/Time Slot Airtime

registered expense Total amount of
voters for the per voter spending allowed28 Apr 2013 TV Patrol Linggo/5:20-5:30 pm 05:54:40 PM
x =
whole registered for election 28 Apr 2013 Harapan: Senatorial Debate/9:30-11:30 pm 10:40:13 PM
Province of in the campaign
Laguna constituency 04 May 2013 TODA MAX/10:30-11:15 pm 11:26:43 PM

1,525,522 05 May 2013 Rated K-Handa Na Ba Kayo/7:15-8:15 pm 08:06:42 PM

PhP 3.00 per
registered x = PhP 4,576,566.00
voter 09 May 2013
voters in Laguna
10 May 2013
While not presented as evidence in this case, we cannot deny11
existence of another Advertising Contract dated [May 8, 2013]for
one (1) spot of a 3.5-minute advertisement scheduled for
broadcast on [May 9, 2013], amounting to PhP 3,366,195.05.
This Contract also contains the signature of [Ejercito] accepting
the donation from SCI and is accompanied by an ABS-CBN-
issued Official Receipt No. 279513 dated [May 7, 2013] in SCI’s
name for PhP 6,409,235.28. If we add the amounts from both
contracts, we arrive at a total cost of PhP 23,563,365.29, which,
coincidentally, is the product of:
Number of spots x Unit cost per spot = Total contract cost
Seven (7) spots x PhP 3,366,195.04 = PhP 23,563,365.28
TV Patrol/6:30-7:45 pm 07:35:56 PM
TV Patrol/6:30-7:45 pm 07:44:50 PM
the
May 2013 TV Patrol Sabado/5:30-6:00 pm 06:12:30 PM
Source: Pages 6, 8, 43, 47, 75, 84, and 93 of ABS-CBN Channel
2 Daily Operations Log for [April 27, 2013] to [May 11, 2013].
Assuming arguendo, that the actual cost of both contracts only
amounted to PhP 12,818,470.56 as substantiated by the two (2)
Official Receipt sissued by the ABS-CBN on [April 26] and [May
7, 2013], or even if we were only to consider Exhibit ["B-4"] or the
Php 6,409,235.28 payment to ABS-CBN on [April 26, 2013], it
nevertheless supports our finding that [Ejercito] exceeded his
authorized expenditure limit of PhP 4,576,566.00 which is a
ground for disqualification under Section 68 (c) and concurrently
an election offense pursuant to Section 100 in relation to Section
262 of the Omnibus Election Code. 25

This matches the data gathered by the Commission’s EID from

the reports and logs submitted by broadcast stations as required
Only Ejercito filed a Verified Motion for Reconsideration before
by the Fair Election Act. According to the 99-page Daily
the COMELEC En Banc.  After the parties’ exchange of
26

Operations Log for Channel 2 submitted by ABS-CBN covering

pleadings,  the Resolution of the COMELEC First Division was
27

the period of [April 27, 2013] to [May 11, 2013], [Ejercito’s] 3.5-
unanimously affirmed on May 21, 2014.
minute or 210-second advertisement was aired seven (7) times.
The COMELEC En Bancagreed with the findings of its First
Division that San Luis’ petition is an action to disqualify Ejercito,
reasoning that:
x x x First, the title of the petition indicating that it is a petition for
disqualification clearly expresses the objective of the action.
Second, it is manifest from the language of the petition that the
causes of action have relied primarily on Section 68 (a) and (c) of
the OEC[,] which are grounds for disqualification x x x. Third,
notwithstanding that the relief portion of the petition sounded
vague in its prayer for the disqualification of Ejercito, the
allegations and arguments set forth therein are obviously geared
towards seeking his disqualification for having committed acts
listed as grounds for disqualification in Section 68 of OEC. Lastly,
as correctly observed by the COMELEC First Division, San Luis’
Memorandum addresses and clarifies the intention of the petition
when it prayed for Ejercito to "be disqualified and prevented from
holding office as Governor of Laguna." While there is a
prayerseeking that Ejercito be held accountable for having
committed election offenses, there can be no doubt that the
petition was primarily for his disqualification.
Section 68 of the OEC expressly grants COMELEC the power to
take cognizance of an action or protest seeking the
disqualification of a candidate who has committed any of the acts
listed therein from continuing as one, or if he or she has been
elected, from holding office. One ground for disqualification listed
in Section 68 is spending in an election campaign an amount in
excess of that allowed by law. It is exactly on said ground that
San Luis is seeking the disqualification of Ejercito. The jurisdiction
of COMELEC over the petition, therefore, is clear. 28
The alleged violation of Ejercito’s constitutional right to due
process was also not sustained: Ejercito insists that he was
deprived of his right to notice and hearing and was not informed
of the true nature of the case filed against him when San Luis
was allegedly allowed in his memorandum to make as substantial
amendment in the reliefs prayed for in his petition. San Luis was
allegedly allowed to seek for Ejercito’s disqualification instead of
the filing of an election offense against him.
As discussed above, the allegations in the petition, particularly
the causes of action, clearly show that it is not merely a complaint
for an election offense but a disqualification case against Ejercito
as well. San Luis’ memorandum merely amplified and clarified the
allegations and arguments in his petition. There was no change in
the cause or causes of action. Ejercito[,] therefore, cannot claim
that he was not aware of the true nature of the petition filed
against him.
Likewise, Ejercito cannot complainthat he was deprived of his
right to notice and hearing. He cannot feign ignorance that the
COMELEC First Division, throughout the trial, was hearing the
petition as a disqualification case and not as an election offense
case. He was served with Summons with Notice of Conference
on [June 4, 2013] and was given a copy of the petition. He
likewise submitted to the jurisdiction of the Commission when he
filed his Verified Answer. He also participated in the Preliminary
Conference on [June 27, 2013] wherein he examined evidence
on record and presented his own documentary exhibits. Lastly, he
filed a Manifestation (in lieu of Memorandum) incorporating all his
allegations and defenses.
Ejercito contends that amending the reliefs prayed for is
prohibited under Section 2, Rule 9 of the 1993 COMELEC Rules
of Procedure. He asserts that the relief prayed for in the
memorandum is not the same as that in the petition. However, a
scrutiny of said amendment shows that no new issues were
introduced. Moreover, there was no departure from the causes of
action and no material alterations on the grounds of relief. The
amendment[,] therefore[,] is not substantial as it merely rectifies
or corrects the true nature of reliefs being prayed for as set forth
in the petition. The records of the case will show that Ejercito has
been afforded the opportunity to contest and rebut all the
allegations against him. He was never deprived of his right to
have access to the evidence against him. He was adequately
aware of the nature and implication of the disqualification case
against him. Thus, Ejercito cannot say that he was denied of his
constitutional right to due process.
It is important to note at this point that Ejercito, in his motion for
reconsideration, deliberately did not tackle the merit and
substance of the charges against him. He limited himself to
raising procedural issues. This is despite all the opportunity that
he was given to confront the evidence lodged against him.
Therefore, there is no reason for the COMELEC En Bancto
disturb the findings of the COMELEC First Division on whether
Ejercito indeed over-spent in his campaign for governorship of
Laguna in the [May 13, 2013] National and Local Elections. 29
Anchoring on the case of Lanot v. Commission on Elections,  the 30
COMELEC En Banclikewise debunked Ejercito’s assertion that
the petition was prematurely and improperly filed on the ground
that the filing of an election offense and the factual determination
on the existence of probable cause are required before a
disqualification case based on Section 68 of the OEC may
proceed. It held:
As discussed in the case of Lanot vs. Comelec, each of the acts
listed as ground for disqualification under Section 68 of the OEC
has two aspects – electoral and criminal which may proceed
independently from each other, to wit:
x x x The electoral aspect of a disqualification case determines
whether the offender should be disqualified from being a
candidate or from holding office. Proceedings are summary in
character and require only clear preponderance of evidence. An
erring candidate may be disqualified even without prior
determination of probable cause in a preliminary investigation.
The electoral aspect may proceed independently of the criminal
aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether
there is probable cause to charge a candidate for an election
offense. The prosecutor is the COMELEC, through its Law
Department, which determines whether probable cause exists. If
there is probable cause, the COMELEC, through its Law
Department, files the criminal information before the proper court.
Proceedings before the proper court demand a full-blown hearing
and require proof beyond reasonable doubt to convict. A criminal
conviction shall result in the disqualification of the offender, which
may even include disqualification from holding a future public
office." (Emphasis supplied) 31
The petition for disqualification against Ejercito for campaign
over-spending before the Commission isheard and resolved
pursuant to the electoral aspect of Section 68 of the OEC. It is an
administrative proceeding separate and distinct from the criminal
proceeding through which Ejercito may be made to undergo in
order to determine whether he can be held criminally liable for the
same act of over-spending. It is through this administrative
proceeding that this Commission, initially through its divisions,
makes a factual determination on the veracity of the parties’
respective allegations in a disqualification case. There is no need
for a preliminary investigation finding on the criminal aspect of the
offenses in Section 68 before the Commission can act on the
administrative or electoral aspect of the offense. All that is
needed is a complaint or a petition. As enunciated in Lanot, "(a)n
erring candidate may be disqualified even without prior
determination of probable cause in a preliminary investigation.
The electoral aspect may proceed independently of the criminal
aspect, and vice-versa."
Moreover, Ejercito’s reliance on Codilla is misplaced. The
COMELEC En Banc opined that the portion of the Codilla
decision that referred to the necessity of the conduct of
preliminary investigation pertains to cases where the offenders
are charged with acts not covered by Section 68 of the OEC, and
are, therefore, beyond the ambit of the COMELEC’s jurisdiction. It
said that the decision refers to this type of cases as criminal (not
administrative) in nature, and,thus, should be handled through the
criminal process.
Further rejected was Ejercito’s argument that the COMELEC lost
its jurisdiction over the petition for disqualification the moment he
was proclaimed as the duly-elected Governor of Laguna. For the
COMELEC En Banc, its First Division thoroughly and sufficiently
addressed the matter when it relied on Maquiling instead of
Sinaca. It maintained that Section 5 of COMELEC Resolution No.
9523, not COMELEC Resolution No. 2050,  is relevant to the
32
instant case as it states that the COMELEC shall continue the
trial and hearing of a pending disqualification case despite the
proclamation of a winner. It was noted that the proper application
of COMELEC Resolution No. 2050 was already clarified in Sunga
v. COMELEC. 33
Finally, the COMELEC En Bancruled on one of San Luis’
contentions in his Comment/Oppositionto Ejercito’s motion for
reconsideration. He argued that he becomes the winner in the
gubernatorial election upon the disqualification of Ejercito.
Relying on Maquiling, San Luis declared that he was not the
second placer as he obtained the highest number of valid votes
cast from among the qualified candidates. In denying that
Maquiling is on all fours with this case, the COMELEC En
Bancsaid:
In the instant case, Ejercito cannot be considered as a
noncandidate by reason of his disqualification under Section 68 of
the OEC. He was a candidate who filed a valid certificate of
candidacy which was never cancelled.
Ejercito was a bona fide candidate who was disqualified, not
because of any ineligibility existing at the time of the filing of the
certificate of candidacy, but because he violated the rules of
candidacy. His disqualifying circumstance, thatis, his having over-
spent in his campaign, did not exist at the time of the filing of his
certificate of candidacy. It did not affect the validity of the votes
cast in his favor. Notwithstanding his disqualification, he remains
the candidate who garnered the highest number of votes.
Ejercito cannot be on the same footing with Arnado in the
Maquiling case. Arnado was disqualified from running for Mayor
of Kauswagan, Lanao Del Sur because he was a dual citizen not
qualified to run for election. His disqualification existed at the time
of the filing of the certificate of candidacy. The effect, pursuant to
the Maquiling case, is that the votes he garnered are void, which
in turn resulted in having considered the "second placer" –
Maquiling – asthe candidate who obtained the highest number of
valid votes cast.
San Luis is in a different circumstance. The votes for the
disqualified winning candidate remained valid. Ergo, San Luis,
being the second placer in the vote count, remains the second
placer. He cannot[,] thus[,] be named the winner.
Section 6, Rule 25 of the COMELEC Resolution No. 9523, which
governs Section 68 petitions for disqualification, enunciates the
rule succinctly, to wit:
Section 6. Effect of Granting of Petition.– In the event a Petition to
disqualify a candidate is granted by final judgment as defined
under Section 8 of Rule 23 and the disqualified candidate obtains
the highest number of votes, the candidate with the second
highest number of votes cannot be proclaimed and the rule of
succession, if allowed by law, shall be observed. In the event the
rule of succession is not allowed, a vacancy shall exist for such
position.34
On May 23, 2014, Ejercito filed before this Court a Petition for
certiorari with application for the issuance of a status quo ante
order or temporary restraining order (TRO)/writ of preliminary
injunction (WPI).  Without issuing a TRO/WPI, the Honorable
35
Chief Justice, Maria Lourdes P. A. Sereno, issued on May 28,
2014 an order to respondents to comment on the petition within a
non-extendible period of ten (10) days from notice.  Such order
36
was confirmed nunc pro tunc by the Court En Bancon June 3,
2014. 37
Meantime, on May 26, 2014, Ejercito filed before the COMELEC
En Bancan Omnibus Motion to suspend proceedings and to defer
the implementation of the May 21, 2014 Resolution.  On the 38
same day, San Luis also filed an Extremely Urgent Motion to
Declare COMELEC En Banc Resolution of May 21, 2014 and
First Division Resolution of September 26, 2013 Final and
Executory and to Issue Forthwith Writ of Execution or
Implementing Order  invoking Paragraph 2, Section 8 of
39
COMELEC Resolution No. 9523, in relation to Section 13 (b),
Rule 18 of the COMELEC Rules of Procedure.  On May 27,
40
2014, the COMELEC En Bancissued an Order denying Ejercito’s
omnibus motion, granted San Luis’ extremely urgent motion, and
directedthe Clerk of the Commission to issue the corresponding
writ of execution.  On even date, Vice-Governor Hernandez was
41
sworn in as the Governor of Laguna at the COMELEC Main
Office in Manila. The service of the writ was deemed completed
and validly served upon Ejercito on May 28, 2014. 42
In his petition before Us, Ejercito raised the following issues for
resolution:
THE COMMISSION COMMITTED GRAVE ABUSE OF
DISCRETION IN THAT:
(I) IT VIOLATED THE RIGHT OF PETITIONER
TO DUE PROCESS WHEN IT RULED FOR THE
DISQUALIFICATION OF PETITIONER EVEN IF
IT WAS NEVER PRAYED FOR IN THE
PETITION. WORSE, THERE IS YET NO
FINDING OFGUILT BY A COMPETENT COURT
OR A FINDING OF FACT STATING THAT
PETITIONER ACTUALLY COMMITTED THE
ALLEGED ELECTION OFFENSE OF
OVERSPENDING;
(II) IT RELIED ON A DOCUMENTARY EXHIBIT
(ADVERTISING CONTRACT) WHICH WAS NOT
EVEN FORMALLY OFFERED AS EVIDENCE;
[AND]
(III) IT DISQUALIFIED PETITIONER FOR AN
ACT DONE BY A THIRD PARTY WHO SIMPLY
EXERCISED ITS RIGHT TO FREE
EXPRESSION WITHOUT THE KNOWLEDGE
AND CONSENT OF PETITIONER[.] 43
The petition is unmeritorious.
A special civil action for certiorari under Rule 64, in relation to
Rule 65, is an independent action that is available only if there is
no appeal or any other plain, speedy, and adequate remedy in
the ordinary course of law.  It is a legal remedy that is limited to
44
the resolution of jurisdictional issues and is not meant to correct
simple errors of judgment.  More importantly, it will only prosper if
45
grave abuse of discretion is alleged and isactually proved to
exist.
46
Grave abuse of discretion arises when a lower court or tribunal
violates the Constitution, the law or existing jurisprudence. It
means such capricious and whimsical exercise of judgment as
would amount to lack of jurisdiction; it contemplates a situation
where the power is exercised in an arbitrary or despotic manner
by reason of passion or personal hostility, so patent and gross as
to amount to an evasion of positive duty or a virtual refusal to
perform the duty enjoined by law. x x x. 47
Ejercito failed to prove that the COMELEC rendered its assailed
Resolution with grave abuse of discretion.
We now explain.
The petition filed by San Luis
against Ejercito is for the
latter’s disqualification and
prosecution for election offense
Ejercito insists that his alleged acts of giving material
consideration in the form of "Orange Cards" and election
overspending are considered as election offenses under Section
35 of COMELEC Resolution No. 9615,  in relation to Section
48
13  of R.A. No. 9006, and punishable under Section 264  of the
49 50
OEC. Considering that San Luis’ petition partakes of the nature of
a complaint for election offenses, the COMELEC First Division
has no jurisdiction over the same based on COMELEC
Resolution No. 9386  and Section 265  of the OEC.
51 52
Still, Ejercito contends that the COMELEC erroneously
sanctioned a change in San Luis’ cause of action by the mere
expedient of changing the prayer in the latter’s Memorandum.
According to him, San Luis’ additional prayer for disqualification in
the Memorandum is a substantial amendment to the Petitionas it
constitutes a material deviation from the original cause of action –
from a complaint for election offenses to a petition for
disqualification. Since such substantial amendment was effected
after the case was set for hearing, Ejercito maintains that the
same should have been allowed only with prior leave of the
COMELEC First Division pursuant to Section 2, Rule 9  of the
53
COMELEC Rules of Procedure, which San Luis never did.
The arguments are untenable.
The purpose of a disqualification proceeding is to prevent the
candidate from running or, if elected, from serving, or to
prosecute him for violation of the election laws.  A petition to
54
disqualifya candidate may be filed pursuant to Section 68 of the
OEC, which states:
SEC. 68. Disqualifications.-- Any candidate who, in an action or
protest in which he is a party is declared by final decision of a
competent court guilty of, or found by the Commission of having:
(a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral
functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Sections 89, 95, 96, 97
and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent
resident of or animmigrant to a foreign country shall not be
qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant
of a foreign country in accordance with the residence requirement
provided for in the election laws.
The prohibited acts covered by Section 68 (e) refer to election
campaign or partisan political activityoutside the campaign period
(Section 80); removal, destruction or defacement of lawful
election propaganda (Section 83); certain forms of election
propaganda (Section 85); violation of rules and regulations on
election propaganda through mass media; coercion of
subordinates (Section 261 [d]); threats, intimidation, terrorism,
use of fraudulent device or other forms of coercion (Section 261
[e]); unlawful electioneering (Section 261 [k]); release,
disbursement or expenditure of public funds (Section 261 [v]);
solicitation of votes or undertaking any propaganda on the day of
the election within the restricted areas (Section 261 [cc], sub-
par.6). All the offenses mentioned in Section 68 refer to election
offenses under the OEC, not toviolations of other penal laws. In
other words, offenses that are punished in laws other than in the
OEC cannot be a ground for a Section 68 petition. Thus, We have
held:
x x x [T]he jurisdiction of the COMELEC to disqualify candidates
is limited to those enumerated in Section 68 of the [OEC]. All
other election offenses are beyond the ambit of COMELEC
jurisdiction. They are criminal and not administrative in nature.
Pursuant to Sections 265 and 268 of the [OEC], the power of the
COMELEC is confined to the conduct of preliminary investigation
on the alleged election offenses for the purpose of prosecuting
the alleged offenders before the regular courts of justice, viz:
"Section 265. Prosecution. – The Commission shall, through its
duly authorized legal officers, have the exclusive power to
conduct preliminary investigation of all election offenses
punishable under this Code, and to prosecute the same. The
Commission may avail of the assistance of other prosecuting
arms of the government: Provided, however, That in the event
that the Commission fails to act on any complaint within four
months from its filing, the complainant may file the complaint with
the office of the fiscal or with the Ministry of Justice for proper
investigation and prosecution, if warranted.
x x x           x x x          x x x
Section 268. Jurisdiction. – The regional trial court shall have the
exclusive original jurisdiction to try and decide any criminal action
orproceeding for violation of this Code, except those relating to
the offense of failure to register or failure to vote which shall be
under the jurisdictions of metropolitan or municipal trial courts.
From the decision of the courts, appeal will lie as in other criminal
cases."55
In the case at bar, the COMELEC First Division and COMELEC
En Banc correctly ruled that the petition filed by San Luis against
Ejercito is not just for prosecution of election offense but for
disqualification as well. Indeed, the following are clear indications:
1. The title of San Luis’ petition shows that the case was
brought under Rule 25 of the COMELEC Rules of
Procedure, as amended by COMELEC Resolution No.
9523.  This expresses the objective of the action since
56
Rule 25 is the specific rule governing the disqualification
of candidates.
2. The averments of San Luis’ petition rely on Section 68
(a) and (c) of the OEC as grounds for its causes of action.
Section 68 of the OEC precisely enumerates the grounds
for the disqualification of a candidate for elective position
and provides, as penalty, that the candidate shall be
disqualified from continuing as such, or if he or she has
been elected, from holding the office.
3. Paragraph 2 of San Luis’ prayer in the petition states
that "[in the event that [Ejercito] will be ableto get a
majority vote of the electorate of the Province of Laguna
on May 13, 2013, his proclamation be suspended until
further order of the Honorable Commission." San Luis
reiterated this plea when he later filed a Very Urgent Ex-
Parte Motion toIssue Suspension of Possible
Proclamation of Respondent and Supplemental to the
Very Urgent Ex-Parte Motion to Issue Suspension of
Possible Proclamation of Respondent. The relief sought is
actually pursuant to Section 6  of R.A. No. 6646 and
57
Section 5 Rule 25  of COMELEC Resolution No. 9523,
58
both of which pertain to the effect of a disqualification
case when the petition is unresolved by final judgment
come election day.
4. San Luis’ Memorandum emphasized that the case is a
"Special Action for Disqualification," praying that "[t]he
Petition BE GRANTED [and] x x x [Ejercito] BE
DISQUALIFIED, and PREVENTED from further holding
office as Governor of Laguna."
With the foregoing, Ejercito cannot feign ignorance of the true
nature and intent of San Luis’ petition. This considering, it is
unnecessary for Us to discuss the applicability of Section 2,Rule
9 of the COMELEC Rules of Procedure, there being no
substantial amendment to San Luis’ petition that constitutes a
material deviation from his original causes of action. Likewise,
COMELEC Resolution No. 9386 and Section 265 of the OEC do
not apply since both refer solely to the prosecution of election
offenses. Specifically, COMELEC Resolution No. 9386 is an
amendment to Rule 34 of the COMELEC Rules of Procedure on
the prosecution of election offenses, while Section 265 of the
OEC is found under Article XXII of said law pertaining also to
election offenses.
The conduct of preliminary
investigation is not required in
the resolution of the electoral
aspect of a disqualification case
Assuming, arguendo, that San Luis’ petition was properly
instituted as an action for disqualification, Ejercito asserts that the
conduct of preliminary investigation to determine whether the acts
enumerated under Section 68 of the OEC were indeed committed
is a requirement prior to actual disqualification. He posits that
Section 5, Rule 25 of COMELEC Resolution No. 9523 is silent on
the matter of preliminary investigation; hence, the clear import of
this is that the necessity of preliminary investigation provided for
in COMELEC Resolution No. 2050 remains undisturbed and
continues to bein full force and effect.
We are not persuaded.
Section 5, Rule 25 of COMELEC Resolution No. 9523 states:
Section 5. Effect of Petition if Unresolved Before Completion of
Canvass.– If a Petition for Disqualification is unresolved by final
judgment on the day of elections, the petitioner may file a motion
with the Division or Commission En Banc where the case is
pending, to suspend the proclamation of the candidate
concerned, provided that the evidence for the grounds to
disqualify is strong. For this purpose, atleast three (3) days prior
to any election, the Clerk of the Commission shall prepare a list of
pending cases and furnish all Commissioners copies of said the
list.
In the event that a candidate with an existing and pending Petition
to disqualify is proclaimed winner, the Commission shall continue
to resolve the said Petition.
It is expected that COMELEC Resolution No. 9523 is silent on the
conduct of preliminary investigation because it merely amended,
among others, Rule 25 of the COMELEC Rules of Procedure,
which deals with disqualification of candidates. In disqualification
cases, the COMELEC may designate any of its officials, who are
members of the Philippine Bar, to hear the case and to receive
evidence only in cases involving barangay officials.  As
59
aforementioned, the present rules of procedure in the
investigation and prosecution of election offenses in the
COMELEC, which requires preliminary investigation, is governed
by COMELEC Resolution No. 9386. Under said Resolution, all
lawyers in the COMELEC who are Election Officers in the
National Capital Region ("NCR"), Provincial Election Supervisors,
Regional Election Attorneys, Assistant Regional Election
Directors, Regional Election Directors and lawyers of the Law
Department are authorized to conduct preliminary investigation of
complaints involving election offenses under the election
lawswhich may be filed directly with them, or which may be
indorsed to them by the COMELEC. 60
Similarly, Ejercito’s reliance on COMELEC Resolution No. 2050 is
misplaced. COMELEC Resolution No. 2050, which was adopted
on November 3, 1988, reads:
WHEREAS, there remain pending before the Commission, a
number of cases of disqualification filed by virtue of the provisions
of Section 68 of the Omnibus Election Codein relation to Section
6 of R.A. 6646, otherwise known as the Electoral Reforms Law of
1987;
WHEREAS, opinions of the members of the Commission on
matters of procedure in dealing with cases of this nature and the
manner of disposing of the same have not been uniform;
WHEREAS, in order to avoid conflicts of opinion in the disposition
[of] disqualification cases contemplated under Section 68 of the
Omnibus Election Code in relation to Section 6 of Rep. Act 6646,
there is a strongly felt need to lay down a definite policy in the
disposition of this specific class of disqualification cases;
NOW, THEREFORE, on motion duly seconded, the Commission
en banc:
RESOLVED, as it hereby resolves, to formulate the following
rules governing the disposition of cases of disqualification filed by
virtue of Section 68 of the Omnibus Election Code in relation to
Section 6 of R.A. No. 6646, otherwise known as the Electoral
Reforms Law of 1987:
1. Any complaint for the disqualification of a duly registered
candidate based upon any of the grounds specifically enumerated
under Section 68 of the Omnibus Election Code, filed directly with
the Commission before an election in which the respondent is a
candidate, shall be inquired into by the Commission for the
purpose of determining whether the acts complained of have in
fact been committed. Where the inquiry by the Commission
results in a finding before election, that the respondent candidate
did in factcommit the acts complained, the Commission shall
order the disqualification of the respondent candidate from
continuing as such candidate.
In case such complaint was not resolved before the election, the
Commission may motu proprio, or [on] motion of any of the
parties, refer the complaint to the [Law] Department of the
Commission as the instrument of the latter in the exercise of its
exclusive power to conduct a preliminary investigation of all cases
involving criminal infractions of the election laws. Such recourse
may be availed of irrespective of whether the respondent has
been elected orhas lost in the election.
2. Any complaint for disqualification based on Section 68 of the
Omnibus Election Code in relation to Section 6 of Rep. Act No.
6646 filed after the election against a candidate who has already
been proclaimed as winner shall be dismissed as a
disqualification case. However, the complaint shall be referred for
preliminary investigation to the Law Department of the
Commission.
Where a similar complaint is filed after election but before
proclamation of the respondent candidate, the complaint shall,
nevertheless, be dismissed as a disqualification case. However,
the complaint shall be referred for preliminary investigation to the
Law Department. If, before proclamation, the Law Department
makes a prima faciefinding of guilt and the corresponding
information has been filed with the appropriate trial court, the
complainant may file a petition for suspension of the proclamation
of the respondent with the court before which the criminal case is
pending and the said court may order the suspension of the
proclamation ifthe evidence of guilt is strong.
3. The Law Department shall terminate the preliminary
investigation within thirty(30) days from receipt of the referral and
shall submit its study, report and recommendation to the
Commission en banc within five (5) days from the conclusion of
the preliminary investigation. If it makes a prima faciefinding of
guilt, it shall submit with such study the Information for filing with
the appropriate court. 61
In Bagatsing v. COMELEC,  the Court stated that the above-
62
quoted resolution covers two (2) different scenarios:
First, as contemplated in paragraph 1, a complaint for
disqualification filed before the election which must be inquired
into by the COMELEC for the purpose of determining whether the
acts complained of have in fact been committed. Where the
inquiry results in a finding before the election, the COMELEC
shall order the candidate's disqualification. In case the complaint
was not resolved before the election, the COMELEC may motu
propioor on motion of any of the parties, refer the said complaint
to the Law Department of the COMELEC for preliminary
investigation.
Second, as laid down in paragraph 2, a complaint for
disqualification filed after the election against a candidate (a) who
has not yet been proclaimed as winner, or (b) who has already
been proclaimed as winner. In both cases, the complaint shall be
dismissed as a disqualification case but shall be referred to the
Law Department of the COMELEC for preliminary investigation.
However, if before proclamation, the Law Department makes a
prima facie finding of guilt and the corresponding information has
been filed with the appropriate trial court, the complainant may file
a petition for suspension of the proclamation of the respondent
with the court before which the criminal case is pending and the
said court may order the suspension of the proclamation if the
evidence of guilt is strong.
63
However, with respect to Paragraph 1 of COMELEC Resolution
No. 2050, which is the situation in this case, We held in Sunga:
x x x Resolution No. 2050 as interpreted in Silvestre v.
Duavitinfringes on Sec. 6 of RA No. 6646, which provides:
SEC. 6. Effects of Disqualification Case. - Any candidate who has
been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for
any reason a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action,
inquiry or protestand, upon motion of the complainant or any
intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong (italics supplied).
Clearly, the legislative intentis that the COMELEC should
continue the trial and hearing of the disqualification case to its
conclusion, i.e.,until judgment is rendered thereon. The word
"shall" signifies that this requirement of the law is mandatory,
operating to impose a positive duty which must be enforced. The
implication is that the COMELEC is left with no discretion but to
proceed with the disqualification case even after the election.
Thus, in providing for the outright dismissal of the disqualification
case which remains unresolved after the election, Silvestre v.
Duavitin effect disallows what RA No. 6646 imperatively requires.
This amounts to a quasi-judicial legislation by the COMELEC
which cannot be countenanced and is invalid for having been
issued beyond the scope of its authority. Interpretative rulings of
quasi-judicial bodies or administrative agencies must always be in
perfect harmony with statutes and should be for the sole purpose
of carrying their general provisions into effect. By such
interpretative or administrative rulings, of course, the scope of the
law itself cannot be limited. Indeed, a quasi-judicial body or an
administrative agency for that matter cannot amend an act of
Congress. Hence, in case of a discrepancy between the basic law
and an interpretative or administrative ruling, the basic law
prevails.
Besides, the deleterious effect of the Silvestre ruling is not difficult
to foresee. A candidate guilty of election offenses would be
undeservedly rewarded, instead of punished, by the dismissal of
the disqualification case against him simply because the
investigating body was unable, for any reason caused upon it, to
determine before the election if the offenses were indeed
committed by the candidate sought to be disqualified. All that the
erring aspirant would need to do is toemploy delaying tactics so
that the disqualification case based on the commission of election
offenses would not be decided before the election. This scenario
is productive of more fraud which certainly is not the main intent
and purpose of the law. 64
The "exclusive power [of the COMELEC] to conduct a preliminary
investigation of all cases involving criminal infractions of the
election laws" stated in Par. 1 of COMELEC Resolution No. 2050
pertains to the criminal aspect of a disqualification case. It has
been repeatedly underscored that an election offense has its
criminal and electoral aspects. While its criminal aspect to
determine the guilt or innocence of the accused cannot be the
subject of summary hearing, its electoral aspect to ascertain
whether the offender should be disqualified from office can be
determined in an administrative proceeding that is summaryin
character. This Court said in Sunga:
It is worth to note that an election offense has criminal as well as
electoral aspects. Its criminal aspect involves the ascertainment
of the guilt or innocence of the accused candidate. Like in any
other criminal case, it usually entails a full-blown hearing and the
quantum of proof required to secure a conviction is beyond
reasonable doubt. Its electoral aspect, on the other hand, is a
determination of whether the offender should be disqualified from
office. This is done through an administrative proceeding which is
summary in character and requires only a clear preponderance of
evidence. Thus, under Sec. 4 of the COMELEC Rules of
Procedure, petitions for disqualification "shall be heard summarily
after due notice." It is the electoral aspect that we are more
concerned with, under which an erring candidate may be
disqualified even without prior criminal conviction.
65
and equally in Lanot:
x x x The electoral aspect of a disqualification case determines
whether the offender should be disqualified from being a
candidate or from holding office. Proceedings are summary in
character and require only clear preponderance of evidence. An
erring candidate may be disqualified even without prior
determination of probable cause in a preliminary investigation.
The electoral aspect may proceed independently of the criminal
aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether
there is probable cause to charge a candidate for an election
offense. The prosecutor is the COMELEC, through its Law
Department, which determines whether probable cause exists. If
there is probable cause, the COMELEC, through its Law
Department, files the criminal information before the proper court.
Proceedings before the proper court demand a full-blown hearing
and require proof beyond reasonable doubt to convict. A criminal
conviction shall result in the disqualification of the offender, which
may even include disqualification from holding a future public
office.
The two aspects account for the variance of the rules on
disposition and resolution of disqualification cases filed before or
after an election. When the disqualification case is filed before the
elections, the question of disqualification is raised before the
voting public. If the candidate is disqualified after the election,
those who voted for him assume the risk that their votes may be
declared stray or invalid. There isno such risk if the petition is filed
after the elections. x x x.
66
We cannot accept Ejercito’s argument that Lanot did not
categorically pronounce that the conduct of a preliminary
investigation exclusively pertains to the criminal aspect of
anaction for disqualification or that a factual finding by the
authorized legal officers of the COMELEC may be dispensed with
in the proceedings for the administrative aspect of a
disqualification case. According to him,a close reading of said
case would reveal that upon filing of the petition for
disqualification with the COMELEC Division, the latter referred
the matter to the Regional Election Director for the purpose of
preliminary investigation; therefore, Lanot contemplates two
referrals for the conduct of investigation – first, to the Regional
Election Director, prior to the issuance of the COMELEC First
Division’s resolution, and second, to the Law Department,
following the reversal by the COMELEC En Banc.
For easy reference, the factual antecedents of Lanot are as
follows:
On March 19, 2004, a little less than two months before the May
10, 2004 elections, Henry P. Lanot, et al. filed a Petition for
Disqualification under Sections 68 and 80 of the OEC against
then incumbent Pasig City Mayor Vicente P. Eusebio. National
Capital Region Director Esmeralda Amora-Ladra conducted
hearings on the petition. On May 4, 2004, she recommended
Eusebio’s disqualification and the referral of the case to the
COMELEC Law Department for the conduct of a preliminary
investigation on the possible violation of Section 261 (a) of the
OEC. When the COMELEC First Division issued a resolution
adopting Director Ladra’s recommendations on May 5, 2004, then
COMELEC Chairman Benjamin S. Abalos informed the pertinent
election officers through an Advisory dated May 8, 2004. Eusebio
filed a Motion for Reconsideration on May 9, 2004. On election
day, Chairman Abalos issued a memorandum to Director Ladra
enjoining her from implementing the May 5, 2004 COMELEC First
Division resolution. The petition for disqualification was not yet
finally resolved at the time of the elections. Eusebio's votes were
counted and canvassed. After which, Eusebio was proclaimed as
the winning candidate for city mayor. On August 20, 2004, the
COMELEC En Banc annulled the COMELEC First Division's
order to disqualify Eusebio and referred the case to the
COMELEC Law Department for preliminary investigation.
When the issue was elevated to Us, the Court agreed with Lanot
that the COMELEC En Banc committed grave abuse of discretion
when it ordered the dismissal of the disqualification case pending
preliminary investigation of the COMELEC Law Department. Error
was made when it ignored the electoral aspect of the
disqualification case by setting aside the COMELEC First
Division's resolution and referring the entire case to the
COMELEC Law Department for the criminal aspect. We noted
that COMELEC Resolution No. 2050, upon which the COMELEC
En Banc based its ruling, is procedurally inconsistent with
COMELEC Resolution No. 6452, which was the governing rule at
the time. The latter resolution delegated to the COMELEC Field
Officials the hearing and reception of evidence of the
administrative aspect of disqualification cases in the May 10,
2004 National and Local Elections. In marked contrast, in the May
2013 elections, it was only in cases involving barangay officials
that the COMELEC may designate any of its officials, who are
members of the Philippine Bar, to hear the case and to receive
evidence. 67
The COMELEC En Banc
properly considered as
evidence the Advertising
Contract dated May 8, 2013
Ejercito likewise asserts that the Advertising Contract dated May
8, 2013 should not have been relied upon by the COMELEC.
First, it was not formally offered in evidence pursuant to Section
34, Rule 132  of the Rules and he was not even furnished with a
68
copy thereof, depriving him of the opportunity to examine its
authenticity and due execution and object to its admissibility.
Second, even if Section 34, Rule 132 does not apply,
administrative bodies exercising quasi-judicial functions are
nonetheless proscribed from rendering judgment based on
evidence that was never presented and could not be
controverted. There is a need to balance the relaxation of the
rules of procedure with the demands of administrative due
process, the tenets of which are laid down in the seminal case of
Ang Tibay v. Court of Industrial Relations.  And third,the
69
presentation of the advertising contracts, which are highly
disputable and on which no hearing was held for the purpose of
taking judicial notice in accordance with Section 3, Rule 129  of
70
the Rules, cannot be dispensed with by COMELEC’s claim that it
could take judicial notice. Contrary to Ejercito’s claim, Section 34,
Rule 132 of the Rules is inapplicable. Section 4, Rule 1  of the
71
Rules of Court is clear enough in stating that it shall not apply to
election cases except by analogy or in a suppletory character and
whenever practicable and convenient. In fact, nowhere from
COMELEC Resolution No. 9523 requires that documentary
evidence should be formally offered in evidence.  We remind
72
again that the electoral aspect of a disqualification case is done
through an administrative proceeding which is summary in
character.
Granting, for argument’s sake, that Section 4, Rule 1 of the Rules
of Court applies, there have been instances when We suspended
the strict application of the rule in the interest of substantial
justice, fairness, and equity.  Since rules of procedure are mere
73
tools designed to facilitate the attainment of justice, it is well
recognized that the Court is empowered to suspend its rules or to
exempt a particular case from the application of a general rule,
when the rigid application thereof tends to frustrate rather than
promote the ends of justice.  The fact is, even Sections 3 and 4,
74
Rule 1 of the COMELEC Rules of Procedure fittingly declare that
"[the] rules shall be liberally construed in order to promote the
effective and efficient implementation of the objectives of
ensuring the holding of free, orderly, honest, peaceful and
credible elections and to achieve just, expeditious and
inexpensive determination and disposition of every action and
proceeding brought before the Commission" and that "[in] the
interest of justice and in order to obtain speedy disposition ofall
matters pending before the Commission, these rules or any
portion thereof may be suspended by the Commission." This
Court said in Hayudini v. Commission on Elections: 75
Settled is the rule that the COMELEC Rules of Procedure are
subject to liberal construction. The COMELEC has the power to
liberally interpret or even suspend its rules of procedure in the
interest of justice, including obtaining a speedy disposition of all
matters pending before it. This liberality is for the purpose of
promoting the effective and efficient implementation of its
objectives – ensuring the holding of free, orderly, honest,
peaceful, and credible elections, as well as achieving just,
expeditious, and inexpensive determination and disposition of
every action and proceeding brought before the COMELEC.
Unlike an ordinary civil action, an election contest is imbued with
public interest. It involves not only the adjudication of private and
pecuniary interests of rival candidates, but also the paramount
need of dispelling the uncertainty which beclouds the real choice
of the electorate. And the tribunal has the corresponding duty to
ascertain, by all means withinits command, whom the people truly
chose as their rightful leader.
76
Further, Ejercito’s dependence on Ang Tibay is weak. The
essence of due process is simply an opportunity to be heard, or,
as applied to administrative proceedings, an opportunity to
explain one's side or an opportunity to seek for a reconsideration
of the action or ruling complained of.  Any seeming defect in its
77
observance is cured by the filing of a motion for reconsideration
and denial of due process cannot be successfully invoked by a
party who had the opportunity to be heard thereon.  In this case,
78
it is undisputed that Ejercito filed a motion for reconsideration
before the COMELEC En Banc. Despite this, he did not rebut the
authenticity and due execution of the advertising contracts when
he decided not to discuss the factual findings of the COMELEC
First Division on the alleged ground that it may be construed as a
waiver of the jurisdictional issues that he raised.
79
We agree with San Luis and the Office of the Solicitor General
that, pursuant to Section 2, Rule 129,  the COMELEC has the
80
discretion to properly take judicial notice of the Advertising
Contract dated May 8, 2013. In accordance with R.A. No. 9006,
the COMELEC, through its Campaign Finance Unit, is
empowered to:
a. Monitor fund raising and spending activities;
b. Receive and keep reports and statements of
candidates, parties, contributors and election contractors,
and advertising contracts of mass media entities;
c. Compile and analyze the reports and statements as
soon as they are received and make an initial
determination of compliance;
 d. Develop and manage a recording system for all reports,
statements, and contracts received by it and todigitize
information contained therein;
e. Publish the digitized information gathered from the
reports, statements and contracts and make
themavailable to the public;
f. Develop a reportorial and monitoring system;
g. Audit all reports, statements and contracts and
determine compliance by the candidates, parties,
contributors, and election contractors, including the
inspection of Books and records of candidates, parties
and mass media entities and issue subpoenas in relation
thereto and submit its findings to the Commission En
Banc;
h. Coordinate with and/or assist other departments/offices
of the Commission receiving related reports on Campaign
Finance including prosecution of violators and collection
of fines and/or imposition of perpetual disqualification;
and
i. Perform other functions as ordered by the Commission.
The COMELEC may properly takeand act on the advertising
contracts without further proof from the parties herein. Aside from
being considered as an admission  and presumed to be proper
82
submissions from them, the COMELEC already has knowledge of
the contracts for being ascertainable from its very own records.
Said contracts are ought to be known by the COMELEC because
of its statutory function as the legal custodian of all advertising
contracts promoting or opposing any candidate during the
campaign period. As what transpired in this case, the COMELEC
has the authority and discretion to compare the submitted
advertising contracts with the certified true copies of the
broadcast logs, certificates of performance or other analogous
records which a broadcast station or entity is required to submit
for the review and verification of the frequency, date, time and
duration of advertisements aired.
To be precise, R.A. No. 9006 provides:
Sec. 4. Requirements for Published or Printed and Broadcast
Election Propaganda. –
xxxx
4.3 Print, broadcast or outdoor advertisements donated to the
candidate or political party shall not be printed, published,
broadcast or exhibited without the written acceptance by the said
candidate or political party. Such written acceptance shall be
attached to the advertising contract and shall be submitted to the
COMELEC as provided in Subsection 6.3 hereof.
Sec. 6. Equal Access to Media Time and Space. – All registered
parties and bona fidecandidates shall have equal access to
media time and space. The following guidelines may be amplified
on by the COMELEC:
81
xxxx
6.2
xxxx
(b.) Each bona fide candidate or registered political party for a
locally elective office shall be entitled to not more than sixty (60)
minutes of television advertisement and ninety (90) minutes of
radio advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast
station or entity to submit to the COMELEC a copy of its
broadcast logs and certificates of performance for the review and
verification of the frequency, date, time and duration of
advertisements broadcast for any candidate or political party.
6.3 All mass media entities shall furnish the COMELEC with a
copy of all contracts for advertising, promoting or opposing any
political party or the candidacy of any person for public office
within five (5) days after its signing. x x x.
The implementing guidelines of the above-quoted provisions are
found in Rule 5 of COMELEC Resolution No. 9476 –
Section 2. Submission of Copies of Advertising Contracts. – All
media entities shall submit a copy of its advertising and or
broadcast contracts, media purchase orders, booking orders, or
other similar documents to the Commission through its Campaign
Finance Unit, accompanied by a summary report in the
prescribed form (Annex "E") together with official receipts issued
for advertising, promoting or opposing a party, or the candidacy of
any person for public office, within five (5) days after its signing,
through:
a. For Media Entities in the NCR The Education
and Information Department (EID), which shall
furnish copies thereof to the Campaign Finance
Unit of the Commission.
b. For Media Entities outside of the NCR The
City/Municipal Election Officer (EO) concerned
who shall furnish copies thereof to the Education
and Information Department of the Commission
within five (5) days after the campaign periods.
The EID shall furnish copies thereof to the
Campaign Finance Unit of the Commission.
xxxx
It shall be the duty of the EID to formally inform media entities
that the latter’s failure to comply with the mandatory provisions of
this Section shall be considered an election offense punishable
pursuant to Section 13 of Republic Act No. 9006. [RA 9006, Secs.
6.3 and 13] and in COMELEC Resolution No. 9615 –
SECTION 9. Requirements and/or Limitations on the Use of
Election Propaganda through Mass Media. – All parties and bona
fide candidates shall have equal access to media time and space
for their election propaganda during the campaign period subject
to the following requirements and/or limitations:
a. Broadcast Election Propaganda
xxx
Provided, further, that a copy of the broadcast advertisement
contract be furnished to the Commission, thru the Education and
Information Department, within five (5) days from contract
signing.
xxx
d. Common requirements/limitations:
xxx
(3) For the above purpose, each broadcast entity and website
owner or administrator shall submit to the Commission a certified
true copy of its broadcast logs, certificates of performance, or
other analogous record, including certificates of acceptance as
required in Section 7(b) of these Guidelines,for the review and
verification of the frequency, date, time and duration of
advertisements aired for any candidate or party through:
For Broadcast Entities in the NCR – The Education and
Information Department (EID) which in turn shall furnish copies
thereof to the Campaign Finance Unit (CFU) of the Commission Report campaign period 22
within five days from receipt thereof.
2nd 1 week after 1st filing April 30 -
Report week May 8
For Broadcast Entities outside of the NCR – The City/Municipal
Election Officer (EO) concerned, who in turn, shall furnish copies 3rd Election week May 9 - 15
thereof to the Education and Information Department (EID) of the Report
Commission which in turn shall furnish copies thereof to the Last 1 week after election May 16 -
Campaign Finance Unit (CFU) of the Commission within five (5) Report day 22
days from the receipt thereof.
For subsequent elections, the schedule for the submission of
For website owners or administrators – The City/Municipal reports shall be prescribed by the Commission.
Election Officer (EO) concerned, who in turn, shall furnish copies
thereof to the Education and Information Department (EID) of the
Ejercito should be disqualified
Commission which in turn shall furnish copies thereof to the
for spending in his election
Campaign Finance Unit (CFU) of the Commission within five (5)
campaign an amount in excess
days from the receipt thereof.
of what is allowed by the OEC
All broadcast entities shall preserve their broadcast logs for a
Ejercito claims that the advertising contracts between ABS-CBN
period of five (5) years from the date of broadcast for submission
Corporation and Scenema Concept International, Inc. were
to the Commission whenever required.
executed by an identified supporter without his knowledge and
consent as, in fact, his signature thereon was obviously forged.
Certified true copies of broadcast logs, certificates of Even assuming that such contract benefited him, Ejercito alleges
performance, and certificates of acceptance, or other analogous that he should not be penalized for the conduct of third parties
record shall be submitted, as follows: who acted on their own without his consent. Citing Citizens
United v. Federal Election Commission  decided by the US
83

Supreme Court, he argues that every voter has the right to

Candidates for 1st 3 weeks after start of March 4 - support a particular candidate in accordance with the free
National Positions
Report campaign period 11 exercise of his or her rights of speech and of expression, which is
guaranteed in Section 4, Article III of the 1987 Constitution.  He
84

Candidates for Local 2nd 3 weeks after 1st filing believes that an advertising contract paid for by a third party
Positions April 3 - 10
Report week without the candidate’s knowledge and consent must be
3rd 1 week before election May 2 - 9 considered a form of political speech that must prevail against the
Report day laws suppressing it, whether by design or inadvertence. Further,
Ejercito advances the view that COMELEC Resolution No.
Last Election week May 14 -
9476  distinguishes between "contribution" and "expenditure" and
85

Report 17
makes no proscription on the medium or amount of
1st 1 week after start of April 15 - contribution.  He also stresses that it is clear from COMELEC
86
Resolution No. 9615 that the limit set by law applies only to
election expenditures of candidates and not to contributions made
by third parties. For Ejercito, the fact that the legislature imposes
no legal limitation on campaign donations is presumably because
discussion of public issues and debate on the qualifications of
candidates are integral to the operation of the government.
We refuse to believe that the advertising contracts between ABS-
CBN Corporation and Scenema Concept International, Inc. were
executed without Ejercito’s knowledge and consent. As found by
the COMELEC First Division, the advertising contracts submitted
in evidence by San Luis as well as those in legal custody of the
COMELEC belie his hollow assertion. His express conformity to
the advertising contracts is actually a must because non-
compliance is consideredas an election offense. 87
Notably, R.A. No. 9006 explicitly directs that broadcast
advertisements donated to the candidate shall not be
broadcasted without the written acceptance of the candidate,
which shall be attached to the advertising contract and shall be
submitted to the COMELEC, and that, in every case, advertising
contracts shall be signed by the donor, the candidate concerned
or by the duly-authorized representative of the political
party.  Conformably with the mandate of the law, COMELEC
88
Resolution No. 9476 requires that election propaganda materials
donated toa candidate shall not be broadcasted unless it is
accompanied by the written acceptance of said candidate, which
shall be in the form of an official receipt in the name of the
candidate and must specify the description of the items donated,
their quantity and value, and that, in every case, the advertising
contracts, media purchase orders or booking orders shall be
signed by the candidate concerned or by the duly authorized
representative of the party and, in case of a donation, should be
accompanied by a written acceptance of the candidate, party or
their authorized representatives.  COMELEC Resolution No.
89
9615 also unambiguously states thatit shall be unlawful to
broadcast any election propaganda donated or given free of
charge by any person or broadcast entity to a candidate
withoutthe written acceptance of the said candidate and unless
they bear and be identified by the words "airtime for this
broadcast was provided free of charge by" followed by the true
and correct name and address of the donor. 90
This Court cannot give weight to Ejercito’s representation that his
signature on the advertising contracts was a forgery. The issue is
a belated claim, raised only for the first time in this petition for
certiorari. It is a rudimentary principle of law that matters neither
alleged in the pleadings nor raised during the proceedings below
cannot be ventilated for the first time on appeal before the
Supreme Court.  It would be offensive to the basic rules of fair
91
play and justice to allow Ejercito to raise an issue that was not
brought up before the COMELEC.  While it is true that litigation is
92
not a game of technicalities, it is equally truethat elementary
considerations of due process require that a party be duly
apprised of a claim against him before judgment may be
rendered. 93
Likewise, whether the advertising contracts were executed
without Ejercito’s knowledge and consent, and whether his
signatures thereto were fraudulent, are issues of fact. Any factual
challenge has no place in a Rule 65 petition. This Court is nota
trier of facts and is not equipped to receive evidence and
determine the truth of factual allegations. 94
Instead, the findings of fact made by the COMELEC, or by any
other administrative agency exercising expertise in its particular
field of competence, are binding on the Court. As enunciated in
Juan v. Commission on Election: 95
Findings of facts of administrative bodies charged with their
specific field of expertise, are afforded great weight by the courts,
and in the absence of substantial showing that such findings are
made from an erroneous estimation of the evidence presented,
they are conclusive, and in the interest of stability of the
governmental structure, should not be disturbed. The COMELEC,
as an administrative agency and a specialized constitutional body
charged with the enforcement and administration of all laws and
regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall, has more than enough expertise
in its field that its findings orconclusions are generally respected
and even given finality. x x x.
96
Having determined that the subject TV advertisements were done
and broadcasted with Ejercito’s consent, it follows that Citizens
United does not apply. In said US case, a non-profit corporation
sued the Federal Election Commission, assailing, among others,
the constitutionality of a ban on corporate independ
entexpenditures for electioneering communications under 2
U.S.C.S. § 441b. The corporation released a documentary film
unfavorable of then-Senator Hillary Clinton, who was a candidate
for the Democratic Party's Presidential nomination. It wanted to
make the film available through video-on-demand withinthirty (30)
days of the primary elections, and it produced advertisements to
promote the film. However, federal law prohibits all corporations –
including non-profit advocacy corporations – from using their
general treasury funds to make independent expenditures for
speech that is an "electioneering communication"  or for speech
97
that expressly advocates the election or defeat of a candidate
within thirty (30) days of a primary election and sixty (60) days of
a general election. The US Supreme Court held that the ban
imposed under § 441b on corporate independent expenditures
violated the First Amendment  because the Government could
98
not suppress political speech on the basis of the speaker's
identity as a non-profit or for-profit corporation. It was opined:
Section 441b's prohibition on corporate independent expenditures
is thus a ban on speech. As a "restriction on the amount of money
a person or group can spend on political communication during a
campaign," that statute "necessarily reduces the quantity of
expression by restricting the number of issues discussed, the
depth of their exploration, and the size of the audience reached."
Buckley v. Valeo, 424 U.S. 1, 19, 96 S. Ct. 612, 46 L. Ed. 2d 659
(1976) (per curiam).Were the Court to uphold these restrictions,
the Government could repress speech by silencing certain voices
at any of the various points in the speech process. See
McConnell, supra, at 251, 124 S. Ct. 619, 517 L. Ed. 2d 491
(opinion of Scalia, J.) (Government could repress speech by
"attacking all levels of the production and dissemination of ideas,"
for "effective public communication requires the speaker to make
use of the services of others"). If §441 be applied to individuals,
no one would believe that it is merely a time, place, or manner
restriction on speech. Its purpose and effect are to silence entities
whose voices the Government deems to be suspect.
Speech is an essential mechanism of democracy, for it is the
means to hold officials accountable to the people. See Buckley,
supra, at 14-15, 96 S. Ct. 612, 46 L. Ed. 2d 659 ("In a republic
where the people are sovereign, the ability of the citizenry to
make informed choices among candidates for office is essential").
The right of citizens to inquire, to hear, to speak, and to use
information to reach consensus is a precondition to enlightened
self-government and a necessary means to protect it. The First
Amendment "'has its fullest and most urgent application' to
speech uttered during a campaign for political office." Eu v. San
Francisco County Democratic Central Comm., 489 U.S. 214, 223,
109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989)(quoting Monitor Patriot
Co. v. Roy, 401 U.S. 265, 272, 91 S. Ct. 621, 28 L. Ed. 2d 35
(1971)); see Buckley, supra, at 14, 96 S. Ct. 612, 46 L. Ed. 2d
659 ("Discussion of public issues and debate on the qualifications
of candidates are integral to the operation of the system of
government established by our Constitution").
For these reasons, political speech must prevail against laws that
would suppress it, whether by design orinadvertence. Laws that
burden political speech are "subject to strict scrutiny," which
requires the Government to prove that the restriction "furthers a
compelling interest and is narrowly tailored to achieve that
interest." WRTL, 551 U.S., at 464, 127 S. Ct. 2652, 168 L. Ed. 2d
329(opinion of Roberts, C. J.). While it might be maintained that
political speech simply cannot be banned or restricted as a
categorical matter, see Simon & Schuster, 502 U.S., at 124, 112
S. Ct. 501, 116 L. Ed. 2d 476(Kennedy, J., concurring in
judgment), the quoted language from WRTL provides a sufficient
framework for protecting the relevant First Amendment interests
in this case. We shall employ it here.
Premised on mistrust of governmental power, the First
Amendment stands against attempts to disfavor certain subjects
or viewpoints. See, e.g., United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803, 813, 120 S. Ct. 1878, 146 L. Ed. 2d
865 (2000) (striking down content based restriction). Prohibited,
too, are restrictions distinguishing among different speakers,
allowing speech by some but not others. See First Nat. Bank of
Boston v. Bellotti, 435 U.S. 765, 784, 98 S. Ct. 1407, 55 L. Ed. 2d
707 (1978). As instruments to censor, these categories are
interrelated: Speech restrictions based on the identity of the
speaker are all too often simply a means to control content.
Quite apart from the purpose or effect of regulating content,
moreover, the Government may commit a constitutional wrong
when by law it identifies certain preferred speakers. By taking the
right to speak from some and giving it to others, the Government
deprives the disadvantaged person or class of the right to use
speech to strive to establish worth, standing, and respect for the
speaker's voice. The Government may not by these means
deprive the public of the right and privilege to determine for itself
what speech and speakers are worthy of consideration. The First
Amendment protects speech and speaker, and the ideas that flow
from each.
The Court has upheld a narrow class of speech restrictions that
operate to the disadvantage of certain persons, but these rulings
were based on an interest in allowing governmental entities to
perform their functions. See, e.g., Bethel School Dist. No. 403 v.
Fraser, 478 U.S. 675, 683, 106 S. Ct. 3159, 92 L. Ed. 2d 549
(1986) (protecting the "function of public school education");
Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S.
119, 129, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977) (furthering "the
legitimate penological objectives of the corrections system"
(internal quotation marks omitted)); Parker v. Levy, 417 U.S. 733,
759, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974)(ensuring "the
capacity of the Government to discharge its [military]
responsibilities" (internal quotation marks omitted)); Civil Service
Comm'n v. Letter Carriers, 413 U.S. 548, 557, 93 S. Ct. 2880, 37
L. Ed. 2d 796 (1973)("[F]ederal service should depend upon
meritorious performance rather than political service"). The
corporate independent expenditures at issue in this case,
however, would not interfere with governmental functions, so
these cases are inapposite. These precedents stand only for the
proposition that there are certain governmental functions that
cannot operate without some restrictions on particular kinds of
speech. By contrast, it is inherent in the nature of the political
process that voters must be free to obtain information from
diverse sources in order to determine how to cast their votes. At
least before Austin, the Court had not allowed the exclusion of a
class of speakers from the general public dialogue.
We find no basis for the proposition that, in the context of political
speech, the Government may impose restrictions on certain
disfavored speakers. Both history and logic lead us to this
conclusion.
The previous decisions of the US Supreme Court in Austin v.
Michigan Chamber of Commerce  (which ruled that political
99
speech may be banned based on the speaker's corporate
identity) and the relevant portion of McConnell v. Federal Election
Commission  (which upheld the limits on electioneering
100
communications in a facial challenge) were, in effect, overruled
by Citizens United.
Like Citizens Unitedis the 1976 case of Buckley v. Valeo.  In this
101
much earlier case, the US Supreme Court ruled, among other
issues elevated to it for resolution, on a provision of the Federal
Election Campaign Act of 1971, as amended, (FECA)  which 102
limits independent political expenditures by an individual or group
advocating the election or defeat of a clearly identified candidate
for federal office to $1,000 per year. Majority of the US Supreme
Court expressed the view that the challenged provision is
unconstitutional as it impermissibly burdens the right of free
expression under the First Amendment, and could not be
sustained on the basis of governmental interests in preventing the
actuality or appearance of corruption or in equalizing the
resources of candidates. 103
Even so, the rulings in Citizens United and Buckley find bearing
only on matters related to "independent expenditures," an
election law concept which has no application in this jurisdiction.
In the US context, independent expenditures for or against a
particular candidate enjoy constitutional protection. They refer to
those expenses made by an individual, a group or a legal entity
which are not authorized or requested by the candidate, an
authorized committee of the candidate, oran agent of the
candidate; they are expenditures that are not placed in
cooperation with or with the consent of a candidate, his agents, or
an authorized committee of the candidate.  In contrast, there is
104
no similar provision here in the Philippines. In fact, R.A. No.
9006105 and its implementing rules and regulations  specifically
106
make it unlawful to print, publish, broadcast or exhibit any print,
broadcast or outdoor advertisements donated to the candidate
without the written acceptance of said candidate.
If at all, another portion of the Buckley decision is significant to
this case. One of the issues resolved therein is the validity of a
provision of the FECA which imposes $1,000 limitation on political
contributions by individuals and groups to candidates and
authorized campaign committees.  Five justices of the nine-
107
member US Supreme Court sustained the challenged provision
on the grounds that it does not violate First Amendment speech
and association rights or invidiously discriminate against non-
incumbent candidates and minority party candidates but is
supported by substantial governmental interests in limiting
corruption and the appearance of corruption. It was held:
As the general discussion in Part I-A, supra, indicated, the
primary First Amendment problem raised by the Act's contribution
limitations is their restriction of one aspect of the contributor's
freedom of political association. The Court's decisions involving
associational freedoms establish that the right of association is a
"basic constitutional freedom," Kusper v. Pontikes, 414 U.S. at
57, that is "closely allied to freedom of speech and a right which,
like free speech, lies at the foundation of a free society." Shelton
v. Tucker, 364 U.S. 479, 486 (1960). See, e.g., Bates v. Little
Rock, 361 U.S. 516, 522-523 (1960); NAACP v. Alabama, supra
at 460-461; NAACP v. Button, supra, at 452(Harlan, J.,
dissenting). In view of the fundamental nature of the rightto
associate, governmental "action which may have the effect of
curtailing the freedom to associate is subject to the closest
scrutiny." NAACP v. Alabama, supra, at 460-461. Yet, it is clear
that "[n]either the right to associate nor the right to participate in
political activities is absolute." CSC v. Letter Carriers, 413 U.S.
548, 567 (1973). Even a "significant interference' with protected
rights of political association" may be sustained if the State
demonstrates a sufficiently important interest and employs means
closely drawn to avoid unnecessary abridgment of associational
freedoms. Cousins v. Wigoda, supra, at 488; NAACP v. Button,
supra, at 438; Shelton v. Tucker, supra, at 488.
Appellees argue that the Act's restrictions on large campaign
contributions are justified by three governmental interests.
According to the parties and amici, the primary interest served by
the limitations and, indeed, by the Act as a whole, is the
prevention of corruption and the appearance of corruption
spawned by the real or imagined coercive influence of large
financial contributions on candidates' positions and on their
actions if elected to office. Two "ancillary" interests underlying the
Act are also allegedly furthered by the $ 1,000 limits on
contributions. First, the limits serve to mute the voices of affluent
persons and groups in the election process and thereby to
equalize the relative ability of all citizens to affect the outcome of
elections. Second, it is argued, the ceilings may to some extent
act as a brake on the skyrocketing cost of political campaigns and
thereby serve to open the political systemmore widely to
candidates without access to sources of large amounts of money.
It is unnecessary to look beyond the Act's primary purpose -- to
limit the actuality and appearance of corruption resulting from
large individual financial contributions -- in order to find a
constitutionally sufficient justification for the $ 1,000 contribution
limitation. Under a system of private financing of elections, a
candidate lacking immense personal or family wealth must
depend on financial contributions from others to provide the
resources necessary to conduct a successful campaign. The
increasing importance of the communications media and
sophisticated mass-mailing and polling operations to effective
campaigning make the raising of large sums of money an ever
more essential ingredient of an effective candidacy. To the extent
that large contributions are given to secure political quid pro quo's
from current and potential office holders, the integrity of our
system of representative democracy is undermined. Although the
scope of such pernicious practices can never be reliably
ascertained, the deeply disturbing examples surfacing after the
1972 election demonstrate that the problem is not an illusory one.
Of almost equal concern as the danger of actual quid pro quo
arrangements is the impact of the appearance of corruption
stemming from public awareness of the opportunities for abuse
inherent in a regime of large individual financial contributions. In
CSC v. Letter Carriers, supra, the Court found that the danger to
"fair and effective government" posed by partisan political
conduct on the part of federal employees charged with
administering the law was a sufficiently important concern to
justify broad restrictions on the employees' right of partisan
political association. Here, as there, Congress could legitimately
conclude that the avoidance of the appearance of improper
influence "is also critical... if confidence in the system of
representative Government is not to be eroded to a disastrous
extent." 413 U.S. at 565.
Appellants contend that the contribution limitations must be
invalidated because bribery laws and narrowly drawn disclosure
requirements constitute a less restrictive means of dealing with
"proven and suspected quid pro quo arrangements." But laws
making criminal the giving and taking of bribes deal withonly the
most blatant and specific attempts of those with money to
influence governmental action. And while disclosure requirements
serve the many salutary purposes discussed elsewhere in this
opinion, Congress was surely entitled to conclude that disclosure
was only a partial measure,and that contribution ceilings were a
necessary legislative concomitant to deal with the reality or
appearance of corruption inherent in a system permitting
unlimited financial contributions, even when the identities of the
contributors and the amounts of their contributions are fully
disclosed.
The Act's $ 1,000 contribution limitation focuses precisely on the
problem of large campaign contributions-- the narrow aspect of
political association where the actuality and potential for
corruption have been identified -- while leaving persons free to
engage in independent political expression, to associate actively
through volunteering their services, and to assist to a limited but
nonetheless substantial extent in supporting candidates and
committees with financial resources. Significantly, the Act's
contribution limitations in themselves do not undermine to any
material degree the potential for robust and effective discussion
of candidates and campaign issues by individual citizens,
associations, the institutional press, candidates, and political
parties.
We find that, under the rigorous standard of review established by
our prior decisions, the weighty interests served by restricting the
size of financial contributions to political candidates are sufficient
to justify the limited effect upon First Amendment freedoms
caused by the $ 1,000 contribution ceiling. (Emphasis supplied)
Until now, the US Supreme Court has not overturned the ruling
that, with respect to limiting political contributions by individuals
and groups, the Government’s interest in preventing quid pro quo
corruption or its appearance was "sufficiently important" or
"compelling" so that the interest would satisfy even strict
scrutiny.
108
In any event, this Court should accentuate that resort to foreign
jurisprudence would be proper only if no law or jurisprudence is
available locally to settle a controversy and that even in the
absence of local statute and case law, foreign jurisprudence are
merely persuasive authority at best since they furnish an
uncertain guide.  We prompted in Republic of the Philippines v.
109
Manila Electric Company: 110
x x x American decisions and authorities are not per se controlling
in this jurisdiction. At best, they are persuasive for no court holds
a patent on correct decisions.Our laws must be construed in
accordance with the intention of our own lawmakers and such
intent may be deduced from the language of each law and the
context of other local legislation related thereto. More importantly,
they must be construed to serve our own public interest which is
the be-all and the end-all of all our laws. And it need not be
stressed that our public interest is distinct and different from
others.111
and once more in Central Bank Employees Assoc., Inc. v.
Bangko Sentral Ng Pilipinas: 112
x x x [A]merican jurisprudence and authorities, much less the
American Constitution, are of dubious application for these are no
longer controlling within our jurisdiction and have only limited
persuasive merit insofar as Philippine constitutional law is
concerned.... [I]n resolving constitutional disputes, [this Court]
should not be beguiled by foreign jurisprudence some of which
are hardly applicable because they have been dictated by
different constitutional settings and needs." Indeed, although the
Philippine Constitution can trace its origins to that of the United
States, their paths of development have long since diverged. 113
Indeed, in Osmeña v. COMELEC,  this Court, in reaffirming its
114
ruling in National Press Club v. Commission on Elections  that
115
Section 11 (b) of R.A. No. 6646  does not invade and violate the
116
constitutional guarantees comprising freedom of expression,
remarked in response to the dissent of Justice Flerida Ruth P.
Romero:
On the other hand, the dissent of Justice Romero in the present
case, in batting for an "uninhibited market place of ideas," quotes
the following from Buckley v. Valeo:
[T]he concept that the government may restrict the speech of
some elements in our society in order to enhance the relative
voice of the others is wholly foreign to the First Amendment which
was designed to "secure the widest possible dissemination
ofinformation from diverse and antagonistic sources" and "to
assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people."
But do we really believe in that? That statement was made to
justify striking down a limit on campaign expenditure on the
theory that money is speech. Do those who endorse the view that
government may not restrict the speech of some in order to
enhance the relative voice of others also think that the campaign
expenditure limitation found in our election laws is
unconstitutional? How about the principle of one person, one
vote, is this not based on the political equality of voters? Voting
after all is speech. We speak of it as the voiceof the people –
even of God. The notion that the government may restrictthe
speech of some in order to enhance the relative voice of
othersmay be foreign to the American Constitution. It is not to the
Philippine Constitution, being in fact an animating principle of that
document.
Indeed, Art. IX-C, §4 is not the only provision in the Constitution
mandating political equality. Art. XIII, §1 requires Congress to
give the "highest priority" to the enactment of measures designed
to reduce political inequalities, while Art. II, §26 declaresas a
fundamental principle of our government "equal access to
opportunities for public service." Access to public office will be
deniedto poor candidates if they cannot even have access to
mass media in order to reach the electorate. What fortress
principle trumps or overrides these provisions for political
equality? Unless the idealism and hopes which fired the
imagination of those who framed the Constitution now appeardim
to us, how can the electoral reforms adopted by them to
implement the Constitution, of which §11(b) of R.A. No. 6646, in
relation to §§90 and 92 are part, be considered infringements on
freedom of speech? That the framers contemplated regulation of
political propaganda similar to §11(b) is clear from the following
portion of the sponsorship speech of Commissioner Vicente B.
Foz:
MR. FOZ. . . . Regarding the regulation by the Commission of the
enjoyment or utilization of franchises or permits for the operation
of transportation and other public utilities, media of
communication or information, all grants, special privileges or
concessions granted by the Government, there is a provision that
during the election period, the Commission may regulate, among
other things, the rates, reasonable free space, and time
allotments for public information campaigns and forums among
candidates for the purpose of ensuring free, orderly, honest and
peaceful elections. This has to do with the media of
communication or information.  Proceeding from the above, the
117
Court shall now rule on Ejercito’s proposition that the legislature
imposes no legal limitation on campaign donations. He vigorously
asserts that COMELEC Resolution No. 9476 distinguishes
between "contribution" and "expenditure" and makes no
proscription on the medium or amount of contribution madeby
third parties in favor of the candidates, while the limit set by law,
as appearing in COMELEC Resolution No. 9615, applies only to
election expenditures of candidates.
We deny.
Section 13 of R.A. No. 7166  sets the current allowable limit on
118
expenses of candidates and political parties for election
campaign, thus:
SEC. 13. Authorized Expenses of Candidates and Political
Parties. – The aggregate amount that a candidate or registered
politicalparty may spend for election campaign shall be as
follows:
(a) For candidates – Ten pesos (₱10.00) for President
and Vice President; and for other candidates, Three
pesos (₱3.00) for every voter currently registered in the
constituency where he filed his certificate of candidacy:
Provided, That, a candidate without any political party and
without support from any political party may be allowed to
spend Five pesos (₱5.00) for every such voter; and
(b) For political parties - Five pesos (₱5.00) for every
voter currently registered in the constituency or
constituencies where it has official candidates.
Any provision of law to the contrary notwithstanding, any
contribution in cash or in kind to any candidate or political party or
coalition of parties for campaign purposes, duly reported to the
Commission, shall not be subject to the payment of any gift tax. 119
Sections 100, 101, and 103 of the OEC are not repealed by R.A.
No. 7166.  These provisions, which are merely amended insofar
120
as the allowable amount is concerned, read:
SECTION 100. Limitations upon expenses of candidates.– No
candidate shall spend for his election campaign an aggregate
amount exceeding one peso and fifty centavos for every voter
currently registered in the constituency where he filed his
candidacy: Provided, That the expenses herein referred to shall
include those incurred or caused to be incurred by the candidate,
whether in cash or in kind, including the use, rental or hire of land,
water or aircraft, equipment, facilities, apparatus and
paraphernalia used in the campaign: Provided, further, That
where the land, water or aircraft, equipment, facilities, apparatus
and paraphernalia used is owned by the candidate, his
contributor or supporter, the Commission is hereby empowered
toassess the amount commensurate with the expenses for the
use thereof, based on the prevailing rates in the locality and shall
be included in the total expenses incurred by the candidate.
SECTION 101. Limitations upon expenses of political parties.– A
duly accredited political party may spend for the election of its
candidates in the constituency or constituencies where it has
official candidates an aggregate amount not exceeding the
equivalent of one peso and fifty centavos for every voter currently
registered therein. Expenses incurred by branches, chapters, or
committees of such political party shall be included in the
computation of the total expenditures of the political party.
Expenses incurred by other political parties shall be considered
as expenses of their respective individual candidates and subject
to limitation under Section 100 of this Code.
SECTION 103. Persons authorized to incur election
expenditures.– No person, except the candidate, the treasurer of
a political party or any person authorized by such candidate or
treasurer, shall make any expenditure in support of or in
opposition to any candidate or political party. Expenditures duly
authorized by the candidate or the treasurer of the party shall be
considered as expenditures of such candidate or political party.
The authority to incur expenditures shall be in writing, copy of
which shall be furnished the Commission signed by the candidate
or the treasurer of the party and showing the expenditures so
authorized, and shall state the full name and exact address of the
person so designated. (Emphasis supplied) 121
The focal query is: How shall We interpret "the expenses herein
referred to shall include those incurred or caused to be incurred
by the candidate"and "except the candidate, the treasurer of a
political party or any person authorized by such candidate or
treasurer"found in Sections 100 and 103, respectively, of the
OEC? Do these provisions exclude from the allowable election
expenditures the contributions of third parties made with the
consent of the candidate? The Court holds not.
When the intent of the law is not apparent as worded, or when the
application of the law would lead to absurdity, impossibility or
injustice, extrinsic aids of statutory construction may be resorted
to such as the legislative history of the law for the purpose of
solving doubt, and that courts may take judicial notice of the
origin and history of the law, the deliberations during the
enactment, as well as prior laws on the same subject matter in
order to ascertain the true intent or spirit of the law.
122
Looking back, it could be found that Sections 100, 101, and 103
of the OEC are substantially lifted from P.D. No. 1296,  as 123
amended. Sections 51, 52 and 54 of which specifically provide:
Section 51. Limitations upon expenses of candidates. No
candidate shall spend for his election campaign an amount more
than the salary or the equivalent of the total emoluments for one
year attached to the office for which he is a candidate: Provided,
That the expenses herein referred to shall include those incurred
by the candidate, his contributors and supporters,whether in cash
or in kind, including the use, rental or hire of land, water or air
craft, equipment, facilities, apparatus and paraphernalia used in
the campaign: Provided, further,That, where the land, water or air
craft, equipment, facilities, apparatus and paraphernalia used is
owned by the candidate, his contributor or supporter, the
Commission is hereby empowered to assess the amount
commensurate with the expenses for the use thereof, based on
the prevailing rates in the locality and shall be included in the total
expenses incurred by the candidate.
In the case of candidates for the interim Batasang Pambansa,
they shall not spend more than sixty thousand pesos for their
election campaign.
Section 52. Limitation upon expenses of political parties, groups
or aggrupations.A political party, group or aggrupation may not
spend for the election of its candidates in the constituency or
constituencies where it has official candidates anaggregate
amount more than the equivalent of fifty centavos for every voter
currently registered therein: Provided, That expenses incurred by
such political party, group or aggrupation not duly registered with
the Commission and/or not presenting or supporting a complete
list of candidates shall be considered as expenses of its
candidates and subject to the limitation under Section 51 of this
Code. Expenses incurred by branches, chapters or committees of
a political party, group or aggrupation shall be included in the
computation of the total expenditures of the political party, group
or aggrupation. (Emphasis supplied)
Section 54. Persons authorized to incur election expenditures.No
person, except the candidate or any person authorized by him or
the treasurer of a political party, group or aggrupation, shall make
any expenditure in support of, or in opposition to any candidate or
political party, group or aggrupation. Expenditures duly authorized
by the candidate of the treasurer of the party, group or
aggrupation shall be considered as expenditure of such candidate
or political party, group or aggrupation.
The authority to incur expenditures shall be in writing, copy of
which shall be furnished the Commission, signed by the
candidate or the treasurer of the party, group or aggrupation and
showing the expenditure so authorized, and shall state the full
nameand exact address of the person so designated. (Emphasis
supplied)
Prior to P.D. No. 1296, R.A. No. 6388 (otherwise known as the
"Election Code of 1971") was enacted.  Sections 41 and 42 of
124
which are relevant, to quote:
Section 41. Limitation Upon Expenses of Candidates.– No
candidate shall spend for his election campaign more than the
total amount of salary for the full term attached to the office for
which he is a candidate.
Section 42. Limitation Upon Expenses of Political Parties and
Other Nonpolitical Organizations.– No political party as defined in
this Code shall spend for the election of its candidates an
aggregate amount more than the equivalent of one peso for every
voter currently registered throughout the country in case of a
regular election, orin the constituency in which the election shall
be held in case of a special election which is not held in
conjunction with a regular election. Any other organization not
connected with any political party, campaigning for or against a
candidate, or for or against a political party shall not spend more
than a total amount of five thousand pesos. (Emphasis supplied)
Much earlier, Section 12 (G) of R.A. No. 6132,  which
125
implemented the resolution of both Houses ofCongress calling for
a constitutional convention, explicitly stated:
Section 12. Regulations of Election Spending and Propaganda.
The following provisions shall govern election spending and
propaganda in the election provided for in this Act:
xxx
(G) All candidates and all other persons making or receiving
expenditures, contributions or donations which in their totality
exceed fifty pesos, in order to further or oppose the candidacy of
any candidate, shall file a statement of all such expenditures and
contributions made or received on such dates and withsuch
details as the Commission on Elections shall prescribe by rules.
The total expenditures made by a candidate, or by any other
person with the knowledge and consent of the candidate, shall
not exceed thirty-two thousand pesos. (Emphasis supplied)
In tracing the legislative history of Sections 100, 101, and 103 of
the OEC, it can be said, therefore, that the intent of our
lawmakers has been consistent through the years: to regulate not COMELEC First Division, granting the petition for disqualification
just the election expenses of the candidate but also of his or her filed by private respondent Edgar "Egay" S. San Luis against
contributor/supporter/donor as well as by including in the petitioner Emilio Ramon "E.R." P. Ejercito, is hereby AFFIRMED.
aggregate limit of the former’s election expenses those incurred
by the latter.  The phrase "those incurred or caused to be
1awp++i1
SO ORDERED.
incurred by the candidate"is sufficiently adequate to cover those
expenses which are contributed or donated in the candidate’s
behalf. By virtue of the legal requirement that a contribution or
donation should bear the written conformity of the candidate, a
contributor/supporter/donor certainly qualifies as "any person
authorized by such candidate or treasurer." Ubi lex non distinguit,
nec nos distinguere debemus.  (Where the law does not
126

distinguish, neither should We.) There should be no distinction in

the application of a law where none is indicated.

The inclusion of the amount contributed by a donor to the

candidate’s allowable limit of election expenses does not trample
upon the free exercise of the voters’ rights of speech and of
expression under Section 4, Artticle III of the Constitution. As a
content-neutral regulation,  the law’s concern is not to curtail the
127

message or content of the advertisement promoting a particular

candidate but to ensure equality between and among aspirants G.R. No. 181613               November 25, 2009
with "deep pockets" and those with less financial resources. Any
restriction on speech or expression is only incidentaland is no ROSALINDA A. PENERA, Petitioner,
more than necessary to achieve the substantial governmental vs.
interest of promoting equality of opportunity in political COMMISSION ON ELECTIONS and EDGAR T.
advertising. It bears a clear and reasonable connection with the ANDANAR, Respondents.
constitutional objectives set out in Section 26, Article II, Section 4,
Article IX-C, and Section 1, Art. XIII of the Constitution.128

RESOLUTION
Indeed, to rule otherwise would practically result in an unlimited
expenditure for political advertising, which skews the political CARPIO, J.:
process and subverts the essence of a truly democratic form of
government. We grant Rosalinda A. Penera’s (Penera) motion for
reconsideration of this Court’s Decision of 11 September 2009
WHEREFORE, the Petition is DENIED. The May 21, 2014 (Decision).
Resolution of the COMELEC En Banc in SPA No. 13-306 (DC),
which upheld the September 26, 2013 Resolution of the
The assailed Decision dismissed Penera’s petition and affirmed
the Resolution dated 30 July 2008 of the COMELEC En Banc as
well as the Resolution dated 24 July 2007 of the COMELEC
Second Division. The Decision disqualified Penera from running
for the office of Mayor in Sta. Monica, Surigao del Norte and
declared that the Vice-Mayor should succeed Penera.
In support of her motion for reconsideration, Penera submits the
following arguments:
1. Penera was not yet a candidate at the time of the
incident under Section 11 of RA 8436 as amended by
Section 13 of RA 9369.
2. The petition for disqualification failed to submit
convincing and substantial evidence against Penera for
violation of Section 80 of the Omnibus Election Code.
3. Penera never admitted the allegations of the petition for
disqualification and has consistently disputed the charge
of premature campaigning.
4. The admission that Penera participated in a motorcade
is not the same as admitting she engaged in premature
election campaigning.
Section 79(a) of the Omnibus Election Code defines a
"candidate" as "any person aspiring for or seeking an elective
public office, who has filed a certificate of candidacy x x x." The
second sentence, third paragraph, Section 15 of RA 8436, as
amended by Section 13 of RA 9369, provides that "[a]ny person
who files his certificate of candidacy within [the period for
filing] shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of candidacy."
The immediately succeeding proviso in the same third paragraph
states that "unlawful acts or omissions applicable to a candidate
shall take effect only upon the start of the aforesaid campaign
period." These two provisions determine the resolution of this
case.
The Decision states that "[w]hen the campaign period starts and
[the person who filed his certificate of candidacy] proceeds with
his/her candidacy, his/her intent turning into actuality, we can
already consider his/her acts, after the filing of his/her COC and
prior to the campaign period, as the promotion of his/her election
as a candidate, hence, constituting premature campaigning, for
which he/she may be disqualified." 1
Under the Decision, a candidate may already be liable for
premature campaigning after the filing of the certificate of
candidacy but even before the start of the campaign period. From
the filing of the certificate of candidacy, even long before the start
of the campaign period, the Decision considers the partisan
political acts of a person so filing a certificate of candidacy "as the
promotion of his/her election as a candidate." Thus, such person
can be disqualified for premature campaigning for acts done
before the start of the campaign period. In short, the Decision
considers a person who files a certificate of candidacy already a
"candidate" even before the start of the campaign period.  lawphil
The assailed Decision is contrary to the clear intent and letter of
the law.
The Decision reverses Lanot v. COMELEC,2 which held that a
person who files a certificate of candidacy is not a candidate
until the start of the campaign period. In Lanot, this
Court explained:
Thus, the essential elements for violation of Section 80 of the
Omnibus Election Code are: (1) a person engages in an election
campaign or partisan political activity; (2) the act is designed to
promote the election or defeat of a particular candidate or
candidates; (3) the act is done outside the campaign period.
The second element requires the existence of a "candidate."
Under Section 79(a), a candidate is one who "has filed a
certificate of candidacy" to an elective public office. Unless one
has filed his certificate of candidacy, he is not a "candidate." The
third element requires that the campaign period has not started
when the election campaign or partisan political activity is
committed.
Assuming that all candidates to a public office file their certificates
of candidacy on the last day, which under Section 75 of the
Omnibus Election Code is the day before the start of the
campaign period, then no one can be prosecuted for violation of
Section 80 for acts done prior to such last day. Before such last
day, there is no "particular candidate or candidates" to campaign
for or against. On the day immediately after the last day of filing,
the campaign period starts and Section 80 ceases to apply since
Section 80 covers only acts done "outside" the campaign period.
Thus, if all candidates file their certificates of candidacy on the
last day, Section 80 may only apply to acts done on such last
day, which is before the start of the campaign period and after at
least one candidate has filed his certificate of candidacy. This is
perhaps the reason why those running for elective public office
usually file their certificates of candidacy on the last day or close
to the last day.
There is no dispute that Eusebio’s acts of election campaigning or
partisan political activities were committed outside of the
campaign period. The only question is whether Eusebio, who filed
his certificate of candidacy on 29 December 2003, was a
"candidate" when he committed those acts before the start of the
campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the
deadline for the filing of certificates of candidacy to 120 days
before election day. Thus, the original deadline was moved from
23 March 2004 to 2 January 2004, or 81 days earlier. The crucial
question is: did this change in the deadline for filing the certificate
of candidacy make one who filed his certificate of candidacy
before 2 January 2004 immediately liable for violation of Section
80 if he engaged in election campaign or partisan political
activities prior to the start of the campaign period on 24 March
2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. – The Commission shall prescribe
the size and form of the official ballot which shall contain the titles
of the positions to be filled and/or the propositions to be voted
upon in an initiative, referendum or plebiscite. Under each
position, the names of candidates shall be arranged
alphabetically by surname and uniformly printed using the same
type size. A fixed space where the chairman of the Board of
Election Inspectors shall affix his/her signature to authenticate the
official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/ manifestation to participate in
the election shall not be later than one hundred twenty (120) days
before the elections: Provided, That, any elective official, whether
national or local, running for any office other than the one which
he/she is holding in a permanent capacity, except for president
and vice-president, shall be deemed resigned only upon the start
of the campaign period corresponding to the position for which
he/she is running: Provided, further, That, unlawful acts or
omissions applicable to a candidate shall take effect upon the
start of the aforesaid campaign period: Provided, finally, That, for
purposes of the May 11, 1998 elections, the deadline for filing of
the certificate of candidacy for the positions of President, Vice-
President, Senators and candidates under the party-list system
as well as petitions for registration and/or manifestation to
participate in the party-list system shall be on February 9, 1998
while the deadline for the filing of certificate of candidacy for other
positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
and/or the Bangko Sentral ng Pilipinas at the price comparable
with that of private printers under proper security measures which SENATOR GONZALES. And you cannot say that the campaign
the Commission shall adopt. The Commission may contract the period has not yet began (sic).
services of private printers upon certification by the National
Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that
printing requirements. Accredited political parties and deputized the filing of the certificate will not bring about one’s being a
citizens’ arms of the Commission may assign watchers in the candidate.
printing, storage and distribution of official ballots.
SENATOR GONZALES. If that’s a fact, the law cannot change a
To prevent the use of fake ballots, the Commission through the fact.
Committee shall ensure that the serial number on the ballot stub
shall be printed in magnetic ink that shall be easily detectable by
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide
inexpensive hardware and shall be impossible to reproduce on a
that the filing of the certificate of candidacy will not result in that
photocopying machine, and that identification marks, magnetic
official vacating his position, we can also provide that insofar he is
strips, bar codes and other technical and security markings, are
concerned, election period or his being a candidate will not yet
provided on the ballot.
commence. Because here, the reason why we are doing an early
filing is to afford enough time to prepare this machine readable
The official ballots shall be printed and distributed to each ballots.
city/municipality at the rate of one (1) ballot for every registered
voter with a provision of additional four (4) ballots per precinct.
So, with the manifestations from the Commission on Elections,
Mr. Chairman, the House Panel will withdraw its proposal and will
Under Section 11 of RA 8436, the only purpose for the early filing agree to the 120-day period provided in the Senate version.
of certificates of candidacy is to give ample time for the printing of
official ballots. This is clear from the following deliberations of the
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr.
Bicameral Conference Committee:
Chairman.
SENATOR GONZALES. Okay. Then, how about the campaign
xxxx
period, would it be the same[,] uniform for local and national
officials?
SENATOR GONZALES. How about prohibition against
campaigning or doing partisan acts which apply immediately upon
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree
being a candidate?
to retaining it at the present periods.
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention
SENATOR GONZALES. But the moment one files a certificate of
of this provision is just to afford the Comelec enough time to print
candidacy, he’s already a candidate, and there are many
the ballots, this provision does not intend to change the campaign
prohibited acts on the part of candidate.
periods as presently, or rather election periods as presently fixed
by existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be
subject to the other prohibition.
THE CHAIRMAN (REP. TANJUATCO). That’s right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually,
there would be no conflict anymore because we are talking about
the 120-day period before election as the last day of filing a
certificate of candidacy, election period starts 120 days also. So
that is election period already. But he will still not be considered
as a candidate.
Thus, because of the early deadline of 2 January 2004 for
purposes of printing of official ballots, Eusebio filed his certificate
of candidacy on 29 December 2003. Congress, however, never
intended the filing of a certificate of candidacy before 2 January
2004 to make the person filing to become immediately a
"candidate" for purposes other than the printing of ballots. This
legislative intent prevents the immediate application of Section 80
of the Omnibus Election Code to those filing to meet the early
deadline. The clear intention of Congress was to preserve the
"election periods as x x x fixed by existing law" prior to RA 8436
and that one who files to meet the early deadline "will still not be
considered as a candidate."3 (Emphasis in the original)
Lanot was decided on the ground that one who files a certificate
of candidacy is not a candidate until the start of the campaign
period. This ground was based on the deliberations of the
legislators who explained the intent of the provisions of RA 8436,
which laid the legal framework for an automated election system.
There was no express provision in the original RA 8436 stating
that one who files a certificate of candidacy is not a candidate
until the start of the campaign period.
When Congress amended RA 8436, Congress decided to
expressly incorporate the Lanot doctrine into law, realizing that
Lanot merely relied on the deliberations of Congress in holding
that —
The clear intention of Congress was to preserve the "election
periods as x x x fixed by existing law" prior to RA 8436 and that
one who files to meet the early deadline "will still not be
considered as a candidate."4 (Emphasis supplied)
Congress wanted to insure that no person filing a certificate of
candidacy under the early deadline required by the automated
election system would be disqualified or penalized for any
partisan political act done before the start of the campaign period.
Thus, in enacting RA 9369, Congress expressly wrote the Lanot
doctrine into the second sentence, third paragraph of the
amended Section 15 of RA 8436, thus:
xxx
For this purpose, the Commission shall set the deadline for the
filing of certificate of candidacy/petition for
registration/manifestation to participate in the election. Any
person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of candidacy:
Provided, That, unlawful acts or omissions applicable to a
candidate shall take effect only upon the start of the aforesaid
campaign period: Provided, finally, That any person holding a
public appointive office or position, including active members of
the armed forces, and officers and employees in government-
owned or -controlled corporations, shall be considered ipso facto
resigned from his/her office and must vacate the same at the start
of the day of the filing of his/her certificate of candidacy.
(Boldfacing and underlining supplied)
Congress elevated the Lanot doctrine into a statute by specifically
inserting it as the second sentence of the third paragraph of the
amended Section 15 of RA 8436, which cannot be annulled by
this Court except on the sole ground of its unconstitutionality. The
Decision cannot reverse Lanot without repealing this second
sentence, because to reverse Lanot would mean repealing this
second sentence.
The assailed Decision, however, in reversing Lanot does not
claim that this second sentence or any portion of Section 15 of
RA 8436, as amended by RA 9369, is unconstitutional. In fact,
the Decision considers the entire Section 15 good law. Thus, the
Decision is self-contradictory — reversing Lanot but maintaining
the constitutionality of the second sentence, which embodies the
Lanot doctrine. In so doing, the Decision is irreconcilably in
conflict with the clear intent and letter of the second sentence,
third paragraph, Section 15 of RA 8436, as amended by RA
9369.
In enacting RA 9369, Congress even further clarified the first
proviso in the third paragraph of Section 15 of RA 8436. The
original provision in RA 8436 states —
x x x Provided, further, That, unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the
aforesaid campaign period, x x x.
In RA 9369, Congress inserted the word "only" so that the first
proviso now reads —
x x x Provided, That, unlawful acts or omissions applicable to a
candidate shall take effect only upon the start of the aforesaid
campaign period x x x. (Emphasis supplied)
Thus, Congress not only reiterated but also strengthened its
mandatory directive that election offenses can be committed by a
candidate "only" upon the start of the campaign period. This
clearly means that before the start of the campaign period, such
election offenses cannot be so committed.
When the applicable provisions of RA 8436, as amended by RA
9369, are read together, these provisions of law do not consider
Penera a candidate for purposes other than the printing of ballots,
until the start of the campaign period. There is absolutely no room
for any other interpretation.
We quote with approval the Dissenting Opinion of Justice Antonio
T. Carpio:
x x x The definition of a "candidate" in Section 79(a) of the
Omnibus Election Code should be read together with the
amended Section 15 of RA 8436. A "‘candidate’ refers to any
person aspiring for or seeking an elective public office, who has
filed a certificate of candidacy by himself or through an accredited
political party, aggroupment or coalition of parties." However, it is
no longer enough to merely file a certificate of candidacy for a
person to be considered a candidate because "any person who
files his certificate of candidacy within [the filing] period shall only
be considered a candidate at the start of the campaign period for
which he filed his certificate of candidacy." Any person may thus
file a certificate of candidacy on any day within the prescribed
period for filing a certificate of candidacy yet that person shall be
considered a candidate, for purposes of determining one’s
possible violations of election laws, only during the campaign
period. Indeed, there is no "election campaign" or "partisan
political activity" designed to promote the election or defeat of a
particular candidate or candidates to public office simply because
there is no "candidate" to speak of prior to the start of the
campaign period. Therefore, despite the filing of her certificate of
candidacy, the law does not consider Penera a candidate at the
time of the questioned motorcade which was conducted a day
before the start of the campaign period. x x x
The campaign period for local officials began on 30 March 2007
and ended on 12 May 2007. Penera filed her certificate of
candidacy on 29 March 2007. Penera was thus a candidate on 29
March 2009 only for purposes of printing the ballots. On 29 March
2007, the law still did not consider Penera a candidate for
purposes other than the printing of ballots. Acts committed by
Penera prior to 30 March 2007, the date when she became a
"candidate," even if constituting election campaigning or partisan
political activities, are not punishable under Section 80 of the
Omnibus Election Code. Such acts are within the realm of a
citizen’s protected freedom of expression. Acts committed by
Penera within the campaign period are not covered by Section 80
as Section 80 punishes only acts outside the campaign period. 5
The assailed Decision gives a specious reason in explaining
away the first proviso in the third paragraph, the amended
Section 15 of RA 8436 that election offenses applicable to
candidates take effect only upon the start of the campaign period.
The Decision states that:
x x x [T]he line in Section 15 of Republic Act No. 8436, as
amended, which provides that "any unlawful act or omission
applicable to a candidate shall take effect only upon the start of
the campaign period," does not mean that the acts constituting
premature campaigning can only be committed, for which the
offender may be disqualified, during the campaign period.
Contrary to the pronouncement in the dissent, nowhere in said
proviso was it stated that campaigning before the start of the
campaign period is lawful, such that the offender may freely carry
out the same with impunity.
As previously established, a person, after filing his/her COC but
prior to his/her becoming a candidate (thus, prior to the start of
the campaign period), can already commit the acts described
under Section 79(b) of the Omnibus Election Code as election
campaign or partisan political activity, However, only after said
person officially becomes a candidate, at the beginning of the
campaign period, can said acts be given effect as premature
campaigning under Section 80 of the Omnibus Election Code.
Only after said person officially becomes a candidate, at the start
of the campaign period, can his/her disqualification be sought for
acts constituting premature campaigning. Obviously, it is only at
the start of the campaign period, when the person officially
becomes a candidate, that the undue and iniquitous advantages
of his/her prior acts, constituting premature campaigning, shall
accrue to his/her benefit. Compared to the other candidates who
are only about to begin their election campaign, a candidate who
had previously engaged in premature campaigning already
enjoys an unfair headstart in promoting his/her
candidacy.6 (Emphasis supplied)
It is a basic principle of law that any act is lawful unless expressly
declared unlawful by law. This is specially true to expression or
speech, which Congress cannot outlaw except on very narrow
grounds involving clear, present and imminent danger to the
State. The mere fact that the law does not declare an act unlawful
ipso facto means that the act is lawful. Thus, there is no need for
Congress to declare in Section 15 of RA 8436, as amended by
RA 9369, that political partisan activities before the start of the
campaign period are lawful. It is sufficient for Congress to state
that "any unlawful act or omission applicable to a candidate shall
take effect only upon the start of the campaign period." The only
inescapable and logical result is that the same acts, if done
before the start of the campaign period, are lawful.
In layman’s language, this means that a candidate is liable for an
election offense only for acts done during the campaign period,
not before. The law is clear as daylight — any election offense
that may be committed by a candidate under any election law
cannot be committed before the start of the campaign period. In
ruling that Penera is liable for premature campaigning for partisan
political acts before the start of the campaigning, the assailed
Decision ignores the clear and express provision of the law.
The Decision rationalizes that a candidate who commits
premature campaigning can be disqualified or prosecuted only
after the start of the campaign period. This is not what the law WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s
says. What the law says is "any unlawful act or omission Motion for Reconsideration. We SET ASIDE the Decision of this
applicable to a candidate shall take effect only upon the start of Court in G.R. No. 181613 promulgated on 11 September 2009,
the campaign period." The plain meaning of this provision is that as well as the Resolutions dated 24 July 2007 and 30 January
the effective date when partisan political acts become unlawful as 2008 of the COMELEC Second Division and the COMELEC En
to a candidate is when the campaign period starts. Before the Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall
start of the campaign period, the same partisan political acts are continue as Mayor of Sta. Monica, Surigao del Norte.
lawful.
SO ORDERED.
The law does not state, as the assailed Decision asserts, that
partisan political acts done by a candidate before the campaign
period are unlawful, but may be prosecuted only upon the start of
the campaign period. Neither does the law state that partisan
political acts done by a candidate before the campaign period are
temporarily lawful, but becomes unlawful upon the start of the
campaign period. This is clearly not the language of the law.
Besides, such a law as envisioned in the Decision, which defines
a criminal act and curtails freedom of expression and speech,
would be void for vagueness.

Congress has laid down the law — a candidate is liable for

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

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